dnriipU 2Iaui ^rljool IGibratg 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/cu31924022834810 1 vU_g^k-.ia^^ N^oVx^x 5fTTluJe.ll A/ y, PliEFACE TO THE FOURTH EDITIOlf. Thk object ori^nally bad laiisTfew, ih.tliKpreparation of this work, was, to provide a practfeal Torm book for business men, — one thai should be full and complete, and yet simple and clear in its arrange- ment, and easily understood. It has already passed through three large editions, and the publishers have been at length compelled to stereotype it, in order to enable them to supply the demand. It is but reasonable, therefore, to infer, that the public approve of the plan of the work and of its execution. This work is adapted to the Eastern, Northern and Western States. It is sold very extensively in all the New England States, Pennsylvania, Ohio, Indiana, Illinois, Michigan, Wisconsin, and Cali- fornia. The laws of those States being similar in their general char- acter, the Forms included herein are consequently suited to the wants of their officers and business men. To County and Town Officers of every grade, — to business men of all classes, — ^to the farmer, the mechanic, and the merchant, — ^this boiik is beUeved to be a useful and rehable guide and director, as well in the discharge of the public duties that may devolve on them, as in the management of their own private affairs. The Chapters on Auctions. Banks and Corporations, Fees of Officers, Ilomestrad Ex- IT PREFACE. emption, Mechanics' and Laborers' Lien, Plank Roads, Supervisors, Taxes, Town Auditors and Town Houses, — and the references to the Statutes and legal decisions, — are new features in a work of this cha- racter. A considerable amount of information, and a great number of forms, are also contained in each one of the diflferent divisions, which are not to be found in any oth«r work or publication. No more changes have been made in this edition than were abso- lutely necessary. It has been the constant aim of the author and publishers, to have the book conform, in all respects, to the Laws ol the State as existing at the time of the publication of each edition. This has been a leading and peculiar feature of the work. It is pos- sible that some might deem it still more valuable, if it could remain permanent; but a moment's reflection will serve to convince them, that its highest and greatest usefulness must depend on its keeping ap with the modifications and changes that may, from time to time, be made. New Chapters, — on the Exemption of the Homestead of a family from sale on execution, Plank Boads, and the Duties of Supervi- sors, — ^have been inserted in this edition. The third edition of the Revised Statutes having now come into general use, the references herein contained apply to the paging and section numbers of that edition. It may be proper further to state, lest any one not fanuliar with the plan of the work may be led into error, that the words in the forms, in ItaEo letter, contained in brackets, are designed to be merely directory, and those in Ro- man are alone to be inserted, where any variation is proper or ne- cessary. //^/ ZJ// GENEEAL CONTENTS. CHAPTER 1 r^„ Acknowledgment and Proof of Deeds, Mortgages, and other In- struments. — Certificates of Discharge and Satisfaction, .... 9 CHAPTER II. Agreements and Contracts, 28 CHAPTER IIL Apprentices and Servants, 46 CHAPTER IV. .Arbitration and Award 63 CHAPTER V. Assignments, 72 CHAPTER VL Auctions, 86 CHAPTER VIL Banks and Corporations, 92 CHAPTER VIII. Bills of Exchange and Promissory Notes, 102 CHAPTER IX. BiUs of Sale and Chattel Mortgages, 112 CHAPTER X. iSonds 121 VI GENERAL CONTENTS. CHAPTER XL Clerks and Criers, 132 CHAPTER XIL Conveyances by Deed and Mortgage, 149 CHAPTER Xm. Coroners , 1 88 CHAPTER XI7. Covenants , 198 CHAPTER XV. Debtor and Creditor, 203 CHAPTER XVL Dower, 222 CHAPTER XVIL Excise, 230 CHAPTER XVnL Fees of Officers", 236 CHAPTER XIX. Fence Viewers, .~ 260 CHAPTER XX. Ferries 267 CHAPTER XXL Gifts , 271 CHAPTER XXIL Highways,. 274 CHAPTER XXHL Husband and Wife, 318 CHAPTER XXIV. Honoestead Exemption, 329 GENERAL CONTENTS. VII CHAPTER XXV. Justices' Courts, 334 CHAPTER XXVL Landlord and Tenant, 381 CHAPTER XXVII. Lunatics, _ /,g CHAPTER XXVIIL Mechanics' and Laborers' Lien, 418 CHAPTER XXIX. Naturalization, 424 CHAPTER XYY Official Oath and Bond, 429 CHAPTER XXXL Partnership 433 CHAPTER XXXIL Patents, 442 CHAPTER XXXIIL Pension Vouchers, 452 CHAPTER XXXIV. Plank Roads and. Turnpikes, 460 CHAPTER XXXV. Poor Laws 470 CHAPTER XXXVL Powers of Attorney, 502 CHAPTER XXXVIL Receipt and Release, 509 CHAPTER XXXVHL Schools 615 Vin GENERAL CONTENTS. CHAPTEE XXXIX. Service and Eetum of Process in Justices' Courts, 553 QHAPTER XL: Sb!9^8, 562 CHAPTER XLL Supervisors, 564 CHAPTER XUL Taxes, 573 CHAPTER XLin. Town Auditors, 581 CHAPTER XLIV. Tavra Houses, 584 CHAPTER XLV. Wills 686 THE NEW CLERK^S ASSISTANT. CHAPTER I. ACKNOWLEDGMENT AND PROOF OF DEEDS, MORTGAGES, AND OTHER INSTRUMENTS. CERTIFICATES OF DISCHARGE AND SATISFACTION. PRACTICAL REMARKS. 1. In order to entitle a deed or conveyance of land to be recorded, it is necessary that it should be previously acknowledged or proved, before the proper oflScer ; except^ that in New Hampshire and Ver- mont, a deed may be recorded without the acknowledgment, but it will be valid against the claims of creditors and subsequent purcha- sers for sixty days only. The Eevised Statutes of New York require all conveyances of lands, tenements and chattels real, with the exception of leases for a term not exceeding three years, to be recorded.' 2. Deeds or conveyances, though not recorded, are valid as between the parties and their representatives, but not against judg- ment creditors, or subsequent purchasers in good faith. In Mary- land, Vir^nia and North Carolina, however, it is necessary for a deed to be acknowledged and recorded, to pass the title of the grantor. 3. OflSce;'^ authorized to take the proof or acknowledgment of instruments, are restricted in the exercise of their authority for such purposes, to the place or territory to which the jurisdiction of the court to which they belong extends, or to the city, county, or town in and for which they may have been appointed or elected' 4. Justices of the Peace may take the proof or acknowledgment of conveyances or instruments, at any place within the counties in which they reside.' 5. Conveyances of lands vrithin this State, and all contracts, powers of attorney, and other instruments relating to the same, may be acknowledged or proved, as follows : 1 2 R. S., (3d ed.) 40, l§ 1, 4 ; Id. 46, 47, 1 » 2 R. S., (3d ed.) 40, § 4. 5§ 40, 42, 44 ; 8 Wendell, -620 , 15 Id., 588, a Laws of 1840, Chap. 238. 594 ; 6 IMll, 469. , iO IfEW CLERK'S ASSISTANT. 1. In the State: before the Justices of the Supreme Court, County Judges, Mayors and Recorders of cities, Commissioners of Deeds in cities, and Justices of the Peace in the several towns. 2. Out of the State, and in the United States: before the Chief Justice and Associate Justices of the Supreme Court of the United States, District Judges of the United States, the Judges or Justices of the Supreme, Superior, or Circuit Court, of any State or Territory within the United States, the Chief Judge, or any Associate Judge of the Circuit Court of the United States in the District of Columbia, Mayors of cities in the United States, and Commissioners of Deeds ap- pointed by the Governor of this State, in other States and Territories, and the District of Columbia. 3. Out of the United States: before a Judge of the highest Court, in Upper or Lower Canada; before any Consul of the United States, Chargfi d' Affaires, Minister Plenipotentiary, or Minister Extraordinary, resident in any foreign country; before the Mayor of London, the Mayors or Chief Magistrates of Dublin, Edinburgh and Liverpool, and any person specially authorized by a commission under the seal of the Supreme Court of this State.i 6. The proof or acknowledgment of any conveyance or instrument, that may be recorded or read in evidence in this State, when made by any person residing out of the State, and within any other State or Territory of the United States, may be made before any officer of such State or Territory, authorized by the laws thereof to take the proof and acknowledgment of deeds. It is necessary, however, that such officer should know, or have satisfactory evidence, that the person making such acknowledgment is the individual described in, and who executed the conveyance or instrument; also, that to the certificate of the officer, there should be attached a certificate under the name and official seal of the clerk or register of the coimty in which he resides, specifying, that at the time of taking the proof or acknowledgment, he was duly authorized to take the same, and verifying his hand writing.* 7. The official title of an acknowledging officer should always be attached to his certificate, in fuU. If he be a Judge, he should state of what court; if a Commissioner, or Justice of the Peace, the city or county in and for which he is such Commissioner, or Justice, should be mentioned ; and if a Minister Plenipotentiary, or Charge d' Affaires, he should say from what government he is appointed, and to what government he is accredited. 8. Where a deed is proved or acknowledged before a Commissioner of Deeds, Justice of the Peace, or County Judge, not of the degree of Counsellor at law, the certificate of the County Clerk to the 1 2 R. S., (3d ed.) 40, 5 4 j Laws of 1840, 1 « Laws of 1848, Chap. 198. Chap. 238 ; Id., 290 : Laws of 1845, Chap. 109 ; Laws of 1847, Chap. 280. ( ACKNOWLEDGMENTS, ETC. 11 official character of the oflScer taking the proof or acknowledgment, and the genumeness of his signature, should be procured, if the instrument is to be recorded in another county. 9. By the laws of this State, every written instrument, except promissory notes, bills of exchange, and the last wills of deceased persons, may be proved or acknowledged, and read in evidence on the trial of any action, with the same eflfect, and in the same man- ner, as conveyances of real estate.' 10. Where" the execution of a conveyance is acknowledged by the party in person, th^ officer taking the same must certify to the identity.' H. Where the execution is proved by a subscribing witness, he must state his own place of residence, and that he knows the person described in, and who executed the conveyance.' 12. A substantial compliance with the requirements of the statute relative to the proof and acknowledgment of conveyances, and othei- instruments, is all that is required : the identical language of the law need not be used.* 13. Whenever erasures or interlineations occur in any convey- ance, they should be noted previous to the execution, or mentioned in the certificate of the officer taking the proof or acknowledgment' 14. Upon the application of any grantee in any conveyance, or of any person claiming under or through him, verified by oath, repre- senting that a subscribing witness, residing in the county where the application is made, refuses to appear and testify, any olficer author- ized to take proofe or acknowledgments, except Commissioners of Deeds and Justices of the Peace, may issue a subpoena, requiring such witness to appear and testify before him.' 15. Where the subscribing witnesses to a conveyance are dead, proof of its execution may be made before any officer authorized to take proofe or acknowledgments of deeds, other than Commissioners of Deeds, Justices of the Peace, and County Judges, not of the de- gree of counsel in the Supreme Court. The evidence establibhing the death of the witnesses, and of the handwriting of such witnesses, or of either of them, and of the grantor, with the names and places of residence of the witnesses examined before the officer, must be set forth in his certificate. The conveyance having been thus proved and certified, may be recorded in the proper office, provided the original deed is deposited in the same office, to remain there for the inspection of all persons desiring to examine it Such record and deposit wUl be constructive evidence of the execution of the said conveyance, to all subsequent purchasers, although such conveyance, nor the record thereof nor the transcript of the record, can be read in evidence.' 1 Laws of 1833, Chap. 271. I « 2 Barbour's Ch. Rep., 2S2. a 2 R. S. (3d eil.) 42, § 12 ; 11 Johnson, 434 : » 8 Cowen, 71 : 7-Wendell, 364. 2Cowen, 552: 4 Wendell, 661 ; 13 Id., 541. • 2R. S. (3d ed.) 43. 55 16,17. s 2 R. k, (3d ed.) 42, $ 15 ; 7 WendeU. 364 1 1 T 2 R. S., (3d ed.) 46, 55 30-33 1 Hill, 1^1. 12 NEW CLEKK'S ASSISTANT. FORMS. § 1. Certificate of acknowledgment hy party known to the officer. County, ss:' On tWs first day of May, in the year of our Lord one thousand eight hundred and forty-five, before me personally came A. B., to me known to be the individual described in, and who executed the within \or, above, or, annexed] conveyance [or, bond; or, letter of attorney ; or, instrument in writing,] and acknowledged that he executed the same, for the purposes therein mentioned- G. H., County Judge of said county,. § 2. Certificate where identity of Party is proven to the officer. County, ss : On this first day of May, &c., before me personally came A. B., proven to me satisfactorily to be the same person described in, and who executed the within conveyance, by the oath of C. D., subscri- bing witness thereto,^ who being by me duly sworn, did depose and say, that he resided in the city of Auburn, in the county of Cay- uga ; that he was acquainted with the said A. B., and that he knew him to be the same person described in and who executed the within conveyance : and, thereupon, the said A. B. acknowledged that he executed the same. E. F., Justice of the Peace in and for said county. § 3. By Husband and Wife — known to the Officer. County, ss : On this first day of May, &c., before me personally came A. B., and Mary his wife; to me known to be the individuals described in, and who executed the within conveyance, and acknowledged that they executed the same ; and the said Mary acknowledged, on a private examination by me made, apart from her husband, that she executed the said conveyance freely, and without any fear or com- pulsion of him. C. D., Commissioner of Deeds in and for said couhty. § 4. By Hiesband and Wife — proven to the Officer. County, ss : On this first day of May, &c., before me personally came A. B, and Mary his wife, both proven to me satisfactorily to be the same persons described in, and who executed the within conveyance, by 1 If a conveyance or instrument is proved or acknowledged in this State, but to be used or recorded in another State, the name of the State should be inserted in the heading of tile certificate, ak well as that of the county. ' If the person by whose oalh the identity is established, is not a subscribin? witness, the words in italic, in the above andsubse- qiwnt forms inu3t,be omitted. ACKNOWLEDGMENTS, ETC. ■ 13 the oath of John Smith, subscribing witness thereto, who being by me duly sworn, did depose and say, that he resided in the town of in said county ; that he was acquainted with the said A. B., and Mary his wife ; that he knew them to be the same persons described in, and who executed the within conveyance : and, there- upon, they severally acknowledged before me that they executed the same; and the said Mary, &c., [as in § 3, to the end.1t E. F., Justice, &c.' § 5. By Husband and Wife — Husband known, and Wife proven to the Officer. County, ss: On this first day of May, &c., before me personally came A. B., and Mary his wife ; the said A. B. being known to me to be the same person described in, and who executed the witliin conveyance ; and the said Mary being proven to me satisfactorily to be the same per- son described in, and who executed the within conveyance, by the oath of John Smith, subscribing witness thereto, who being by me duly sworn, did depose and say, that he resided in the town of in said county ; that he was acquainted with the said Mary, the wife of the said A. B., and that he knew her to be the same person described in, and who executed the said conveyance ; and, thereupon, the said A. B., and the said Mary his wife, severally acknowledged that they executed the same ; and the said Mary, &c., [as in § 3 to the end.'\ E. R, Jijstice, (fee. § 6. By two Husbands and their Wives. County, ss: On this first day of May, &c., before me personally came A. B., and Mary his wife, and C. D., and Lucy his wife, known to me to be the individuals described in, and who executed the witliin convey- ance, and severally acknowledged that they executed the same ; and the said Mary and Lucy, severally, each for herself acknowledged, on a private examination by me made, apart from her husband,, that she executed the same freely, without any fear or compulsion of him. E. F., Justice, &c . § 7. By Wife in separate Certificate. County, ss : On this first day of May, &c., before me personally came M. B., wife of A. B., described in the within conveyance, the said M. B. being known to me to be the individual described in, and who > The official title of the officer should always be written In full, and not abbreviated. 14 NEW CLEEK'S ASSISTAMT. executed the said conveyance ; and she acknowledged in a private examination by me made, apart from her husband, that she executed the same freely, without any fear or compulsion of him. E. F., Justice, &c. § 8. By two or more Parties. County, ss: On this first day of May, ifec, before me personally came A. B., and C. D., to me known to be the individuals described in, and who executed the within conveyance, and they severally, each for himself acknowledged that they executed the same. E. F., Justice, &c. 8 9. By Jive persons — three Icnown and two identified. County, ss: On this first day of May, &c., before me personally came A. B., C. D., and E. P., to me known to be three of the individuals described in, and who executed the within conveyance; and also came G-. H. and I. J., satisfactorily proven to me to be two of the individuals described in, and who executed the within conveyance, by the oath of M. M., subscribing witness thereto, who being by me duly sworn, did depose and say, that he resided in the town of in said county ; that he was acquainted with the said G. H. and L J., and that he knew them to be the two individuals described in, and who executed the within conveyance : and, thereupon, the said A. B., C. D., E. F., G. H., and I. J., severally acknowledged before me that they executed the same, for the purposes therein mentioned. 0. P., Justice, (fee. § 10. By one of several Parties. County, ss: On this first day of May, I gg • County of , ) ' Salem, May 1, 1847. Then personally appeared before me, the -within \or, above named A. B., and acknowledged \or, and C. B. his wife, and seve- rally acknowledged] the foregoing instrument to be his [or, their] free act and deed. E. F., Justice, &c. § 29. AcTcnowledgment in Pennsylvania. State of Pennsylvania, ) . Mercer County, j The first day of May, &c., before me, one of the Justices of the Peace, [or, one of the Judges of the Court of Ccftnmon Pleas] in and for said county, personally appeared the above named A. B., and acknowledged [or, and C. B. his wife, and severally acknowledged] the foregoing written indenture to be his [or, their] act and deed, to the end that the same might be recorded according to law. [If necessary, add: And she, the said Carohne, being of lawful age, and being examined by me separate and apart from her husband, and the contents of said indenture being fully made known to her, did declare, that she did volimtarily, and of her own free will and accord, seal, and as her act and deed deliver, the same, without any coercion or compulsion of her said husband whatever.] Witness my hand and seal . E. F., Justice, &c. [t. s.]' § 30. Acknowledgment ly. Husband and Wife in Michigan. State of Michigan, ) Wayne County, J Be it remembered, that on this first day of May, &c., before me, a Justice of the Peace in and for the county aforesaid, appeared A B., and Mary his wife, and severally acknowledged that they had severally executed the within instrument^ for the uses and purposes therein mentioned: And the said Mary, on a private examination apart from her husband, acknowledged that she executed the within instrument freely, and without fear or compulsion from any one.* And I further certify, that the persons who made said acknowledg- ment are known to me to be the individuals described in, and who executed the within instrument E. F., Justice, &c. 1 The , acknowledgment may be before a Judge of aSupreme or Circuit Court, Notary Public, BAayorof a city, Commissioner appomted in another State, or a foreign Min- ister or Consul of the United States. » A simple scroll, made with a pen, is suf. ficient to constitute a seaTin Pe&isrlTania. ACKNOWLEDGMENTS, ETC. 21 § 31. The same, in Ohio. State of Ohio, ) Hamilton County, j ^^' Be it remembered, (fee, [as in 30, to the *.] E. R, Justice, defendant, before E. F., Esq., a Justice of the Peace in C. D. ) and for said county, for dollars and cents, damages and costs. . Transcript filed and Judgment docketed, the day of , in the year 1845. Satisfaction of the above mentioned judgment is hereby acknow- ledged. ^_ g_ Subscribed and acknowledged before me, the day of in the year 1845, by A. B., known to me to be the plaintiff above named, [or, made known to me by the oath of E. T., to be, &c. ■ or known to me to be one of the plaintiffs, &c.] ' ' ' E. F., Justice, &c. >2E.8.,t8ded.)844.§129. ACKNOWLEDGMENTS, ETC. 25 § 43. Satisfaction of Judgment in a Gourt of Record} Supreme Court, [or, County Court,] A. B. ^ Of the day of January, one thousand eight against V hundred and forty-seten. C. D. ) Satisfeotion for $ Satisfaction is acknowledged between A. B., plaintiff, and C. D., defendant, for dollars. Judgment docketed the tenth day of January, one thousand eight hundred and forty-five, in the office of the clerk of county. A. B., [or, T. S., Attorney for plaintiff.] Subscribed and acknowledged before me, the day of , 184'7, by A B., known to me \or, made known to me,] to be the plaintiff in the above entitled cause, \or, the Attorney for the plain- tiff in the above entitled cause.] E. F., Justice, &c. § 44. Application for a Subpoena to compel a Subscribing Witness to attend before an officer, to prove the Exe- cution of a Conveyance, To G. H. Esq., County Judge of county : I, A. B., do hereby make application to you to issue a subpoena, requiring E. F., who resides in the town of in said county, to appear and testify before you, touching the execution of a certain conveyance of real estate, made and executed by I. J., to me, the said A. B., \or, if the application is made by the heir, or personal representative of the grantee, name such grantee,^ and to which the said E. F. is a subscribing witness ; the said E. F. having refused, upon my re4ues1^ to appear and testify touching the execution -of the said conveyance ; and the same not having been proved or acknowl- edged, cannot be so proved or acknowledged without the evidence of the said E. F. Dated the first day of July, 1847. A. B. County, ss: A. B. the applicant above named, being duly sworn, says that the facts stated and set forth in the above application are true. Sworn to before me, ) this first day of July, 1847. j" G. H., County Judge. 1 Satisfactioa of Judgments in Courts of I within two years after filing the record, Record, may be acknowledged by the Attorney, 1 2 R. S., (3d ed.) 459 § 36. 26 NEW CLERK'S ASSISTANT. § 45. Form of the Subposna} County; ss: To E. F., of the town of in said county: In the name of the People of the State of New York, you are hereby commanded to appear before me, at my ofl&ce, [or, dwelling house,] in the town of , in said county, on the '^^J .f July, instant, at ten o'clock m the forenoon, then and there to testify, touching the execution of a conveyance of real estate, from I. J. to A. B., to which you are a subscribing witness, as appears by the application of the said A. B. to me made under oath. Hereof fail ' not at your peril. Given under my hand, this first day of July 1847. G. H., County Judge. § 46. Affidavit to obtain Warrant, to be endorsed on the original Subpoena. County, ss: A. B., of , being duly sworn, says, that on the first day of May, instant, at the town of , in said county, he served the within subpoena on E. F., therein named, personally, by then and there showing him the same, and delivering to hun a true copy there- of, and by paying [or, tendering] to him the sum of for his fees for travelling to the place specified in the said subpoena, and for his attendance in pursuance thereof A. B. Sworn to before me, ) this day of , &c. f G. H. County Judge. § 47. Warrant. County, ss: To the Sheriff of said county, greeting : In the name of the People of the State of New York, you are hereBy commanded forthwith to apprehend E. F., in your county, and bring him before me, G. H., Esq., County Judge of said county, . at my office in the town of , in said county, to testify touching the execution of a conveyance of real estate, from I. J. to A. B., to which the said E. F. is a subscribing witness, as is said; the said E. F. having been duly subpoenaed to appear before me, to testify touch- ing the execution of the said conveyance, and having, without reasonable cause, neglected \or, refused] to attend in pursuance 1 This Sutipoena ia to be served by showing the original, under tlie hand of the officer, to the witness, and at the same time delivering 10 him a copy thereof, and paying or tender- ing him the legal fees for one day's attend- ance, which are fifty cents for attendance ; and if the witness resides more than three miles from the place of attendance, travelling fees, at the rale of four cents per mile going and returning. , 2 R. S. (3d ed.; 4f7, 5 54; Laws of 1840, Chap. 385. If the witness refu- ses to appear after the service of the Sub- ptena, without good cause, the officer issuing the same has power to compel his attendance, by warrant directed to the Sheriff of the coun- ty. 2 R. S. (3d ed.) 498, § 66. And if he still persists in refusing to testify, or to an- swer a legal question, without rea.ionable cause, he may be committed to the common jail of the county. Id.. 167. ACKNOWLEDGMENTS, ETC. 27. thereof Given under my hand and seal, the day of- July, 1847. G. H. [l. 8.] § 48. Commitment for Refusal to Testify. By G. H., County Judge of county, to A. P., Sheriff of the said county, greeting : E. F., having this day been brought before me on a warrant by me issued, to compel his attendance to testify [where the witness appears in pursuance of the subpoena, say : having this day appeared before me, in pursuance of a subpoBna by me issued, requiring him to appear and testify] touching the execution of a conveyance of real estate, from I. J. to A. B., to which the said E. F. is a subscrib- ing witness, as is said; and the said E. F., although required by me, having refused to answer upon oath \if the commitment is made on account of the refusal of the witness to answer a particular ques- tion, deemed pertinent by the officer, irisert here: the following question, S04-e. CHAPTER n. AGEEEMENTS AND CONTRACTS. PRACTIC^l REMARKS. 1. In the following cases, every agreement is yoid, unless such agreement, or some note or memorandum thereof expressing the consideration, be in writing, and subscribed by the party to be charged therewith:' 1. Every agreement that, by its terms, is not to be performed within one year from the making liiereof :" 2. Every special promise to answer for the debt, default, or misoai riage of another person;' 3. Every agreement, promise, or undertaking, made upon considera- tion of marriage, except mutual promises to marry.* 2. Every contract for the sale of any goods, chattels, or things, for the price of fifty dollars, or more, is void, unless : 1. A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or 2. Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or 3. Unless the buyer shall, at the time, pay some part of the purchase money.' 3. Every cohtract for the leasing for a longer period than one year, or for the sale of, any lands, or any interest in lands, is void, unless the contract, or some note or memorandum thereof, express- ing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made. An agreement to sell growing trees, with the right to enter and remove, is such an inte- rest in lands as to require a contract in writing.' ■4. In contracts for the sale of land, where the vendee gives notice 1 2 R. S. (3d eil.5 195. § 2. a 10 Wendell, 426 ; 13 Id., 308; 15 Id., 345 ; 3 Hill, 128 i 5 Id., 200 ; 2 Barbour's Ch. Rep. 221. 3 4 Wendell, 657 ; 9 Id., 273; 19 Id., 557; 24 Id., 35, 256; 2 Hill, 663; 3 Id., 128, 584; i Id., 178 ; 5 Id,, 146, 160, 483 ; 2 Denio, 45. 4 10 Wendell, 461. > 2 R. S. (3d ed.) 195, 5 3 ; 3 Wendell, 1 12; 13 Id., 64; 17 Id,, 333; 20 Id., 431 ;• 23 Id.! 270 ; 24 Id., 323 ; 26 Id., 341 ; 5 Hill, III ; 1 Denio, 51 ; 1 Comsiock, 261 ; 2 Id., 258. « 2R. S. (3d8d.) 194 § 8; 2Hill,485, 1 Denin, 550, AGREEMENTS AND CONTRACTS. £fl of a refusal to perform the contract, no tender of a deed by the ven- dor is necessary in order to compel a specific performance.' 5. In everyaction upon a sealed instrument, and where a set-oflf is founded upon a sealed instrument, the seal thereof is only pre- sumptive evidence of a sufficient consideration.* 6. In Pennsylvania, Virginia, Alabama and Georgia, a scroll of ink made with a pen constitutes a seal ; but in New York and other States, wax, or some tenacious substance, is necessary, except it be the seal of a court, public officer, or corporation.' 7. A party signing an instrument purporting to be executed by him, with his initials only, is bound.'' 8. The term ' agree,' does not of itself import a consideration.' 9. Where one party puts an end to an executory contract by a refusal to fulfil, the other party is entitled to an equivalent in dam- ages, for the direct gains and profits which he would have realized from performance, though not for 'the collateral gains or profits, or remote dam^es. And where a person is employed at a salary and discharged before the expiration of the term of service, the damages will be reduced, if he subsequently obtained employment" 10. Where an agreement to lease or sell lands, or a sealed instru- ment, is executed by one acting as an attorney, it must distinctly and clearly appear to be the act and deed of the principal ; it must be executed in his name, and purport to be sealed with his seal.' 11. In all ordinary cases, where the consideration is expressed, there is no diflference between an agreement under seal, and one not under seal, except that the former can be more easily proved, and is therefore to be preferred. 12. Written contracts, capable of a sensible construction, must be determined by the language itself, and not by parol proof; although courts may resort to extrinsic circumstances to discover the intentions of the parties.' 13. Misrepresentations of material facts, though not intended to deceive, wiU entitle a party to rescind a contract' 14. Written contracts may be waived by parol.'" > 2 Comstock, 60. '•2R.S. (3d ed.) 604, 5 W; 11 Wendell, 107 ; IS Id., 529 ; 21 Id., 626 ; 2S Id., 107 ; 6 Hill, 63. >2HiU,227: 3 Id., 493. « 1 Deiu6, 3, 471. > 1 Denio, 226. « 7 Hill, dl ; 1 Denio. 317 ; 2 Id., 609. 7 4 Hill, 351, and authorltiea there cited. < 1 Barbour's S. C. Rep., 464, 63S. • I Barbonr'a S. C. Rep., 471. 10 1 Barbour's S. C. Rep., 114, 326 30 NEW CLERK'S ASSISTANT. FORMS. § 6 2. General form of Agreenwni — Damages fixed. This agreement made the day of , one thousand eight hundred and , by and between A. B., of the town of , m the county of , of the first part, and C. D., of , of the second part, witnesseth: The said party of the second part covenants and agrees, to and with the party of the first part, to [state the subject matter of the agreement^ And the said party of the first part covenants and a^ees to pay unto the said party of the second part, for the same, the sum of dollars, lawful money of the United States, as follows : the sum of dollars, on the day of , 18 , and the sum of dollars on the day of , 18 , with the interest on the amount due, payable at the time of each payment, And for the true and faithful performance of all and every of the covenants and agreements above mentioned, the parties to these presents bind themselves, each unto the other, in the penal sum of dollars, as fixed and settled damages, to be paid by the failing party. In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered in the [ A. B. [l. s.] presence of G; H. j C. D. [l. s.1 § 53. Agreement on the Sale and Purchase of Personal Property. This agreement, by and between A. B., of, &c., and C. D., of, &c., made the day of, &c., witnesseth: That the said C. D., in consideration of the agreement hereinafter contained, to be performed by A. 5., agrees to deliver to the said A. B., at his storehouse, in the village of , three hmidred bushels of wheat, [or, two hundred barrels of pork, as the case may Je,] of good merchantable quality, on or before the day of , 18 . And the said A B., in consideration thereof agree? to pay to the said C. D. the sum of one dollar for each and every bushel of the said wheat, immediately upon the completion of the delivery thereof. In witness, &c., \as' in § 52.] § 64. Agreement for Building a Housv. This agreement for building, made the day of , one thousand eight hundred and , by afld between A. B., of, (kc, of the first part, and C. D., of, &c., of the second part, wit- nesseth: That the said party of the second part; covenants and agrees, to and with the said party of the firat part to make, AGREEMENTS AND CONTRACTS. 31 orect, build and finish, in a good, substantial, and workmanlike manner, on the vacant lot of the said party of the first part, sit- uate on street, in the village of , a dwelling-house, agreeable to the draft, plan, and explanation, hereto annexed, of good substantial materials, [jy the materials are to be furnished by the party of the first part, say: of such materials as the said party of the first part shall find or provide for the same,] by the day of next. And the said party of the first part covenants and agrees to •jay unto the party of the second part, for the same, the sum dollars, lawful money of the United States, as follows: the sum of dollars in thirty days from the date hereof, and the remaining sum of dollars, when the said dweUiug- house shall be completely finished. \^If necessary, add: And also, that he will furnish and procure the necessary materials for the said work, in such reasonable quantities, and at such reasonable time or times, as the said party of the second part shall or may require.] And for the true and faithful performance of all and every of the covenants and agreements above mentioned, the parties to these presents bind themselves, each unto the other, in the penal sum of dollars, as fixed and settled damages, to be paid by the failing party. In witness, (fee, \as in § 52.] § 55. Agreement for Be-building Mills. This agreement, made the day of, (fee, between A. B., of, &c., of the first part, and C. D., of, &c., of the second part, wit- nesseth : That the party of the first part, for the consideration here- inafter mentioned, doth promise and agree, to and with the party of the second part, that he wiU, on or before the day of next, well and sufficiently re-build, or cause to be re-built, the mills of the said party of the second part, situate on the outlet of the lake, in the town of in the county .of , with such materials [If the worJcmen are employed by the party of the second part, insert: and workmen to be employed under him] as the said party of the second part shall find and provide for the same; and that he, the said party of the first part, shall not absent himself, or depart fi'om the work and re-buUding aforesaid, without leave of the said party of the second part; and that if he shall absent himself without leave, he will pay to the said party of the second part, the sum of dollars for every day of such absence, to be stopped and deducted from the wages becoming due to the said party of the first part, as hereinafter provided. And the said party of the second part, in consideration of the 32 NEW CLERK'S ASSISTAITT. premises, doth promise and agree, to and witli the party of the first part, to pay to the said party of the first part, the sum of dollars, [or, for all such time as he shall be employed in the work of re-building aforesaid, weekly, and every week, the sum of dollars, and so in proportion for a less time than a week ; and, in addition thereto, the sum of _ dol- lars,] on the completion of the work and re-building aforesaid. In witness, oi, &c., and C. D., of, (fee, witnesseth: That the said A. B., for the consideration hereinafter specified, covenants and agrees, to and with the said C. D., that he will provide good and proper steel plates, and will engrave thereon, separately, the map of each and every State and Territory in the United States, according to the plans, specifi- cations and drawings, hereunto annexed ; and that he will finish and complete the same in a workmanlike manner, and deliver them to the said C. D., on or before the day of next. In consideration whereof,i the said C. D. covenants and agrees to pay to the said A. B., upon the delivery of each and every of the said engraved plates, the sum of dollars, in fuD payment and satisfaction therefor. In witness, (fee, [as in § 52.] § 60. Agreement to Freight Stoop, or Canal Boat. This agreement, made the day of, &c., between L. S. & Co., factors and commission merchants, of the city of , of the first part, and C. D., owner and master of the sloop [or, canal boat] Empire, of the second part, witnesseth: That the said party of the first part covenant and agree, to and with the said party of the second part, that they will lade and freight the aforesaid sloop \or, canal boat] Empire, for and during the ensuing season of naviga- tion, to commence on the 20th day of instant, when the said sloop [or, canal boat] is to be in readiness to receive her first lading, at the dock of the said party of the first part, [or, at Pier No. ,] in the city of , aforesaid, as well on her upward trips from the said city of to the city of , and the interme- diate ports, as on her return trips from to ; aad that they will pay to. the said party of the second part for carrying the same, on the delivery of each and every cargo in a safe and sound condition, as hereinafter mentioned, at and after the following rates of compensation, viz : FOR UP FREIGHT. Salt, -■ -- - -- - - : - cents per bushel Mei-dhandisei, ' ----..,. do hundred. Household Furniture, - - - : . do do Coal, -•-..- dollars per ton. &c.. (fee. FOR DOWN FREIGHT. Flour, - cents per barreL Pork, - ----- do do Hay, dollars per ton. Wheat and Com, cents per busheJ Butter, ^. do firkin. Staves and Heading ---... do thousand i=^i«<-«^k. ^•^■Cx.c^ :!^«,i--».^*^« Ft!^ . OALCS, J t '^'<^ i^-t ^^-T'U, / / Az-^( ~£^ -Z-z-^ AGREEMENTS AND CONTRACTS. 43 he -will complete the said work on or before the day of next And the said A. B., in consideration of the premises, agrees to furnish and provide good and sufficient materials for the said work, at such time or times as the said C. D. may request ; and to pay the said C. D. for all such work as shall be performed by him or his servants in and about the said new dwelling house, ornamental work excepted, on the completion of the same, at and after the rate of per yard of three feet square, and the sum of dollars for all the ornamental work done or performed in and about the said dwelling house, — ^it being expressly understood and agreed, that no extra charge is to be demanded or allowed, for corners, arches, jams, joints, fire places, or any other kind of work not strictly ornamental, but all the work is to be measured as plain, except the ornamental work to be paid for, as aforesaid, in gross. In witness, &c., [as in § 52.] § 73. Agreement to Sell Land. This agreement, made and entered into the day of, (fee, between A B., of, &e., of the first part, and C. D., of, &c., of the second part, witnesseth : That the said party of the first part, in consideration of the covenants and agreements hereinafter contained, agrees to sell unto the said party of the second part, all that piece or parcel of land bounded and described, &c., [insert description of premisesi\ for the sum of dollars : And the said party of the second part, in consideration of the premises, agrees to pay to the said A. B. the sum of .dollars, in manner following, viz : dollars on the execution of these presents ; dollars, on the day of , next; and the remaining sum of dollars, on the day of , A. D., 1846, with the lawful interest from this date, on each payment, at the time of making the same. And the said party of the first part also agrees, that on receiving the said sum of dollars, at the time and in the manner above mentioned, he will execute and deliver to the said party of the second part, at his own proper cost and expense, a good and sufficient deed, for the conveying and assuring to him, the said party of the second part, the fee simple of the said premises, free from all incumbrance; which deed shall contain a general warranty, and the usual full covenants.* And it is understood that the stipulations aforesaid are to apply to, and to bind, the heirs, executors, adminis- trators and assigns, of the respective parties; and that the party of the second part is to have immediate possession of the premises. In witness, 6 Johnson, 274. a 14 Johnson, 374; 5 Cowen, 170. < 19 Johnson, 113. • 2 Barbour's S. C. Rep., 203. < 3 Hill, 399. T2R. S.(3ded.)218, {28. • 2R. S. (3ded.)219, S29. • 2 R. S. (3d ed.) 219, H 30-32; 13 John. ■on, 270. U2R. S.(3ded.)219,f 33. 48 NEW CLERK'S ASSISTANT. 18. In cases where money has been paid, or agreed to be paid, and Justice of the Peace of the county, or any Mayor, Recorder, or Alderman of the city, in which the apprentice resides, has the power of inquiring into all disputes in relation thereto, and of making such order and direction as the equity of the case may require. If the difficulty cannot be reconciled, the master or the apprentice may be recognized, in such sureties as the officer shall approve, for his ap- pearance at the next Court of Sessions, and such Court, on hearing the parties, may either discharge the apprentice from service, or order the sum of money to be paid, or to be refunded ; or, if not paid, discharge the same, and direct the securities to be canceled; or punish the apprentice by fine, or imprisonment, or both, as for a misdemeanor.' 19. No person can accept from any journeyman or apprentice, any contract or agreement, nor cause him to be bound by oath, or otherwise, that after his term of service shall have expired, such journeyman or apprentice will not set up his trade, profession, or employment, in any particular place, shop, house or cellar; nor can any person exact from any journeyman or apprentice, after his term of sendee shall have expired, any money or other thing, for using and exercising his trade, profession or employment, in any place. Every security given contrary to the foregoing provisions will be void ; any money paid, may be recovered back by the person paying the same, with interest; and every person accepting such agreement. Causing such obligation to be entered into, or exacting money or other thing, as aforesaid, forfeits one hundred dollars to the appren- tice, or journeyman, from whom the same shall have been received." 20. Upon the death of any master, to whom any person may have been bound to service, as clerk, apprentice, or otherwise, by the County Superintendents of the Poor, or by the Overseers of the Poor, the executors or administrators of such master- may, with the consent of the person bound to service, signified in writing, and acknowledged before a Justice of the Peace, assign the contract of such service to any other person ; which assignment will vest in such assignee all the rights of the original master, and render him subject to all his obligations. If the person so bound to service refuses to give such consent, such assignment may be made under the sanction of an order of the Court of Sessions of the county, after fourteen days' notice of an application to that effect, served on the appren- tice, his parent, or guardian, if there be any in the county; and when so made, such assignment will be as valid and effectual as if the consent had been given in the manner aforesaid.' 21. The above provisions apply as well to mistresses, female guardians, apprentices and wards, respectively, as to masters, mde guardians, apprentices and wards.* 1 a R. S. (3d eil.) 'il9, 220, 5§ 34-38; Laws 1 3 2 R. S. (3d ed.) 220, S§ 41, 42. 01 1347, chap, 280, an. v. * 2 R. S. (3d ed.) 221, § 43. J 2 R. S. (3d ed.) 220. 51 39. 40. APPRENTICES AlfD SERVANTS. 49 FORMS. § 76. Apprentice's • Indenture. This indenture witnessetli: That C. B., of the town of , m the county of , and State of , now aged fourteen years, by and«with the consent of A. B., his father [or, mother, his father being dead, or, being legally incapacitated, or, having abandoned or neglected to provide for his family] endorsed hereupon, hath volunta- rily, and of- his own free will and accord, put and bound himself apprentice to E. F., of the town of, &o., to learn the art, trade, and mystery of a hatter ; and as an apprentice to serve from this date, for, and during, and until the full end and term of, five years next ensuing, [or, until the said C. B. shall have attained the age of twenty-one years, which will be on the day of , m the year 18 ,] during all which time the said apprentice shall serve his master faithfully, honestly, and industriously; his secrets keep, and lawful commands every where readily obey ; at all times protect and preserve the goods and property of his said master, and not suffer or allow any to be. injured or wasted. He shall not buy, sell, or traffic, with his own goods, or the goods of others, nor be absent from his said master's service, day or night, without leave ; but in all things behave himself as a faithful apprentice ought to do, during the said term. And the said master shall clothe and provide for the said apprentice in sickness and in health, and supply him with suitable food and clothing; and shall use and employ the utmost of his endea- vors to teach, or cause him, the said apprentice, to be taught or instructed, in the art, trade, or mystery of a hatter ; and also cause the said apprentice, within such term, to be instructed to read and write, and in the general rules of arithmetic ; and at the end of the said term, give the said apprentice a new bible, [^necessary, insert here: And the said E. F. acknowledges that he has received, with the said C. B., from A. B., his father, [or, mother,] the sum of dollars, as a compensation for his instruction, as above mentioned ; or: And the said E. F. further agrees to pay to the said C. B. the following sums of money, viz : for the first year of "his service dollars ; for the second year of his service dollars ; and for every subsequent year, until the expiration of his term of service, dollars ; which said pajTnents are to be made on the first day of January in each year.] And for the true performance of all and singular the covenants and agreements aforesaid, the said parties bind themselves, each unto the other, firmly by these presents. In witness whereof, the parties aforesaid have hereunto set their 50 NEW CLERK'S ASSISTANT. hands and seals, the day of , in the year one thousaiid eight hundred and Signed, sealed, and delivered, ) C. B. [l. s.] in presence of >• ■" E. F. [l. s.] G. H. ) § 77, Consent of Father or Mother. • I do hereby consent to, and approve o^ the binding of my son, C. B., as in the above [or, ■within] indenture mentioned. Dated the day of , in the year 18 . A.B. § 78. Justice's Certificate, where Mother gives consent. I, G. H., a Justice of the Peace of the town of , in the county of , do certify, that A. B., the fether of the infant oamed in the within indenture, is dead, [or, is not in legal capacity to give his consent thereto ; or, has abandoned and neglected to pro vide for his family.] Dated the day of , 18 . G. H., Justice of the Peace. § 79. Consent of Guardian. I, S. T., the guardian, duly appointed, of C. B., in the within indenture named, do certify, that the father and mother of the said C. B. are dead, [or, that the father of the said C. B. is dead, and that the mother of the said C. B. refuses her consent to the said indenture of apprenticeship ; or, is not in legal capacity to give her consent to the said indenture of apprenticeship;] and that I do hereby consent, as his guardian, that he, the said C. B., may bind himself in and by the said indenture. Dated the day of , 18 . S. T., Guardian of the said C. B. § 80. Certificate of Consent of the Overseers of the Poor, two Jus- tices of the Peace of the town, or County Judge of the county in which the Infant resides. We, the undersigned. Overseers of the Poor of the town of , or, two Justices of the Peace of the town of ; or, I, the undersigned. County Judge of county,] where the within named C. B. resides, do certify, that the said C. B. has no parent living, [or, no parent in legal oajiacity to ^ve consent to the within indenture; or, no father living, and his mother is not in legal capacity to give consent to the within indenture,] and that he h.s no guardian, and that wf', the said Overseers, [or, Justices; ^--c-t-^#— -^«^— ^*-y^ i^jCa-^otl.^^ <:^ji^<^^«-«--^-' <^.».tj^ tffc ■ ■ * -d ^^^^•-^/^ c^.-^'L.a^^ £^/l2..S^ <2-«!^ll-^-6/«_^I^<2»..,L,^^^^ e^ CX^Z:^ZZ^ ^T-Z-*^— »X> ^ »»,,«r--7 ■ — e/»a C^CS.'^>-y!CZ^^»-y ^t.J-.^ -«^^ ^.««,-,«..<«.»^, o^ -7 c^-ci^A.^ 9^^^ ^ AD. /r APPRENTICES AND SERVANTS. 51 or, I, the said Judge,] do consent that the said C. B. may bind himself in and bv the said mdenture. G. H. M. P. § 81. Agreement of the Father, where he intends to hind himself to answer in Damages. This indentm'e, made the day of , in the year one thousand eight himdred and , between A. B., o^ &c., and E. R, of, &c, witnesseth : That the said A. B., in consideration of the covenant and agreement hereinafter mentioned, doth, by these presents, put and bind his son C. B., to the said E. F., to learn the art, trade, and mystery, of a hatter, and as an apprentice to serve from this date, for, and during, and until the full end and term of, five years next ensuing, to the best of his power and skill, faithfully and honestly, in all lawful business and matters that the said E. F. may direct; and the said A. B. doth hereby covenant and agree -with the said E. F., that the said C. B. shall in all things well and truly serve the said E. F., during the said term, according to the conditions of the indenture this day executed by the said C. B. and E. F., with my written consent thereupon endorsed, and now on file in the office of the Clerk of the town of ; and the said E. F. doth covenant and agree with the said A. B., to pay to the said A. B. the stun of dollars, on the first day of , in each and every year during the term aforesaid. In witness whereof the said parties to these presents have here- unto set their hands and seals, the day and year first above written. Sealed and delivered \ A B. [l. s.] in presence of > E. F. [l. s.] G. H. ) § 82. The Same, Endorsed- upon the Indeniwre.' In consideration of the covenants and agreements to be performed by E. F., to and with my son C. B., specified and contained in the within indenture, I do hereby bind myself to the said E. F., for the true and Mthful performance and observance, by the said C. B., of the matters and things by him to be performed and observed in and by the said indenture ; and I do hereby covenant to and with the said E. F., that the said C. B. shall, in all things, well and truly perform and observe the same. In witness whereof I have hereunto put my hand and seal, the day 0^ &C. In presence of ) A B. [l. b.] G.H. f 52 IfEW CLERK'S ASSISTANT. § 83. Servant's Indenture, This indenture witnesseth : That M. B., of the town of, &c., ntw aged thirteen years, by and with the consent of A. B., of the town aforesaid, her father, [or, mother, &c., m in § 76,] has voluntarily and of her own accord, put and bound herself to E. F., as a domes- tic servant, to serve from the date hereof, for and until the full end and term of five years next ensuing; [or, until she shall have attained the age of eighteen years, which will be on the day of , 18 ;] during all which time the said servant shall serve her master faithfully, honestly wad. industriously; all lawful com- mands every where readily obey ; and protect and preserve the goods and property of her said master,: and not suffer or allow any to be injured or wasted: she shall not be absent from service without leaye ; and in all things, and at all times; shall behave as a faithful servant ought to do. And the said E. F. shall and will furnish and provide the said servant, during the continuance of the said term, with suitable and sufficient food and clothing; and cause her, within the said term, to be instructed to read and write ; and, at the expi- ration of the said term, shall give her a new bible, and the sum of dollars. And for the true performance, of all and singu- lar the covenants and agreements aforesaid, the said parties bind themselves, each unto the other, firmly by these presents. • In witness, &e., [as in 8 76, and consent of father or mother, as m§77.] § 84. Contract to Bind to Service a Minor, coming from a Foreign Coumtry beyond Sea, and Acknowledgment.^ This indenture, made the day of, &c., between C. B., an infant under the age of twenty-one years, to wit: of the age of nine- teen years, on the day of last, coming from the city of Dubhn, in Ireland, a foreign country beyond sea; and E. F., of the city of New York, witnesseth : That the said C. B., in pursu- ance of the statute in such case made, and in consideration of the covenants hereinafter contained, binds himself to serve the said E. F. from the day of the date hereof, until the full end and term of two years; [or, until the said C. B. shaU be twenty-one years of age, which will be on the _ day of , in the year ;] during which term the sai'd C. B. shall well and faithfully serve the said E. R, and his assigns, in all such lawful business as he shall be put to by the said E. F., or his assigns, to the utmost of the power and ability of the said C. B. ; and, at all times, behave him- self honestly and obediently to the said E. F., and his assigns. 1 The execution of the contract ebould be acknowledged berore a Major, Rocordor, Alderman, or Justice of the Peace. APPRENTICES AND SERVANTS. 53 And the said E. F. covenants on his part, and agrees to and with the sEud 0. B., that he, the ssdd E. F., will find and allow to the said C. B. suitable and sufficient food and clothing, and all other neces- saries, during the said term. In witness whereof, the parties have hereto set their hands and seals, the day and year above written. C. .B. [l. s.] E. F, [l. s.] State of New York, ) County, ) On the day of , in the year , pe/sonally came before me C. B., to me known to be the person who executed the within contract, and, on a private examination before me, acknow- ledged that the said contract was made and executed by him freely, for the purposes therein mentioned. G. H., Justice of the Peace. § 85. Assignment of foregoing Indenture} Know all men by these presents, that !> the within named E. F., for and in consideration of the sum of dollars, have assigned and set over, and by these presents do assign and set over, the within indenture, and the servant \dr, apprentice] therein named, unto C. D., of , his executors, administrators, and assigns, for the residue of the term within mentioned ; he and they performing all and singular the covenants therein contained, on my part to be kept and p^formed, and indemnifying me from the same. In witness, (fee, \as in § 82.] In presence of ) G. H. \ E. F. [l. 6.1 KM. ) § 86. Approval of the Assignment, hy a Mayor, Recorder, Alder- man, or Justice of the Peace. I hereby approve of the foregoing assignment of the within inden- ture. W. V. B., Mayor, of the city of New York. § 87. Certificate of Consent to the Binding of the Child of an Indian Womun. I, G. H., a Justice of the Peace of the town of , in sad county, do certify, that R. M., the male child of S. M., an Indian (voman, in my presence and with my consent, was bound as an X Two witnesses are required to the assignment. 54 HEW CLEEK'S ASSISTANT. apprentice to "E. F., of , by' indenture, dated this day, and duly executed in the town of , aforesaid; and that I subscribed ■ my name as a witness thereto. Dated the day of , 18 . G. H., Justice of the Peace. § 88. Qomplaint hy Master against Apprentice for Refusing to Serve. To G. H., a Justice of the Peace of the County of I, E. F., of the town of , in said county, hatter, hereby make complaint to you, that C. B., an apprentice lawfully bound to serve me, the said E. F., whose term of service is still unexpired, and with whom I have not xeceived, nor am I entitied to receive, any sum of money as a compensation for his instruction, refuses to serve me, as bylaw and the t^fms of his indenture of apprenticeship heis required. Dated the day of ,18 . Counly, ss: . E. F., the person named in the foregoing complaint, being duly sworn, deposes and says, that the facts and circumstances stated and set forth in the said complaint are true. Sworn to before me, this ) " -ei -u day of ,18 . f ^■*' G. H., Justice of the Peace. § 89. Warrant on the foregoing Com/plaint. County, ss : To any Constable of said County, greeting: Complaint has been made to me, G. H., one of the Justices of the Peace of said county, upon the bath of E. F., of , in said county, hatter, that C. B., an apprentice lawfully boimd to serve the said E. F., whose term of service is still unexpired, and with whom the said E. F. hath not recaved, nor is entitied to receive, any siun of money as a compensation for his instruction, refuses to serve the said E. F., as by law and the terms of his indenture of apprenticeship he is required : Now, therefore, you are hereby commanded forthwith to apprehend the said C. B., and bring him before me, at my ofiBce in , to answer to the said E. F. and be dealt with according to law. Given under my hand, this day of ,18 . G. H., Justice of the Peace. APPRENTICES AND SERVANTS. 55 § 90. Gomrrdtment of an Apprentice Be/using to Serve. County, ss : To any Constable of said county, greeting: Complaint on oath was made to me, the undersigned G. H., a Justice of the Peace of said county, by E. F., of , in said county, hatter, that C. B., an apprentice lawfully bound to serve the said E. F.,' whose term of service was still unexpired, and with whom the said E. F. had not received, nor was entitled to receive, any sum of money as a compensation for his instruction, refused to serve the said E. F., as by law and the terms of his indenture of apprenticeship he was required: And the said C. B., by virtue of my warrant there- upon issued, has been brought before me to be dealt with according to law; and whereas, after due proof before me of the facts as above stated and set forth, the said C. B. still persists in such refusal to serve the said E. F. : Now, therefore, you are hereby commanded, in tlie name of the People of the State of New York, to take and convey the said C. B. to the common jail of said county, and deliver liim to the keeper thereof who is commanded to receive the said C. B. into the said common jail, there to remain until he shall consent to serve the said E. F. according to law. Given, E. F. had received the sum of dollars, [or, with whom the said E. F. was entitled to receive the sum of dollars, on the day of ,18 ,] as a com- pensation forhis instruction, that the said C. 3- refused to serve the said E. F., as by law and the terms of his indenture of apprentice- ship he was required, the said parties were summoned and appeared before the said Justice ; and after due examination into the premises, the difficulty between the said parties could not be compounded or reconciled : Whereupon the said C. B. was recognized personally to appear at this Court of Sessions of the said county, to answer to the complaint aforesaid, &c. : And now, the said parties having been heard by their respective counsel, and the said C. B. being found guilty of the premises, it is ordered and decreed that the said C. B. .e fined in the sum of dollars, [or, that the said C. B. be C3 NEW CLERK'S ASSISTAIIT. imprisoned in the common jail of said county of , there to remain in solitary confinement until he shall consent to serve the said E. F.; or, if necessary, include both Jme and imprisonment, or follow § 101, according to the order of the Cfewr/.]' 1 'Where the master complains against the apprentice, for any misdemeanor, or ill beh^ vior, forms § 102, etc., will require but little alteration to meet the caae. CHAPTER IV. AUBITEATION AI^D AWAED. PRACTICAL EEMARKS. 1. All persons, except infants and married women, and persons of unsovmd mind, may, by an instrument in writing, submit to the decision of one or more arbitrators, any controversy existing between them which might be the subject of an action at law, or of a suit in equity ; any claim to an interest for a term of years, or for one year, or less, in real estate ; or any controversy respecting the partition of lands between joint tenants, or tenants in common, or concerning the boundaries of lands, or the admeasurement of dower. No claim to real estate, in fee or for life, can be thus submitted. The parties to any Such admission may agree, that a judgment of any court of law and of record, to be designated in sueh instrument in writing, as aforesaid, shall be rendered upon the award made in pursuance thereof 2. The arbitrators must appoint a place and time for the hearing, otherwise their award will be void; and they have the power to adjomTi from time to time, or, for good cause shown, to postpone the hearing to any time not extending beyond the day fixed for render- ing their award. Before proceeding to take testimony, they must take the prescribed oath. Such oath may be administered by any Judge, of any Court of Record, or by any Justice of the Peace, or by any Commisaoner of Deeds. The attendance of witnfesses may be compelled by subpoena, to be issued by any Justice of the Peace. The oaths to witnesses and other persons examined before arbitra- tors, may be administered by such arbitrators, or any, or either of them.' 3. AU the arbitrators must meet together, and hear all the proo& and allegations of the parties ; but an award by a majority mi be I 2 R.S (3d ed.) 623, H 1, 2 ; \ nill, 44. | cha[.. 187; 1 HilL 489; 3 Barbour'a S. O < 2 R. S. (3d ed.) 629, H 3-S ; Laws of 1843, | Rep., 275. 64 NEW CLEEK'S ASSISTANT. valid, unless 'the concurrence of all be expressly required in the submission. The award must be in writing, subscribed by the arbi- trators, and attested by a subscribing witness.' 4. An award made without notice to the parties of the hearing, and without their being present, or having an opportunity to be heard, is absolutely void." 5. Upoii proving the submission and the award, by the aflSdavit of the subscribing witness, or by the affidavit of the arbitrators, within one year after making such award, the court designated in such submission shall, by rule, 'in open court, confirm the award made in pursuance thereof, unless the same be vacated or modified, or a decision thereon be postponed," 6. Any party complaining of such award, may move the court de- signated in the submission, to vacate the same, upon the ground that it was produced by fraud or corruption ; or that the arbitrators were guilty of misconduct in refusing to. postpone the hearing, or reject- ing proper testimony ; or that they exceeded their powers.* 7. Such award may be modified or corrected, in like manner, where there is an evident miscalculation of- figures ; where the arbi- trators have decided some matter not submitted to them; or where the award is imperfect. All applications to vacate, or modify an award, must be made at the next term of the court after the publication of such award.' 8. Judgments entered up, in pursuance of any award and confirm- ation thereof, may be set aside, in the same manner as judgments in other cases, and are subject to the same provisions of law." 9. Whenever a party revokes the submission to arbitration before the publication of the award, he wUl be liable to the adverse party for all the costs, expenses, and damages, the latter may have incur- red. If the submission so revoked be contained in the condition of the bond, suit may be commenced thereon by the obligee (the revo- ci^tion being assigned as the breach thereof,) who will be entitled to recover the costs, expenses, and damages he may have incurred.' 10. Where a judgment, entered in pursuance of any award, as aforesaid, requires a party to perform some act, other than the pay- ment of money, and he refuses to do the same, he may be proceeded against, as in other cases of contempt.' 11. A submission to arbitrators, of the subject matter of a pend- ing suit, and an award thereon, puts an end to the suit ; and the plaintiff's remedy is on the award.' 1 2 R. S. (3d ed.) 629. 5S 7, 8 ; 2 Hill, 75 ; i Barbour's S. O. Rep., 250. a 3 Barbour's S. C. Rep., 275. ' 2 R. S. (3(1 ed.) 629, 5 9 ; 6 Wendell, 102 ; 6 Id., 020 ; 4 Hill, SSI ; Id., 303. « 2 R. S. (3d ed.) 629, S 10: 17 Johnson, 405; 10 Wendell. 589 ; 17 til., 412; 1 IIlll, 319,4d9. • 2 R S. rtd ed.) B29, 630, §S U, 12 ; 6 Wen- dell, 520 ; 10 M., 589 ; 17 Id , 412 ; 1 Paige, ■ «'2ll. S. (3d ed.) 630, 55 13-17. ' 2 R. S. (3d ed.) 631, 55 23, 24 ; 16 John- son. 205; BPalge, S78. « 2 R. S. (3d ed.) 631, 5 18. • 12 Wendell, 503 ; 1 Hill, 69 ; 2 Id., 387 ; S M., 610; 3 Barbour's S. C. Rep., 275. ARBITRATION AND AWARD. 65 12. If the arbitration bond requires the award to be in ■writing, ready for delivery to the parties on or before a ^ven day, the award is a nullity, unless a counterpart of the award delivered to the pre- vailing party is prepared for the other party.' 13. If an agent enter into a submission in his own name, or if a person on behalf of himself and others, but without authority, enter into such submission, he will be personally bound to perform the award.' 14. A submission to arbitrators is valid, though by parol ; but the award made in pursuance thereof cannot be enforced in the manner prescribed by the statute." 15. Where the submission to arbitrators contains an express con- dition, the award must comply with it strictly.* 16. It is immaterial what the form of a submission may be, pro- vided the intention of the parties appears.' 17. The award must be confined to the submission." 18. Where a submissionis verbal, and there is no agreement that the award shall be in writing, it may be by parol.' 19. Where the submission is made to two arbitrators, with the power of choosing an umpire in case of disagreement, the award of the umpire, when made, is final and conclusive.' 20. The power of arbitrators is confined to the parties submitted, and if they exceed that limit, their award will, in general, be void." 21. Oral testimony may be given, either in law or equity, to invalidate an award, even though the submission and award be in writing, and under seal." 22. An agreement to pay a certain sum, in case of not abiding by an award, is a penalty, and the opposite party can only recover the sum awarded.^' ' 23. No provision is made in the statute for the compensation of arbitrators, but suit may be maintained by them separately, for a reasonable sum in payment for their services." 24. Arbitrators are not obliged to deliver their award till their fees are paid." 25. By the amended constitution of New York, tribunals of con- ciliation are authorized to be established. No definite action has yet been had in the Legislature on the subject ; but should such tribunals be established, they will be found to differ very slightly in character from our present courts of arbitration, and the forms used in the one can readily be adapted to the other." » 1 Hill, 321. 2 5 Hill, 419. s 2 Hill, 471. 4 3 Bavbaui's S. C. Rop„ 56. > 1 Barbour's S. C. Rep., .584. • 1 Barbour's S.'C. Rep., 326. ' 2 Barbour's Ch. Rep.,430. > 17 Johnson, 4• G. H. ) > Each party should hare a bond. The obligor in one mil be the obligee m the other. 68 NEW CLERK'S ASSISTANT. § 111. Condition of Bond on a Special Suhmission. The condition of the above obligation is such : That if the above bounden A. B. shall well and truly submit to the decision of E. ¥., L. M., and S. T., named, selected, and chosen arbitrators, as well by and on the part and behalf of the said A. B., as of the said C. D., between whom a controversy exists, to hear all the proofs and allega- tions of the parties, of and concerning a certain exchange of horses, made by and between them, at the town of , aforesaid, on the day of, &c., and all matters relating thereto; so that the award of the said arbitrators be made, &c., [as in § 110.] § 112. Notice to Arbitrators of their Appointment. To E. R, L. M., and S. T., Esquires: You are hereby notified, that you have been nominated and chosen arbitrators, as well on the part and behalf of the.undersigned A. B., of, &c., as of C. D., of; &c., also undersigned, to arbitrate, award, S Johnson, 335 ; 6 Cowen, 287. | ASSIGNMENTS. 73 not provided for; aaid proof that there would be no surplus will not make it good.' 'J. General assignments by an insolvent debtor, giving preferences to certain creditors, are upheld reluctantly by our courts, and they must be executed in perfect good faith, and an entire and absolute surrender of the debtor's property must be made for the payment of his debts." 8. An assignment by an insolvent idebtor, in trust to pay preferred creditors, should not authorize the trustees named therein to sell property on credit.' 9. An assignment for the benefit of creditors, authorizing the assi^ee, in his discretion, to change the order of preference of the creditors, is fraudulent and void.* 10. Assignments of the property or effects of a limited partner- ship, made by such partnership when insolvent, or in contemplation of insolvency, and giving a preference to creditors, are void.' 11. Where an assignment is made for the benefit of creditors, it must be accompanied by immediate delivery, either actual or imphed." 12. Voluntary conveyances in trust for creditors are regarded with jealousy, but the question of fraudulent intent is always one of fact, and not one of law.' 13. No higher rates of compensation should be given to trustees or assignees, by an assignment, than "those allowed to executors, administrators, and guardians, for similar services.* 14. An action brought by an assignee of a chose in action, will be without prejudice to any set-off, or other defence, existiag at the time of, or before notice of the assignment.' 15. Every assignment of any interest in land must be in writing." Assignments of mortgages should be acknowledged and recorded, in the same manner as direct conveyances of real estate. 16. An assignment of a mortgage by an individual, or by a corpo- ration, without a seal, is a valid transfer of the mortgage debt, though not of the mortgage itself" 17. An assignment of a policy of insurance should always receive the assent of the insurers ; to be signified in writing, if a company, by the President or Secretary. 1 8. The assignee of an insurance policy cannot recover for any loss in his own name, unless there be an express promise on the part of the company to be responsible; even though the assignment be made with their consent" I 4 Barbour'9 S. C. Rep., 466 ; 2 Comstock, 365. a 6 Hill, 438 ; 10 Paige, 229. ' 9 Paige. 405 ; 2 Comstock, 365. * 4 Harbours S. C. Rep., 546. » 2 R, S. (3il ed.) 51, 520. • 1 Barbour's S. C. Rep., 210. 7 2 R. S. (3d ed.) 198, 5 4:8 Cowen, 406 j 4 Wrendell, 303; 7 Id., 438; 8 Id., 375; 11 Id., 251 i 12 Id., 297 : 15 Wa 212, 628 ; 16 Id., D ■ 520; 17 Id., 64, 492: 19 Id., 183, 614, 524; 20 Id., 118, 607; 23 Id., 663; S» id., 117; 25 Id., 396, B15; 26 Id., 611 ; 1 Hill, 347, 433 467 ; 4 Id., 271 ; 6 Id., 433, 438 ; 3 Paige, 557 2 Barbour's S. C. Rep., 9. e 2 Comstock, 365. » Laws of 1849, part II., title iii., S 112. 10 2 R. S. (3d. ed.) 47, § 44 ; Id., 194, 5 6 u 1 Denio, 520. " 3 Hill, 88. '5'4 NEW CLERK'S ASSISTANT. FORMS. § 124. Assignment to be Endorsed on an Instrument. lu consideration of tlie sum of dollars, to me in hand paid, by C. D., of, (fee, the receipt whereof is hereby acknowledged, I do hereby transfer, assign and set over, to the said C. D., his heirs and assigns, all my right, title and i'nterest, in and to the within instru- ment ; and I do hereby constitute the said C. D., my attorney, in my name, or otherwise, but at his own cost and charge, to take all legal measures which may be proper or necessary, for the complete recovery and enjoyment of the assigned premises. Witness my hand and seal, this day of , 18 . In presence of ) A. B. [l. s.] G. H. f § 1 25. Assignment by a Firm, for the Benefit of Creditors. This i"n<^onfYtj^ma»^ tha Jay of .in th(^ jear between A. B^A pd 0. JX,-caEartae rs, un3er tii"6 name, style, QK&ifi'/^ <^"Br2fe-DjOT the firstMJlJ^i4JK3i"^of, cfec.,"^ the "second part : id/Sop artnershiy is^ S^stly indebted in sundry con- mOEe siderable sums of mOBey, and has become unable to pay and dis- charge the same with punctuality, or in full ; and the said partifc^ of the first paKti&rejnow desirous of making a fair »id equitableTiisdribu- tion of:lEeii)^operty and efiects among lihgig cre3itors : Now, there- fore, this mdenture witnesseth, that the said partiei^of the first par^ in consideration of the premises, and of the sum of^ne dollar to(2ie^ in hand paid, by the party of the second part, the receipt whereof is hereby acknowledged, ha^e^granted, bargained and sold, released, assigned, transferred and set over, and by these presents doi^ant, bargain and sell, release, assign, transfer and set over, unto the said party of the second part, and to his heirs and assigns, forever, all and singular, the lands, tenements and hereditamente, situate, lying and being within the State of New York, and all the goods, chat- tels, merchandise, bills, bonds, notes, book accounts, claittis, demands, choses in action, judgments, evidences of debt and property, of every . game andnature whatsoever, of the said parti^^^_ the_first_pajy more pai-ticiilH'ly-«numerated""and deicribedTiriflie schedule hereto >«Ujnexedj_maEksd^^Sdiedule_A^ to have and to hol^ the same, and every part and parcel tEereo^with the appurtenances, to the said party of the second part, his heirs, executors, administrators and In trust, nevertheless, and to and for the following uses, intents and purposes ; that is to say : that the said party of the second part shall take possession of all and singular the lands, tenements and ASSIGNMENTS. 75 hereditaments, property and effects, hereby assigned, and sell and dispose of the same, upon such terms and conditions as in his judg- ment may appear best, but not upon credit, and convert the same into money; and shall also collect all and singular the said debts, dues, bUls, bonds, notes, accounts, claims, demands and choses in action, or so much thereof as may prove collectible ; and thereupon execute, acknowledge, and deliver, all necessary conveyances and instruments, for the purposes aforesaid : And by and with the pro- ceeds of such sales and collections, the said pai ty of the second part shall first pay and disburse all the just and reasonable expenses, costs, charges and commissions, of executing and carrying into effect this assignment, and all rents, taxes and assessments, due or to-be- come due, on the lands, tenements and hereditaments, aforesaid, until the same shall be sold and disposed of; and by and with the residue, or net proceeds and avails, of such sales and collections, the said "party of the second part shall, (f-Lt ^ ;-^ First, Pay and discharge, in fuU, the ^veral and respec1ive)iebts, bonds, notes and sums of money, due. or"lO gl'OW due. ft'om"me said partiws of the first part, or for which ^i§tiile liable, to(t he SM ^^ar^ -tiTthft secoiid' part, Hn"d'-the--seveKd~T)thtsr--personsT3ia firms design nat ed in th e sc hedule h ereto annexed, marked " Schedule B^ 'TSgether winrafflhterest moneys due, or to grow" due thereon; and, if said net proceeds and avails shall not be sufficient to pay and dis- charge the same, in full, then such net proceeds and avails shall be distributed pro rata, share and share alik e, amon g the said se veral perso ns and firmj /loamegr' in said Schedule Jb.,~according to the ' fam ounTbt tlieu' re spsfftilvfi cl"'"'^; gjljj ■ *■ E. F. ) A. B. [l. S.J § 127. Assignment of Bond. Knovf all men by these presents : That I, A. B., of, &c., of the first part, for and in consideration of the sum of dollars, lawful money of the United States of America, to me in hand paid by C. D., ot (fee, of the second part, the receipt whereof is hereby acknowledged, have bargained, sold, and assigned, and by these presents do bargain, sell, and assign, unto the said party of the second part, his executors, administrators, and assigns, a certain written bond or obligation, and the condition thereof, bearing date the day of , one thousand eight hundred and , executed by E. P. to the said A. B., and all sura and sums of money, due, or to grow due thereon : And I do hereby covenant with the said party of the second part, that there is now due on the said bond or obligation, according to the condition thereof, for principal and interest, the sum of dollars ; and I hereby authorize the said party of the second part, in my name, to ask, demand, sue for, recover, and receive, the money due, and that may grow due thereon, as afore- said. In witness, &c., [as in § 126.] § 128. Assignment of Jvdgment. This indenture, made the day of , one thousand eight hundred and , between A. B., o^ &c., of the first part, and C. D., of, &c., of the second part : Whereas the said party of the first part, on the day of July, one thousand eight hundred and , recovered by judgment, in the Supreme Court of the State of New York, against E. F., of, (fee, the sum of dollars and cente, damages and costs, [or, dollars of debt, and dollars for damages and costs :] Now, there- fore, this indenture witnesseth, that the said party of the first part, in consideration of dollars,' to him duly paid, hath sold, and by these presents doth assign, transfer, and set over, unto the said party of the second part, and his assigns, the said judgment, and all sum and sums of money that may be had, or obtained, by means thereof or any proceedings to be had thereupon. And the said party of the first part doth hereby constitute and appoint the said party of the second part, and his assigns, his true and lawful attorney, and attor- 78 NEW CLERK'S ASSISTANT. neys, irrevocable, with power of substitution and revocation, for the use, and at the proper cost and charge of the said party of the second part, to ask, demand, and receive, and to sue out executions, and take all lawful ways for the recovery of the money due, or to become due, on the said judgment; and on payment, to acknowledge satisfaction, or discharge the same ; hereby ratifying and confirming all that bis said attorney or attorneys shall lawfully do, or cause to be done, in the premises. And the said party of the first part doth covenant, that there is now due on the said judgment the sum of dollars, and that he will not collect or receive the same, or any part thereof, nor release or discharge the said judgment, but will own and allow all lawful proceedings therein ; the said party of the second part saving the said party of the first part harmless, of and from any costs and charges in the premises. In witness whereof, the party of the first part hath hereimto set his hand and seal, the day and year first above written. Sealed and delivered in the ) presence of >• G. H. ) A. B. [l. s.] § 129. The Same, in a Shorter Form. Supreme Court: A. B. ") Judgment for $1000 on a bond, dated first May, against > 1845. Conditioned for the payment of SoOO and E. F. ) interest — costs taxed at $21,50, Judgment docketed August 2, 1845, in County Clerk's Office. In consideration of dollars, to me paid, I do hereby sell, assign, and transfer, to C. D., the judgment above mentioned, for his use and benefit; hereby authorizing him to collect and enforce pay- ment thereof, in my name, or otherwise, but at his own costs and charges : and covenanting that the sum of dollars, with the interest from the day of , in the year besides the costs, is due thereon. In witness, &c., \as in § 126.] § 130. The Same, in Another Form. County Court: A B. 1 Judgment docketed 31st July, 1847, for $210, against > 27, damages and costs. E. F. ) For value received, I do hereby assign, transfer and set over, the above mentioned judgment, to C. D., for his use, and at his risk, costs and charges, in all respects. Dated the day of , 18 . A B. ASSIGNMENTS. 79 § 131. Assignment of Bond and Mortgage: Know all men by these presents : That I, A. B., of, &c., of the first part, in consideration of the sum of dollars, lawful money of the United States, to me in hand paid by C. D., of, &c., of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer and set over, unto the said party of the second part, a certain indenture of mort- gage, bearing date the day of , one thousand eight hundred and , made and executed by E. F., and M. his wife, of, &c., to the said party of the first part, together with the bond or obUgation therein described, and the money due or to grow due thereon, with the interest: to have and to hold the same, unto the said party of the second part, his executors, administrators, and asagns, for their use and benefit; .subject only to the proviso in the said indenture of mortgage mentioned : And I do hereby make, con- stitute and appoint, the said party of the second part, my true and lawful attorney, irrevocable, in my name, or otherwise, but at his own proper costs and charges, to have, use, and take, all lawful ways and means, for the recovery of the said money and interest ; and, in case of payment, to discharge the same, as fully as I might, or could do, if these presents were not made : And I do hereby covenant, to and with the said party of the second part, that there is now due and owing upon the said bond and mortgage, the sum of dollars, with interest from the day of , 18 ; and that I have good right to sell, transfer and assign, the same, as aforesaid. In witness, &c., \as in § 126.] § 132. The Same, in a Shorter Form. E. F., and M.. his wife, 1 Mortgage dated the _ day o^ vs. > nership property and eflfects, to the best advantage; that he will use hK best diligence and endeavors to collect all debts and sums of money due and owing to the said firm ; and that he will truly and fMthfully apply the proceeds of said sale, and the moneys collected, to the payment, discharge and satisfection, of all debts and demands against the said firm, as far as the same will go; and after discharging all such debts, will pay over to the said A. B., or his representatives, one moiely of any surplus that may remain; and further, that he will keep a full and accurate account of all moneys received by him, for goods sold, or debts collected, as well as of all moneys paid out, and will render a just, true, and full account thereof to the said A. B., or his representatives. And the said A B., for himself, his heirs, executors and adminis- trators, covenants to and with the said C. D., his heirs, &c., that if it shall be found that the debts due and owing from the said firm exceed the amount of moneys received from the sale of the said partnership property and efiects, and the debts collected, he will pay unto the said C. D., or his assigns, one moiety of any balance that may then be found due and owing from the said firm. In witness, (fee, [os j» § 134.] § 141. AsdgnmerU by a Sheriff, to his Successor in Office. This indenture, made this day oi, &c., between G. H. C, Esq., former Sheriff of the county of , of the first part, and A. P., Esq., the present Sheriff thereof of the second part, wit- ne-sseth: That the said G. H. C, the said foi-mer Sherifl^ doth, by and with these presents, deliver to the said A P., his said successor, the jail of the said county, with its appurtenances, with the pro- perty of the said county therein, all tiie* prisoners confined there- 81 NEW CLERK'S ASSISTANT. in, all process, orders, rules, commitments, and all other papers and documents, in the custody of the said G. H. C, as former SheriflF, as aforesaid, authorizing or relating to the confinement of such prisoners, and each and every of them: And in those cases where any such process shall have been returned, a statement in vniting of the contents thereof and when returned ; all writs, sum- monses, and complaints, to be served, and all mesne process, and all precepts and other documents for summoning of a grand or petit jury, now in the hands of the said G. H. 0., Esq., and which have not yet been fully executed by him; all executions, attach- ments, and final process, now in the hands of the said G. H. C, except such as he has executed, or has begun to execute, by the collection of money thereon, or by a levy on property, in pursur ance thereof The delivery is made under and in pursuance of the Revised Statutes in that behalf enacted; and the said G. H. C. doth also herein and hereby recite and certify the property, process, documents and prisoners, delivered, specifying herein the process, or other authority, by which each of those prisoners was committed and is detained, and whether the same be returned or delivered to the said A. P., the said present Sheriff, (who hath on the duplicate hereof, acknowledged in writing, the receipt of such property, process, documents and prisoners, herein specified ;) that is to say: 1. The property herewith delivered is as follows: [itnder each head give the particulars and details, dates; names of parties, rfes- cription of process, courts, accounts, i&c.'] 2. The process herewith delivered is as follows: 3. The documents herewith delivered are as follows : 4. The prisoner! herewith delivered are as follows : [name them, with the dates of cDmmitm^nt, offences, ckc.'] In witness whereof, as well the said former, as the said pre- sent Sheriff, have hereimto interchangeably set their hands and seals, thi day and year first above written.' Sealed and delivered ) in presence of ) C. D E. F G. H. C. A, P. EIts.) §. 142. Assignment of a Debt, or Wages. Know all men by these presents : That I, A. B., of, &c., for and in consideration of the sum of dollars, to me paid, by C. D., oi, &c., the receipt whereof is hereby acknowledged, have sold, and by these presents do sell, assign, transfer and set over, unto the said iThe receipt endorsed on the duplfcate, may be as follows: " 1 hereby acknowledge that I have received of G. H. C., late Sheriff, of, &c., the property, process, documents and prisoners, specified in the within instru mem. Dated, &c. A. P., Sheriff of the county of See, 2 R. S. (3d ed.) S34, S 87 ASSIGNMENTS. 85 C. D., a certain debt due me from E. F., amounting to the sum of dollars, for goods sold and deUvered, [or, work, labor and services,] with full power to sue for, collect and discharge, or sell and assign the same, in» my name, but at his own costs and charges : And I do hereby covenant, that the said sum of dollars, is justly due as w>resaid, and that I have not done, and will not do, any act to hinder, or prevent, the collection of the same by the said C. D. In witness, &c, \as in § 126.] § 143. Assignment of Policy of Insurance. Know all men by these presents : That I, A. B., of, &c., in the annexed policy named, for and in consideration of the sum ,of one dollar, to me in hand paid by C. D., of, 1 R. S.(3ded.)648, 527. » Laws of 1849, chap. 399. 4 1 R. S. (3d ed.) 648, 5 SS; Laws of 1835 chap. 62. ' Laws of l&ir, chap. 242. AUCTIONa 89 FORMS. § 145. Auctioneer's Bond. Know all men by these presents: That we, A. B., C. D., and E. F., of, &c., are held and firmly bound unto the people of the State of New York, in the penal sum of ten thousand dollars, to be paid to the said people ; for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , A. D. 18 . The condition of this obligation is such, that if the above bound en A B. shall well and faithfully perform the duties of an auctioneer, in and for the city [or, county] of , and pay, or cause to be paid, the duties that are, or shall be, imposed by law, and that shall accrue on all sales made by him, or under his direction, as such auctioneer; and shall render a true and accurate account semi- annually, of aU goods sold or struck off by him, then the above obhgatioh shall be void ; else to remain in full force and virtue. Signed and sealed, in the " - - presence of G.H. AB. L. S.' CD. L. S. E. F. L. S. § 146. Certificate of Officer Taking and Approving the £ond. Stateof New York, l^gg. County, ) On this day of ,18 , personally appeared before me, A. B., C. D., and E. F., known to me to be the persons described in, and who executed the foregoing bond, and they acknowledged that they executed the same : and I hereby certify that I approve of the said bond, as sufficient for the purposes therein mentioned. G. H., Mayor of the city of , [or, County Judge of county.] § 147. Certificate to Copy, State of New York, )^. C ty and County of New York, j I do. hereby certify, that the within [or, annexed] is a true copy of a bond taken and approved by me, according to the statute., and of the certificate endorsed thereupon at the time of such taking and approval. Dated the day of , 18 . G. H., Mayor of said city and county. 00 NEW CLEEK'S ASSISTANT. § 148. Oath of Copartner, or Clerk. I, 8. T., do solemnly and sincerely s-srear, [or, affirm,] that I am the copartner [or, clerk] of A. B., an auctioneer duly authorized to act as such, in and for the city [or, county] of ; * and that 1 will fully and faithfully perform the duties mcumbent on me by the pro\isions of Title 1 of Chapter 17 of Part I. of the Revised Star tutes of the State of New York Taken and subscribed before me, ) S. T this day of ,18 .J G. H., Mayor, &c. § 149i Oath of Auctioneer on Exhibiting his Account. I, A. B., do solemnly and sincerely swear, [or, affirm,] that the account now exhibited by me, and to which I have subscribed my name, contains a just and true account of all the goods, wares, mer- chandise and effects, sold or struck off, or struck off and not actually sold, or bought in by me, at public sale, or sold by me at private sale on commission, whether subject to duty or not, or sold, struck off, or bought in, as aforesaid, by others in my name, or undei my direction, or for my benefit, within the time mentioned in the within account; and of the days upon which the same were respectively sold; and that I have attended, personally, such of the said pub- lic sales as are not stated in the said account to have been made without my attendance; and that the causes therein .mentioned of my absence from such sales as I did not attend, are truly stated; that I have examined the entries of. all the sales men- tioned in said account, in the book kept 'by me for that purpose, ajid fully believe this account to be in all respects correct ;^ and further, that 1 have, during the time therein mentioned, conformed, in all things, to -the true, intent and meaning of the laws regulat- ing sales by auctioneers, according to the best of my knowledge, information and belief. A. B. Taken, &c., [as in § 148.] § 150. Oath of Copartner or Clerk, to be Endorsed on the Accovmi. I, S. T., do solemnly and sincerely swear, &c., [as in § 148 to the *, and then addv\ that I believe the account of sales within rendered by the said A. B., to be just and true in every particu- lar; that the sales therein mentioned, opposite to which myJname is set, [or, my initials are set,] are all thje sales liable to auction duties, public or private, made by me within the time mentioned in said account ;: and that the account of such sales; so therein stated, is just and true ; that such sales were made by me in the absence of said A. B., who was unable to attend, from the causes specified AUCTIONS. 91 in his account; and that in all acts performed by me, m behalf of such auctioneer, during the time aforesaid, I have endeavored to conform to the true intent and meaning of the laws regxdating sales • by auctioneers. Taken, &c., [as in § 148.] § 151. Certificate of Board of Fort Wardens. State of New York, ss :. [ ; We, the undersigned, composing the Board of Port "Wardens of the Port of New Tork, do hereby certify, that the goods mentioned and ''described in the annexed invoice, part of the cargp of the brig Mary Ann, on her voyage from to , which terminated on the day of ,18 , were duly examined by A. B., one of the undersigned, at a suitable and proper time; to wit: on the daybr ,18 "; and that the said goods were damaged on the voyage aforesaid, so as to be entitled to exemption from auction duties, and to be sold as damaged goods, according to the provisions of the statute in such case made and provided. ■ Given under our hands, at the Port of New York, this day of , 18 . A. B., C. D., }• Port Wardens. § 152. Affidavit of President, or Secretary, of Insurance Comjaany. State of New York, ) g^. City and County of New York, j ' G. B., being duly sworn, says : That he is the President \or. Sec- retary] of the Insurance Company in said city and county; and that the goods mentioned and described in the annexed invoice, and referred to in the certificate of the Board of Port Wardens there- unto attached, were insured in the said Company, by L. M., the owner [or, consignee] thereof, for the sum of dollars; and further says not Sworn to, before me, this ) G. B. day of ,18 .J G. H., Commissioner of Deeds. CHAPTER Vn. BANKS AND CORPOEATIONS. PRACTICAL REMARK S. 1. The general laws of this State, in relation to turnpike and moneyed corporations, — their powers, privileges, liabilities, etc. — ^may be found, in detail, in Chapter 18 of Part I. of the Eevised Statutes, ( Volume I., p. 710, et seq., 3d ed.) 2. The duties and Uabilities of banks, and the authority of directors to give discretionary powers to officers, in making loans and discounts, are reviewed at length, in the case of The Bank Commissioners, vs. the Buffalo Banks, (6 Paige, 499.) 3. Chapter 437 of the Laws of 1849, requires every company or association, including every individual doing business alone, incorpo- rated or organized, or doing business under any law of this state, to publish annually, on or before the first of September, for six succes- sive weeks, in one pubhc newspaper, printed in the county in which the company or association may be located, a true and accurate statement, verified by the oath of the cashier, treasurer, or presiding officer, of all deposits, dividends, and interest, unclaimed for two years then next preceding. 4. For other special provisions in relation to banking corporations, see Laws- of 1837, chap. 20; Id. chap. 235; Laws of 1839, chap. 355; Laws of 1840, chap. 18; Id, chap. 202; Laws of 1842, chap. 247; Laws of 1843, chap. 218; Laws of 1845, chap. 114; Laws of 1847, chap. 160; Id, chap. 419; Laws of 1848, chap. 344 5. No special charter can be granted for banking purposes ; but corporations, or associations, may be formed for such purposes under general laws. No law can be passed, sanctioning the suspension of specie payments by any person, association, or corporation, issuing bank notes of any description; and in case of the insolvency of any bank, or banking association, the billholders will be entitled to pre- ference in payment over all other creditors.' > Amended Consiiiution of New York, An. viii., $§ i, B, 8. BANKS AND CORPORATIONS. 93 6. After the first day of January 1850, the stockholders in every corporation, or association for banking purposes, issuing bank notes, or paper credits, to circulate as money, will be individually liable, to the amount of their respective shares of stock, for all debts and liabi- lities contracted subsequent to that day.' 7. The General Banking Law is contained in chap. 260, Laws of 1838; amended in chap. 363, Laws of 1840; chap. 46, Laws of 1841; chap. 160, Laws of 1847; Id., chap. 419; and chap. 340, Laws of 1848. In the volume of Session Laws for 1841, at page 851, the original law may be found, as amended by subsequent enactments^ together with other statutes affecting associations formed under it Associations formed under this law are liable to taxation." 8. The provisions of law applicable to religious incorporations, are contained in volume III. of the Revised Statutes, (3d ed.,) p. 244, et seq. The treasurer of every religious corporation singly, or the trustees or persons entrusted with the care and management of the temporalities of a church, congregation, or rehgious societj% already incorporated, in the cities of New York, Albany, or Schenectady, or a majority of them, are required by the act of 1813, (section 10,) to exhibit triennially to one of the Justices of the Supreme Court, or a Judge of the Court of Common Pleas, or County Judge of the county in which the church, congregation, or society is situated, an account and inventory of all the corporate estate, and of the annual revenue arising therefirom ; and if this duty be neglected for the space of six years, and if the account and inventory are not then exhibited, and the certificate of the officer, to whom the same is presented, endorsed thereupon, that the real and personal estate of the corporation does not, or has not, for the preceding six years, exceeded the sum which it is entitled by law to receive, the trustees, or persons entrusted as aforesaid, cease to be a body corporate. 9. County Courts have the power to permit the mortgage or sale of the real property of a religious corporation, situated within the county, on the appfication of such corporation, and to authorize the appropriation of the proceeds thereof 10. The general law providing for the incorporation of bridge companies, may be found at chap. 259, Laws of 1848. 11. The act to authorize the formation of corporations for manu- facturing, mining, mechanical or chemical purposes, is contained in the Session Laws of 1848, chap. 40. 12. Chap. 319, -Laws of 1848, authorizes the incorporation of benevolent, charitable, scientific and missionary societies. 13. Under the new Constitution of this State, no corporation ex- -> 1 Amended Constitution of New York, Art. I 2 Id., ail j 3 Id., 389 j 4 Id., 442 ; 7 Id , 604 j will., (7. 1 Denio, 9 ; 2 Id., 38U. I iS Wendell, 9; 23 Id., 103; 1 Hill, 616; >Lawa of 1849, (Code of Fractice,) cbnp. 438, $ 3U, aub. 8. 94 NEW CLERK'S ASSISTANT. cept for municipal purposes, can be created by special act, where the objects of the corporation can be attained under a general law. Hereafter corporations may sue or be sued, like natural persons. 14. After the dissolution of a corporation, the stock cannot be transferred so as to pass the. title " . . 15. Certificates of the incorporation of religious societies may, be proved, or acknowledged; before any officer authorized to take acknowledgments, or proofs of conveyances of real estate. _ 16. Whenever any church, congregation, or reli^ous society, shall omit to choose officers, the old officers may hold over until others are chosen, provided an election, to supply such omisaon, be held within one year after its occurrence.* 17. A " call " from a Presbyterian congregation, drawn in the manner prescribed by the discipline of that church, and signed by three elders and a trustee, does not bind them to pay the salary, but is the act of the congregation.' 18. The seal of a corporation maybe affixed, or impressed, directly on paper, without the use of wax or a wafer." 19. It is not necessary that the proceedings of a corporation, at a corporate meeting, should be authenticated by seal' FORMS. § 153. Transfer of Stock in a Bank, Company, or Corporation. Know all men by these presents : That I, A. B., of, ...a. . ,-. 7 G. H., Justice of the Peace. y» KEW CLERK'S ASSISTANT § l64. Certificate of the Formation of a Manufaetwnrig CorporOr • . tion, to he Made, Signed) and AcJcnowkdged, before any Officer competent to take the AcJenowledgrmnt of Deeds.^ State of New York, )g. County, ) We,. whose names are hereunto annexed, do hereby certify, that we have associated together as a manufacturing corporation, to con- tinue in existence till the' day of , 18 , [not to exceed fifty years,1 for the purpose of carrying on, and conducting, the manufac- ture of glass, [or, cotton and finen goods, &c., &o. :] that- the corpo- rate name of the said company is " The ;" that the amount of the capital stock thereof is one hundred thousand dollars, and is divided into one thousand shares ; that the number of trustees of the said company is nine ; and that the following are the names of the trustees who will manage its concerns for the first year, to wit : A. B., C. D., E. F., &o., &c. And we do further certify, that the manu- facturing operations of the said company will be carried on at the city [or, town] of , in the coimty of , aforesaid. Dated this day of , 18 . Signed and acknowledged before ") A. B. me, by the said A. B., C. D., C. D. E. F., &c., &c., each and every v E. F. of them, this day of ,[ &c., dcc.^ 18 . J G. H., Couniy Judge of coimty. 1 165. Certificate of Incorporation vfan Episcopal Church. To aU whom these presents may concern: We, whose names and seals are affixed to iius instrument; do hereby certify, that on the day of , in the year 18 , the male persons of full age worshipmg m the school house of school district number , in ihe town of , in the county of , and State of New York, [or, in their house of public worship, in the town of , in the county of , > called St John's Church ; or, as the fact may Je,] in which congregation divine worship is celebra- ted, according to the rites of the Protectant Episcopal Church in the State of New York, and which is not already iucorporated, met ai their place of worship, aforesaid, for the purpose of incorporating themselves as a religious society, |Under the acts of the Legislature of the State of New York, 'aid' in pursuance of notice duly given to the said congregation, in the time of morning service, on t^o Sundays previous to such meeting, that the male persons of full age belonging to said congregation, would meet at the time and place aforesaid, for the purpose of iacorporating themselves, and of electing two Church > The original must be filed in the Clerk's I be carried on, and a duplicate in the ofGce of office of the county in which the business is te { the Secretary of State. BANKS AND COEPOEATIONS. 99 Wardens and eight Vestaymen: And we further certify, that the Reverend A. B., oeing Eector of said Church, presided at the said meeting, [or, if there be no Rector, say: there being no Rector of the ' said congregation, or church, the undersigned, L. M., was, by a ma- jority of the said persons so met, called to the chair, and presided at the said meeting:] And we further certify, that at the said meeting, C. D. and E. F. were duly elected Church Wardens of the said con- gregation and church, and O. P., S. T., G. H-'fL. s.] ' S. T.. -; • \ '■' '■■ ■■ ' § 167. Triennial Eeport of a Eeligious Corporation. To the Hoii.'J. "W. E.,'6he of the Judges 'of the Supreme"* Court of the State of New York: ; ■• ■ ■ ; - J "'' The imdersigned, 'the Reictor, Church Wardens, and Vestrymen of St' Mark's- Churchy [or, the Trustees of the 'Fii'st Baptist 'Society of ■ '■,] a religious corporation, situate in the cil^r 0? "' '' , in the State of New York, respectfully report, that the following is a faithful, true, and correct account' aild inventory" of all' the eStite,' bothreal and personal, belOn^g to said church [or, coirgregatioii'l or, society,] at the time of the exhibition of thisreport, to wit : ' One^ehurch edifice, and lot 'on which the same is situatfe, known by the street numbers 67 and 69, on street, in said'cit/of ' J.;: , and valued at - dollars. > : > " .,. j- One parsonage and lot, kno'vm as No. iSO street in said city of i^f ' '■' i and valued at ' '^ ' dollars. ' \lnsert here all the parcels and items of the red and personal estate^', ■;•■--■ ,.'■'--'»- ' ■-'';.--"-','* ■.'j^'---;-' And. the undersigned' further report that the foUo'vring is a just and correct account of the annual revenue arising from tlft real and personal estate aforesaid, from the day of '; 1847, to the day of -, 1850, to ■wit: [Insert here the reve- nue fofeach year separately."] , VIVWUV " V , ,H. •• ;,l.l^ Dated at , the day of • , 1850. C. S. E., Eector. J ft!' [ Churchwardens. B.X.' } ' " S. T., [■ Vestrymen. State of New York, ) City and County of New York, \^[ , , OiS. E., R. R, &(i., &c,, being 1 duly sworn, depose and say, and each for himself deposeth < and saith, that he, .has read F&r, heard read] the foregoing report by him signed, and that, the lame is in all respects faithful, jjj^t and true, to the best of his knowledge and belief, ;■. _, ,( r .,,..,. Sworn [or, aflSrmed] to, this day) C. S. R, of , 18, before me, j &c. For form of a cartificate of acknowledgment, see chapter I., and J 163, ttnle. BANKS AND CORPORATIONS. 101 § 168. AppUcationJhr permission to Mortgage or Sell the Real Estate of a JReligious Corporation. To the Covtnty Court or County : The undersigned, trustees of the Society of the town of , in said county, [or, as the style or name of the corporation may Je,] respectfully represent, that \here state concisely the reasons for making the application,,) and the manner in which the proceeds are intended to be appropriated^ Wherefore, the undersigned request that an order may be made and entered by t^ honorable court, authoB2fing them to. mortgage \or, sell] the 'property aforesaid, upon the terms and in the manner aforesaid, and that the proceeds of such mortgage \or, s^le] may be appropriated as above specified. Dated at , the day of . ,1850. Trustees of the Society " the town of &C. &C. ] State of New York, )g. County, J A. B., C. p., &c, &c., being duly sworn, depose and say, and each for himself deposi^th andsaith, that he has read \or, heard read] the foregoing application by him signed, and that the facts and circum stances therein stated snd set forth are just and true, to the best C: his knowledge, infin-matioii and belief I. Sworn \or, affirmed] to, this day ) A. B. of 1850, before me, J . CL D: J. P. H., County Judge. && 7 Hill. 577 ' BILLS AND NOTES. 103 previous to, and at the time of giving notice of non-payment or non- acceptance ; but the holder will be entitled to interest on the aggregate amount of the principal sum and damages, from the time of the protest for non-acceptance or non-payment. There is no reference to the rate of exchange, in ascertaining such damages, when the bill is payable in the money of the United States ; otherwise, if payable in the money of account, or currency, of any foreign country.' 5. A negotiable bill of exchange, or promissory note, must be for a fixed sum payable in money ; and the time fixed for the payment must be such as will certainly come, though it may depend on a contingency." 6. No precise form of words is necessary to constitute a valid pro- missory note. A promise to account for a certain sum, or an acknowledgment of indebtedness for value received, is suflicient Any thing valuable is a good consideration for the promise, or ack- nowledgment.' 7. A note commencing, " I promise to pay, &c.," and signed by two parties, is joint and several ; so also, where one signs a note as surety for another. 8. A promissory note given by an infant, even for necessaries, is void.* 9. A guaranty* of the collection of a promissory note, without expressing any consideration, is void; othei-wise, with a guaranty of payment, if there be in fact a new and distinct consideration, though not expressed.' 10. A general guaranty of payment, upon a note payable to bearer, as, " I guaranty the payment of the within note," is, in law, a general endorsement of the note, and any subsequent holder may recover of the guarantor, on proof of demand and notice.' 11. A party may become an endorser of a biU, or note, by any mark, whether his initials, or other figure or sign, if it be substituted for his name, and he intend to be bound by it' 12. The endorsement of a bUl, or note, in blank, is a mere agree- ment to pay, on the usual conditions of demand and notice.' 13. If a note be made payable to the order of several persons,, not copartners, it must be endorsed by each person. If an endorser wishes to free himself from all liabiliiy, the words, " without recourse," should be written before his name. 14. Where cross notes are given, each holder is a purchaser for value, and has the same rights as the payee of an ordinary note.' 15. Bills, or promissory notes, negotiable or otherwise, payable at a certain day ; as, so long after date, after demand, or on any other 1 2 R. S. (3d ed.) 54, 55, 55 1&-23. « 3 Demo, 423. ' ' ><» s 5 Johnson, 237: 2 Cowen 636: 10 Wendell, 675: 1 Hill, 256j 7 Id., 253: 3 iarbom'8 s' C. kep,. 374. • 10 Johnson, 141; Id., 349. » 15 Wendell, 343; 24 Id., 33; 26 Id.. 425; 2 Barbour's S. C. Rep., 51; S Duilio, 431; 2 Comstock, 225; Id., 633: Id., 6S3. » 4 Hill, 420; 6 Id., 639. , 1 6 Hill, 443; 1 Denio, 471. • i « 7 Hill, 416; 1 Denio, 608. • • 2 Denio, 621: 3 Id., 187. 104 NEW CLERK'S ASSIST A.NT. 'particular day mentioned in the note, are not payable until the third day after the day expressed ibr, the payment,. , These three days are cialled "days of grace," and no action can, be brought on a note until after they have expired.' ,,,, .,, „v,.:.j ■., -«i : '16. New Year's day, iihe fourth dJay of July, Christmas day, and' ^Thanksgiving day, are to, be Seated, ,^nd considered, as Sunday, .m 'N&w York, for aiU. purposes yfiatsoeyer, as, regards the presenting foi* j^ayment or acceptance, apd the jprotesting. and giving, notice of dishonor, of bills of exchange, bank checks, ,and proinissoiy: notes, madeoi' drawn after tbe 7th day of April, 1849." ,., . . ■ 17. Bills, or notes, payable on demand, , given due, or on the face ofVhich there' is no time of payment expressed, are immediately due» without grace," .^ ,, - ,.,■ ,,.,.,. ' 1 ^. A note payable in specific articles, " when called for," or without nientioding any time for tixe payment^ is payable on demand, at the place where the articles are .sold, pr mapHfactured, by the maker; but demand must be made within reasonable hours.* . ' 19. In order to hold an endorser liable, a demand of payment on bills, or notes; must be made on jihe third day of graces ,.If the third day falls on Sunday, or on any great holiday, demand must b^ made on Saturday, or the day preceding the holiday. The demand must be made at the place of business of the maker, or acceptor, within business hours, or at the place of, payment, wbere it is specified. If the party has absconded, no demanjl is necessary,; and where he has no place of business, it may be made, at his dwelling-house. It is competent for any person, who has arrived at yfears of discretion, though not a Notary, to make the demand, if authorized by the holder. An endorsed note, payable on deniand, must be presented within a reasonable time. In Massachusetts, , sixty days has been held reasonable.' ,, \ „ , ... , .. , 20. Where a note, not' payable at any particular place, is made and endorsed in New York, and both the maker and endorser reside in a foreign country, it must be duly presented to the maker, if the place of his residence "be known, and notice given to the endorser, irf 6i-der to charge the latter,' . j ■ ,, .. 21. A perspn becoming surety on a note, must be treated and charged as aii endorser.'' , , , ,. , . . ,, ,,- . • •' - 22. An' endorser may waive demand and notice before maturity of the bill or note endorsed, without, any consideration for such waiver.' , , . . . 23. The dating of a promissory note at a particular place does not make that the place pf payTnent,,an4 auljhom^ a demand to be made there to charge the fenddrser; though it is presumptive evidence that the place mentioned is the readence of the maker.' i6Cowen,203. . ' ' 1 » I Barbour's S. C. Rep., 158 j 1 Comatock, " Laws of 1849, chap. 261. .1321. • 8 Johnson, 189 , IcT, 374 ; 3 Denio, 12. I ' 7 Hill, 416. ;, • 2 Denio, 14S I i * 1 Comstoek, 186. •tBUI|129. I *3D(mlu,145. BIIXS AND NOTES. 105 24. Where a note is assigned alter maturity, the assignee takes It subject to all equities and iset-offs, between the assignor and the maker.' - ■ ' - 25. One who makes or endorses an accommodation note is a surety for the party accommodated, aiid the latter is liable to refund the costs of a suit for collection brought against such maker or endorser.' 26. In all cases where notice of non-acceptance, or non-payment, of a biU or note, or other negotiable instrument,' may be given by mail, it wiU be sufficient if such notice be directed to the city, or town, where the person sought to be charged Resided, at the time of making,' drawing, or endorsing the same, unless at the time of such making, drawing, or endorsing,' he shall Specify thereon the post office to which he may require the notice to be addressed." 27. A notice of protest should be sent to the post office at which the person to whom it is directed is accustomed to get his letters, where his address is not endorsed on the bill or note.* 28. No precise form of words is necessary to constitute a sufficient notice of protest. The identity of the note, and the fact of the demand and non-paymenl^ must be brought home to the party sought to be charged^ and the notice may be either oral or written.* 29. The certificate of the Notary need not state, by whom the service of notice, and deposit in the post office, was made.' 80. A sealed note is a specialty, and is not barred by the statute of limitations. FORMS. § 170. Bill of Exchanged ^3000. Buffalo, May 1, 1845. Thirty days after sight, pay to the order of Messrs. B. M. & Ca two thousand dollars, and charge the same to account of AB. To Messrs. T. R. &. Co., New York 1 11 Wendell, 404. > 3 Barbour's S. C. Rep., 634. » 2 KS.m ecL) 55, f 24; iaws of 1836, chap. 141. i 4 Barbour's S. C Rep., 334, • 1 Comatock. 413. : ' 7 Hill, 444. 1 The usual form of accepting, is to write the-wDid " Accepted," with the name of the acceptor, across ths face, or on. the back cif the bill or draft. . . ' ' 106 keW cleek's assistant. § 171. ^ Set of Bills. No. 139. — Ex. £250 stg. New York, May 1, 1845. Thirty days after sight of this, my first of exchange, (second and tliird unpaid,) pay to Messrs. G. W. & Co., or order, two hundred and fifty pounds sterUng, value received, and charge the same to account of A. B. To Messrs. T. W. & Co., London. No. 139. — Ex. £250 stg. New York, May 1, 1845. Thirty days after sight of this, my second of exchange, (first and third unpaid,) pay to Messrs. G. W. & Co., or order, two hundred and fifty pounds sterling, value received, and charge the same to account of A. B. To Messrs. T. W. & Co., London. No. 139. — Ex. £250 stg. New York, May 1, 1845. Thirty days after sight of this, my third of exchange, (first and second unpaid,) pay to Messrs. G. W. & Co., or order, two hundred and fifty pounds sterling, value received, and charge the same to account of A. B. To Messrs. T. W. & Co., London. § 172. Promissory Note, Negotiable} $100. Thirty days after date, I promise to pay C. D., or bearer, \or, order,] one himdred dollars, for value received. .,. _. A. B. Albany, May 1, 1847. § 173. The Same, Joint and Several $200. Ninety days from date,; for value received, we, or either of us, promise to pay C. D., or bearer, [or, order,] two himdred dollars. A, B. Albany, May 1, 1847. E; F. § 174. Note, not Negotiable. $50. Three months after date, I promise tQ pay C. D. fifty dol- lars, for value received. A. B. Albany, May 1, 1847. I Where a note is to lie on interest, the worda, 1 interest, where none is mentioned, is, that * with interest," may be added to this and the notes on time draw interest afler^'due, and following forms. The rula of law in regard to | notes on demand, after the demand bo made BILLS AND NOTES. 107 § 175. Note, PaycJ)le on Demand. ' $60. On demand, I promise to pay C. D., or bearer, \or, order,] fifty dollars, for value received. A.R Albany, May 1, 1847. § 176. Note, Payable at Bank. $500. Sixty days after date, for value received, I promise to pay C. D., or order, five hundred dollars, at the Mechanics' and Farm- ers' Bank Albany, May 1, 1847. A. B. § 177. Note, Pay Me hy Instalments. $500. For value received, I promise to pay C. D., or bearer, [or, order,] five hundred dollars, in the following manner: one hundfred dollars in three months, one hundred dollars in six months, one hun- dred dollars in one year, and two hundred dollars in two years from date, with interest on the several sums, as they become due, [or, with annual interest] A. B. Albany, May 1, 1847. § 178. Note, Payable in SpeMc Articles. $50. One year after date, for value received, I promise to pay C. D., or bearer, [or, order,] fifty dollars, in second quality pine lum- ber, at the current price. A.B. Albany, May 1, 1847. § 179. Memorandum Note for Money Lent. $100. Borrowed of C. D., one hundred dollars, payable on de- mand. A.B. Albany, May 1, 1847. § 180. Note, with Surety. $100. One year from date, I promise to pay E. F., or bearer, [or, order,] one hundred dollars, for value received. A.B. C. p., Surety. , Albany, May 1, 1847 108 NEW CLERK'S ASSISTANT. § 181. .i?w BUI, PaydhU in Goods. Due C.'D., or bearer, ten dollars in goads, for value received, payable on demand. A,B. Albany, May 1, 1847 §182. Order for -Goods. Mr. A,B.: Please pay E.F., or bearer, ten dallai-s in meroilan- dise, and charge the same to the accoimt of G.'D. Albany, May 1, 1847. § 183. The Same, in another Form. Mr. A B. : Please deliver to E. R, such goods as he may want, amoimt not to exceed twenty dollars, and charge the same to the account of CD, Albany, May 1, 1847. § 184. Order for Money. Mr. A B. : Please pay E. !F., or bearer, fifty dollars, and charge the same to the account of Albany, May 1, 1S47. C. D. § 185. Guwranty of Payment, to he Endorsed on Note. Pay to the bearer, and, \the foregoing words are necessary, only when the note is payable to order, "] for value received, I guaranty the pavment of the within note. CD. May 1, 1845. § 186. Guaranty of Collection. For value received, I guaranty the collection of the within note, CD. May 1, 1845. §, 187. Protest of BUI for Nan- Acceptance. United States of America, ) State of New York, ]^' On the day of ,18 , at the request of A. B., [mi- sett the name of the holder, or endorser, or'«wtfor*ee,]'I, J. Nl'S., a Notary Public, duly admitted and sworn, dwelling in the citv of BILLS AND NOTES. 109 Auburn, m the State aforesaid, did present the ori^nal bill of ex- change, hereunto annexed, to E. F., the drawee therein named, for acceptance, who refused to accept the same : Whereupon I, the said Notary, at the request aforesaid, did protest, and by these presents do publicly and soleinnly protest, as well against the drawee, [add, and endorsers, if necessary,'] of the said bill, as against all others whom it doth. or m^nium teritatis, 1 1, s.] J N. a, Notary^ Publia • 110 ■ NEW CLERK'S ASSISTANT. § 189. Notice'of Protest for Non-Acceptance. Mr A. B.: Sir— You will take notice, that your bill for $2,000, at thirty days from sight, dated May 1, 1847, drawn on C. D., has this day been protested for non-acceptance. Dated Auburn, May 6,1847. Yours, &C. J. N. S., Notary Publia § 190. Notice of Protest for Non-Payment. Mr A. B. : Sir— You will take notice, that your bill for $2,000, at tlurty days from sight, dated May 1, 1847, drawn on and accepted by C. D., has this day been protested for non-payment: [or, that the bill of -A. B. for $2,000, at thirty days from sight, dated May 1, 1847, endorsed by you, [or, by A. B., E. F., &c., &c.,] and drawn on and accepted by C. D., has, &c., as above; or, that the note of A. B. for $1,000, dated May 1, 1847, payable at the Bank, sbrty days after date, and endorsed by E. F. and G. H., has, residue and remainder, of his natural life ; and that he, the said party of the second part, will pay unto the said party of the first pai-t, the sum of dollars, on the first day of January, in each and every year during the said time: provided, however, that the said party of the second part shaU be forever released and discharged from the covenants above contained, on his part to be performed, if the said party of the first part shall refuse to reside in the county of , aforesaid, except such refusal be occasioned by inability to obtain comfortable and sufficient board, lodging and maintenance, in the said county. In witness whereof, the said parties have hereunto set their hands and seals, the day and year first above written. Signed, sealed and delivered, ) A. B. [l. s.l in presence of j CD.' [l. s.1 G. H. § 195. Bill of Sale of Registered or Enrolled Vessel. Know all men by these presents : That I, A. B., of, &c., owner of the brig, or vessel, called the " Isabella," of the burden of tons, or thereabouts, now lying at the port of , for and in con- sideration of the sum of dollars, lawful money of the United States, to me paid, by C. D., of the place aforesaid, the receipt wherof I hereby acknowledge, have bargained and sold, and by these presents do bargain and sell, unto the said C. D., his executors, administrators and assigns, aU the huU or body of said brig, or ves- sel, together with the masts, bowsprit, sails, boats, anchors, cables, spars, and all other necessaries thereunto appertaining and belonging; the certificate of the registry of which said brig, or vessel, is as fol- lows, to wit : [copy certificate of registry :'\ To have and to hold the said brig or vessel, and appurtenances thereunto belonging, unto the said C. D., his executors administrators and assigns, to his and their pro- per use, benefit and behoof, forever. And I do, for myself, my heirs, executors and administrators, covenant and agree, to and with the said C. D., his executors, administrators and assigns, to warrant and defend the said brig, or vessel, and all the before mentioned appur- tenances, against all and eveiy person and persons whomsoever. In witness, &c., \asin § 193, I § 196. Bill of Sale and Chattel Mortgage. Know all men by these presents: That I, A B., o^ &o., in con- sideration of one dollar to me paid, by C. D., of, &c., the receipt BILLS OF SALE AND CHATTEL MORTGAGES 117 wliereof I hereby acknowledge, have, and by these presents do grant, bargain, sell, assign, transfer and set over, unto the said C. D, and his assigns, forever, the following goods, chattels and property, to wit: \gpec\fy the articles, or refer to them in the schedule annexed, as directed in the note (o § 193:] Whereas I, the said A. B., am justly indebted to the said C. D., in the sum of one hundred and ten dollars, on account, for money had and received, and goods Sold and delivered, [or, on a promissory note, dated, &c., and due months from date,] to be paid to the said C. D., or his assigns, on the day of 7 18 , with the legal interest tliereon from the day of the date hereof : Now the condition of the above bill of sale is such, that if the said A. B. shall well and truly- pay to the said C. D., or to his agent, attorney, or assignee, the above mentioned demand, [or, demands,! at the time, and in the manner and form above expressed, and shall keep and perform the covenants and ag-reements above contained, on his part to be kept and performed, according to the true intent and meaning thereof, then the above bill of sale shall be void : Otherwise, on the neglect and failure of the said A. B. to pay the said demand, [or, demands,] or to keep and perform the said covenants and agree- ments as above expressed, then, and in that case, the said C. D. and his assigns, are hereby authorized and empowered to sell the above described goods, chattels and property, [or, the goods, &c., described in the schedule hereunto annexed, as aforesaid,] or any part thereof at public or private sale, at his or their option, and to retain from the proceeds of such sale, in his or their hands, sufficient to pay an(i satisfy the whole amount of the above mentioned demand, [or, de- manifc,] with the legal interest thereon which shall be due at the time of such sale, and all costs, charges and expenses, incurred by the said C. D., or his assig-ns, in consequence of the neglect and fail- ure of the said A. B., as aforesaid; rendering the overplus, if any, to the said A. B., or to his heirs, executors, administrators, or assigns, on demand. [The said C. D. and his assigns, are hereby authorized, for further security, to take the said goods, chattels, and property, into his or their possession, at any time he or they may think proper.] In witness, &c., [as in § 193.] § 197. Common Chattel Mortgage. This indenture, made the day of, " I * 2 Barbour's Ch. Rep., 119 BONDS. 123 Ijhousand dollars, lawful money of the United States, to be paid to the said C. D., his executors, administrators, or assigns ; for wliioh payment, well and truly to be made, I bind myself, my heirs, execu- tors, and administrators, fii-mly by these presents. Sealed with my seal. Dated the day of , one thousand eight hundi-ed and The condition of the above obligation is such, that if the above bounden A. B., his heirs, executoi-s, or administrators, shall well and truly pay, or cause to be paid, unto the above named C. D., his exe- cutors, administrators, or assigns,? the just and full sum of five hun- dred- dollars, in five equal annual payments, from the date hereof, with annual interest, then the above obligation to be void ; otherwise to remain in full force and virtue. Sealed and delivered, ) A. B. [l. s.J in presence of f "^ G.H. § 206. Bond of Two Obligors. . Know all men by these presents : That we, A. B. and E. F., of, &c., are held and firmly bound, unto C. D., of, &c., in the sum of one thousand dollars lawful money of the United States, ' to be paid to the said C. D., his executors, administrators, or assigns ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and seve- rally, firmly by these presents. Sealed with our seals. Dated this day of , one thousand eight hundred and .* The condition of the above obligation is such, that if the above Dounden A. B. and E. F., or either of them, their or either of their heirs, executors, or administrators, shall well and truly pay, or cause to be paid, unto the above named 0. D., &c., \as in § 205 to the endi] Sealed and delivered, ) A. B. [l. a.' in presence of J E. F. [l. s. G.H. § 207. JBond — Several Fayments. Know aU men by these presents : &c., [as in ^ 205 to the *, and then add:'\ the just and full sum of five hundred dollars ; in manner following, thait is to say: the sum of one hundred dollars on the tenth day of next ; the sum of two hundred dollars on the day of ,18 ; and the retniiining sum of two hundred dollars in one year from the said last mentioned date, together with the legal interest on the whole sum remaining unpaid. 124 NEW. CLERK'S ASSISTANT. at the time of each payment; then the above obKgation to be void; else to remain in full force and virtue. Sealed, (fee, [as in § 205.] § 208. Bond, with Interest Condition. Know all men by these presents: (fee, [as in § 205 to the *, and then add:'] the just and full sum of five hundred dollars, on the day of , in the year of our Lord, 18 , and the legal interest thereon, to be computed from the day of the date hereof, and to be paid semi-annually, on the second day of January, and the first day of July, in each and every year; then the above obligation to be void; else to remain in full force and virtue. And it is hereby expressly agreed, that should any default be made in the payment of said interest, or of any part thereof, gn any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrear, for the space of sixty days, then, and from thenceforth, that is to say, after the lapse of the saicl sixty days, the aforesaid principal sum of five hundred dollars, with all arrearages of interest thereon, shall, at the option of the said C. D., his executors, administrators, or assigns, become and be due and payable, immediately thereafter, although the period above limited for the payment thereof may not then have expired; any thing herein before contained to the contrary thereof, in any wise notwithstanding Sealed, (fee, [cm in § 205.] § 209. Bond to a Corporation. Know all men by these presents : That I, A. B., of, (fee, am held and firmly bound, unto the Insurance Company, in the sum of one thousand dollars, lawful money of the United States, to be paid to the said Insurance Company or assigns ; for which payment, well and truly to be made, I bind myself, my heirs, exe- cutors and administrators, firmly by these presents. Sealed with my seal Dated the day of , one thousand eight hundred and .* The condition of the above obHgation is such, that if the above bounden A. B., his heirs, executors, or administrators, shall well and truly pay or cause to be paid, unto the above named Insu- rance Company, or assigns, the just and full sum of, (fee, [as in § 205 ^^ hnxJhjtMj J-uAj^c/y^fiju ' \acujLf ooQj fU/eJo /ruiiaii^AM:> a^cZ-cC oLcl^jL eoi£Jt ^ A«^;^ iouAj //cc^ CenJj^ luZCy cc^d(^ ^flo/^'/ul/y gU^u^ lU^rtUAJ '^doux^.dcy ^ ^Ifiuei) ^tvilej ^t*^nMj fUfSAi^ ^HJc /^/^^^-^ A^^-jJv. BONDS. 129 deliver over, to his sr- -^ssor in ofiBce, or any other person duly au- thorized to receive tl - me, all such balances, or sums of money, goods and chattels, and other tilings, which shall appear to be in his hands, and due by him to the said company; [or, bank;] and if the said A. B. shall well and truly, honestly and 'faithfully, in all things, serve the said company, [or, bank,] in the capacity of cashier, [or, teller; of, treasui-er,] as aforesaid, during his Qontinuance in office, then the above obligation t» be void ; else to remain in full force and virtue. Sealed, &c., [as in § 205.] § 218. Bond of Indemnity to a Surety in a Bond. Know all men, &c. : [as in § 206 to the condition, and then add:'] Whereas the said C. D., at the special instance and request of the above bomiden A. B., has bound himself, together with the said A. B., unto one E. F., of, &c., in a certain obligation, bea;ring even date herewith, in the penal sum of one thousand dollars, lawful money of the United States, conditioned for the payment of the sum of five hundred dollai-s, due and owing by the said A. B. to the said E. F., on, &c. : [as in the bond; or, if a bail bond be referred to, say — conditioned for the appearance of the said A. B., (fee. ; or, conditioned that the said A. B. shall put in special bail, ifec. :] Now, therefore, the condition of the above obligation is such, that if the said A. B. shall well and truly perform and fuliill the condition of the said bond executed to the said E. F., in manner and form as he is therein re- quired to do, and at all times hereafter save harmless the said C. D., his heirs, executors and administrators, of and from the said obliga- tion, and of and from all actions, costs and damages, for or by reason thereof, then this obligation to be void; else to remain in full force and virtue. Sealed, &c., [as in § 205.] 8 219. Bond of Indemnity on Paying Lost Note. Know all men, &c. : [as in § 206 to the *, and then add:] Whereas the said C. D., on the day of , 18 , did make, execute and deliver, unto the above bounden A. B., for a valuable conssidera- tion, liis promissory note, for the sum of one hundred dollars, written due and payable, on or before the day of , then next, with interest, which said promissory note the said A. B., since the deliveiy of the same to him, as aforesaid, has in some manner, to him unknown, lost out of his possession ; and whereas the said C. D. hath this day paid unto the said A. B. the sum of dollars, the re- ceipt whereof the said A. B. doth hereby acknowledge, in fuU satis- faction and discharge of the said note, upon the promise of the said 130 KEW CLEKK'S ASSISTANT. A. B. to indeirmify and save harmless the said 0. D. in the premises, and to deliver up the said note, when found, to the said C. D., to be canceled: Now, therefore, the condition of this obligation is such, that if the above bounden A. B., his heirs, executors, or adminis- trators, or any of them, do and shall, at all times hereafter, save and keep harmless the said C. D., his heirs, executors and administrators, ot from, and against; the promissory note aforesaid, and of and from all costs, damages and expenses, that shall or may arise therefrom; and also deliver, or cause to be delivered up, the said note, when found, to be canceled, then this obligation to be void ; else to remain in fuU force and virtue. Sealed, Laws of 1817, chap. 429. | » Laws of 1842, chap. 202. 134 NEW CLERK'S ASSISTANT. § 228. For Imposing Fines. Hear ye, hear ye, hear ye : The court have imposed a fine of dollars, upon each of the following persons, for non-attendance as grand jurors, [or, petit jurors; or, constables,] at this court, to wit: A. B., of , &c. &c. § 229. For Persons to Appear on Recognizances. Hear ye, hear ye, hear ye : All manner of persons who are bound by recognizances to prosecute, or prefer, any bill of indictment, against any prisoner or other person, let them come forth and prose- cute, or they will forfeit their recognizances. § 230. For Persons Bound to Answer. Hear ye, hear ye, hear ye : A B., come forth and answer to your name, and save yourself and bail, or you will forfeit your recognizance. § 231. For Bail to Produce Principal. , Hear ye, hear ye, hear ye : C. D. and E. R, bring forth A. B., your principal, whom you have undertaken to have here this day, or you will forfeit your recognizance. § 232. For Discharge of Persons against whom no Bills are found. Hear ye, hear ye, hear ye : If any man can show cause why A B. should stand longer bound, \or, imprisoned,] let him come forth, and he shall be heard, for he stands upon his discharge. § 233. Discharge. Hear ye, hear ye, hear ye : No cause being shown why A. B. should longer remain in custody of the Sheriff of the county of , he is discharged. § 234 For Jury in a Civil Cause. Hear ye, hear ye, hear ye : You, good men, who are here empan- neUed and returned, to try this issue, joined between A. B., plaintiff, and C. D., defendant, answer to your names as you are called, and ?ave your fines. § 235. For Defendant on an Inquest. C. D., come forth- and make your challenges, or you will lose your challenges, and inquest will be taken against you by default CLERKS AND CEIERS. 135 § 2*36. For Plaintiff to Appear and Prosecute. A. B., appear and prosecute your, action, or your default -will be entered. § 237. For Adjouriunent. Hear ye, hear ye, hear ye : AH manner of persons who have any further business to do at this Circuit Court, and Court of Oyer and Terminer, may depart hence, and appear here again to-morrow morn- ing, at o'clock, to which time these courts are adjourned. § 238. For Opening Court after Adjournment Hear ye, hear ye, hear ye : All manner of persons who have been adjourned over to this hour, and have any further business to do at this Circuit Court, and Court of Oyer and Terminer, may draw near, and give their attendance, and they shall be heard. § 239. Calling a Witness to answer on a Subpoena. D. M., come forward and testify in this issue, joined between A. B. plaintiff, and C. D., defendant, according to the command of a sub- poena therein served on you, or your defaidt will be entered. § 240. Oath of a Witness to give Evidence. You do swear, that the evidence you shall give in this matter in difference, between A. B., plaintiff, and C. D., defendant^ shall be the truth, the whole truth, and nothing but the trutk So help you God.' § 241. The Same, by the Uplifted hand. You do swear, in the presence of the ever-living God, that, vice of a subpoena on E. F., to appear here this day A. B. ) as a witness on the trial of tliis indictment, and he being called and not appearing, on motion of E. W. A, Esq., Dis- trict Attorney, it is ordered that an attachment issue against the said E. F. 142 WEW CLERK'S ASSISTANT. § 283. Arraignment of a Party indicted, after reading Indictment Do you demand a trial on this indictment ? § 283. Taking Verdict on a Trial for Felony, or Murder. Gentlemen of the jury: Please answer to your names. [Ca^i them one by one^ Have you agreed upon your verdict ? [After the answer, say;] Jurors, look upon the Prisoner. Who shall say for you? [The foreman rises.'\ How say you; do you find the prisoner at the bar guilty of the- felony [and murder, if necessary^ whereof he stands indicted ; or not guilty? [The foreman answers: guilty; or, not guilty. Then the Clerk adds:'\ Hearken to your verdict, gentlemen, as the court has recorded it : You say, you find the prisoner at the bar guilty [or, not guilty] of the felony [and murder, if necessary^ whereof he stands indicted ; and so you say aU. § 284. Polling Jury in the Same. [Wlien the polling of the jury is demanded, the Olerk will begin with the first name on the panel.-l A. B., how do you find the priso- ner at the bar ; guilty or not guilty ? [ When the foreman has an- swered, call the next juror as follows :\ C. D., is that your verdict? [Then proceed in the same manner, through the whole panel, and when all have answered, say:^ Then, gentlemen of the jury, hearken to your verdict as the court has recorded it You say you find the prisoner at the bar* guilty of the felony [and murder, if necessary, J whereof he stands indicted, and so you say alL §285. Taking Verdict in other Criminal Cases. Gentlemen of the jury: Please answer to your names. [Call them one by one."] Have you agreed upon your verdict ? ~^fter * the answer, or affirmative assent, is given, say/] Who shall say for you? [The foreman rises.] How say you ; do you find the priso- ner at the bar guilty of the misdemeanor [or, assault and battery, and riot ; or, riot ; or, offence ; or, crime] whereof he stands indicted ; or not guilty? [The foreman answers: guilty; or, not guilty. Then the Clerk adds:] Hearken to your verdict, gentlemen, as the court has recorded it You say you find the prisoner at the bar guilty [or, not guilty] of the misdemeanor [or, assault and battery, and riot; or, riot; or, offence; or, crime] whereof he stands indicted* and so you say aU. CLERKS AND CRIERS. 143 § 286. FoUinff Jury in the Same. [Proceed as in § 284 to the *, and then add:} guilty of the mis- demeanor \or, assault and battery, and riot; or, riot; or, offence; or crime] whereof he stands indicted ; and so you say all. § 287. Taking Verdict in a Civil Cause^ Gentlemen of the jury ; Please answer to your names. [ Call them one hy one!\ Have you agreed upon your verdict ? * How doyoufind? [T he foreman states the finding of the jury ; the Clerk then enters the verdict, and continues i] Gentlemen, listen to your verdict as it stands recorded. You say you find, &c., \as the finding may Je;] and so you say aU. § 288. Eniry of Verdict. Supreme Court, A, B. 1 County of . At a Circuit Court held against > held in and for said county, on the day C. D. ) of , 18 , before J. M., Esquire, Justice. JURORS. [Insert names.} WITNESSES. [Insert nam^s.} Verdict for defendant, [or, verdict for plaintiff, damages $ ; or, verdict for plaintiff against defendant, C. D., damages $ and verdict for the defendant E. F. ; [or, if it be a special verdict, insert the same at length.}* E. B. C, Clerk. § 289. JSntry of Verdict, with Assessment of Value of Personal Property. . Supreme Court, A. B. ) County of, the *, and then add:} and the jury assess the C. D. ) value of the said [mention the property in ques- tion} at dollars : [If necessary, add: and they further assess the damages of the said defendant by occasion of the delivery and detention of the said property, at dollars.] E. B. C, Clerk. § 290. Entry of Judgmmt. Supreme Court, A. B. 1 Judgment, against > January 1, 1849. C. D. ) This cause being at issue upon the facts, and a trial by jury having been had, on which a verdict was found for the 144 NEW CLERK'S ASSISTANT. plainfi3', that, &c., [state tlie finding; or, if tliere was no jury, say. and the same having been submitted to the court, verdict was ren- dered, &c.] Now, on motion of G. H., attorney for the plaintiff, it is ordered and adjudged by the said court, that, &c., \as the verdict may 5«.] E. B. C, Clerk. § 291. Taking Verdict where Personal Property is in Question. Gentlemen of, &c., [as in § 287, to the *, atid then add/] How do you find? [The foreman answers: We find the title of the horse in question to be in the plaintiff, and assess the value thereof at one jiundred dollars. The Clerk enters the verdict, and then adds:] Gen- tlemen, listen to your verdict as it stands recorded. You say you find, &c., [as above;] and so you say aU. § 292. Taking Verdict in Actions for Damages, , Gentlemen of, &c., [as in § 287 to the *, and then add:^ How do you find? [The foreman answers: We &nd for the defendant; or. We find for the plaintiff one hundred dollars damages and six cents costs. The Clerk enters the verdict, and again repeats the finding, and tnakes the inquiry, as in § 287.] § 293. Taking Verdict in Cases of Imnacy, &c. Gentlemen of, &c., [as m § 287 to the *, arvd then- add:] How do you find? [The foreman answers: We find that A. B. is a lu- natic, of unsound mind, and incapable of managing or conducting his affairs ; or, that A. B. was of unsound mind, at the time of the exe- cution of the will, [or, deed,] in question, to wit: on the day. of ,18 , and incompetent to execute the same; or, that A. B. was of unsound mind, and incompetent to contract matrimony, at the time of the solemnization of the marriage to E. D., to wit: on the day of ,18 . After entering the verdict, the Clerk makes the inquiry, as in other eases/] § 294. Taking Verdict in Action for Recovery of Real Property Gentlemen of, &c., [as in § 287 to the *, and then add:] How do you find? [The foreman answers: We find the title of the land in question to be in the plaintiff; or, defendant: Ifihere is a claim for the mesne profits, add: and assess the damages for withholding the said premises, against the defendant, at dollars and six cents costs. The Clerk enters the. verdict, dtc., as in the preceding forms.'] CLERKS AND CEIEES. 145 § 295. PoUing Jury in Civil Actions. [Begin with the first naine on the panel, as in criminal actions.] A. B., you say you find [as the verdict may be: after the answer is given, then call the next juror^ C. D., is that your verdict ? [Proceed in this manner through the list, and when all have answered, say:] Then, gentlemen of the jiuy, hearken to your verdict, as the court has recorded it You say you find [as the verdict may 6e,] and so you say all. § 296. Certificate of Money paid into Court hy Sheriff. Supreme Coui-t, A. B. ) I herby certify, that A. R, Sheriff of the against > County of , has this day paid into court C. D. )■ in this action, the sum of dollars, to be applied pursuant to the statute. Dated the day of , 18 . E. B. C, Clerk of said County of § S97. Entry of Judgment on Submission. Supreme Court, A. B. ) Judgment, against > January 1, 1849. C. D. ) The above named parties, A. B. and C. D., having submitted the controversy between them without action, and a trial by the court being had thereon, the court decided [state the dedsiofu] Now, on motion of G. H., attorney of the said A. B., it is hereby adjudged, &c., [as tfie decision may bei\ E. B. C, Clerk of said County of § 298. Oo'afession of Judgment without Action.^ County ss: I, A. B., of the town of , in said county, hereby confess myself indebted to C. D., of the same place, [or, as the case may Je,l in the sum of , and authorize the said C. D , or his execu- tors, administrators, or assigns, to enter a judgment against me, in the Supreme Court of the State of New York, for that amount* The said sum of money is due on a promissory note, made by me, and dated the day of, 2 R S. (3d ed.) 22, %% 137, 138; 13 John- | 150 NEW CLERK'S ASSISTANT. granting, assigning, surrendering, or declaring, the same, or by. his lawful agent thereunto authorized by writing." 6. A contract for the sale of growing trefes, with the right to enter and remove them, must be reduced to writing, in order to be vaJid." 7. The term ' heirs,' or other words of inheritance, are not requi- site to create or convey an estate in fee ; and every grant of real . estate, or any interest therein, will pass all the estate or interest of the grantor, unless the intent t($ pass a less estate or interest appears, by express terms, or is necessarily implied in the terms of the grant' 8. No covenant can be imphed in any conveyance of real estate, whether isuch conveyance contain special covenants or not Deeds of bargain and sale, and' of lease and release, may continue to be used, and wiU be deemed grants, and, as such, subject to the provi- sions of law concerning grants.' 9. No greater estate or interest wUl be- construed to pass by any conveyance, than the grantor himself possessed at the delivery of the deed, or could then lawfully convey, except that every grant is con- clusive as against the grantor, and his heirs, claiming from him by descent; and also, as against subsequent purchasers from such grantor, or from his heirs, claiming as such, except a subsequent purchaser in good faith, and for a valuable conaderation.' 10. Every grant of lands will be absolutely void, if at the time of the deHvery thereof, such lands be in the actual possession erf a per- son claiming under a title adverse to that of the grantor ; except as against the grantor and his heirs. But every person having a just title to lands, of which there is an adverse possession, may execute a mortg-age on such lands ; and such mortgage, if duly recorded, will bind the lands from the time the possession thereof may be recovered, by the mortgagor or his representatives, and will have preference over subsequent mortgages, judgments, or other instruments.' 11. Where the grantor in a. deed has no title to the premises con- veyed, the covenants of seizure and power to convey, if inserted in the deed, are broken immediately upon its execution.' 12. A deed should be founded on a sufficient consideration, and executed by persons able to contract and be contracted with ; the subject matter must be set forth in sufficient words to describe the agreement, and bind the parties ; and it should be read by or to the grantor, previous to the execution, unless the reading is expressly waived. The consideration of a deed may be either good or valua- ble : it must not partake of any thing immoral, illegal, or fraudulent » 2 R. S. (3d ed.) 194, S 6; 6 Wendell,. 461 ; » 2 R. S. (3d ed.) 23, §5 143, 144. I Id., 436: 13 Id., 481; IB Id., 25, 28; 2 Hill, « 2 R. S. (3d ed.) 23, §§ 147, 148: 7 Wen- dell, 377; 9Id., 616; 15 id., 164 81 Id , 98; 3 10 485. a 1 Denio. 560. » 2 R. S. (3d ed.) 33, 5 1. 4 2 R. S. (3d ed.) 22, §§140, 142; 14 Wen- dell, 38; 8 Paige, 596 Hill, 526. ' 2 Barbour's S. C. Rep., 300. CONVEYANCES BY DEED AND MOETQAGE. 151 Every deed, or' contract, is void, when made for any fraudulent pur- pose, or in violation of law. A good consideration is founded upon natural love and affection between near relations by blood: a valua- ble consideration is founded on something deemed valuable, as money, goods, services, or marriage. An. equitable liability is sufficient to uphold an express covenant or promise.' 13. Where the consideration is expressed in a deed, any averment to the contrary cannot be made, although it may be inquired into, for all purpo^g, except to impeach the deed as between the parties ; nor will the validity of a deed depend on the amount of the conside- ratioa' 14. The rule in relation to the description of premises conveyed by metes and bounds is, that known and fixed monuments control courses and distances ; and the certainty of metes and bounds will include all the lands within them, though they vary from the quan- tity expressed in the deed Where natural and fixed objects are wanting, and the coui'se and distance cannot be reconciled^ the one or the other may be preferred, according to circumistances.' 15. In the construction of every instrument granting or convey- ing, or authorizing the creation or conveyance of, any estate or interest in lands, it is the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrimient, and is consistent with the rules of law. Mate- rial erasures or interlineations ia a deed, should always be noted before the execution.* 16. A quit-claim deed, purporting to convey one's " right of expec- tancy," or possibility of inheritance, will not aflfect the grantor's title as heir, subsequently acquired.' 17. When a deed is executed by an attorney, for several principals, one seal is sufficient, provided it appear that the seal affixed was intended to be adopted as the seal of aL° 18. An action will lie for fraudulent representations as to the terri- torial extent of right in real estate conveyed or leased' 19. Where land is conveyed by metes and bounds, if the descrip- tion contains positive lang-uage as to quantity, it is to be regarded as descriptive oidy, and not as a covenant of quantity.' 20. If a grantor has no title, his covenant of seizin is broken • im- mediately on the execution of his deed; but where there are cove- nants of warranty and quiet enjoyment only, there must be an eviction, before a recovery can be had' ' > 4 Kent's Commentaries, (2d ed.) 404; 2 R. S. (3d ed.) 193, s§ I, 2j 2HiJl, 659; 7 Id., !S3; 1 Denio, 520, « 1 Jollnson, 139; 4 Id., 23; 16 Id. 47; 4 Cow- en, 430; 9Ia..,69; 9 Wendell, 611; 16 ld.,460; Denio, 22b 2 Barbour's Ch. Rep., 232. >4 Kent's Qoipipentanea (2d.ed.} 466; 3 Barbour's S. C. Rep., 2rs. * 2 a. S. (3d ed.) 33, 52; 2 Barbour's S. C Rep. 229: I Comstock, 96. » 2 Hill, 641. i Hill, 351. ^ 1 Coinsiock, 305. » 3 Barbour's S. C. Rep., 353. • 1 Comstock, 509. 152 KEW CLERK'S ASSISTANT. 21. No mortgage wiH be construed as implying a covenant foi the payment of the sum uitended to be secured ; and where there is no express covenant for such payment contained in the mortgage, and no bond or other separate instrument given, the remedies of the mortgagee will be confined to the lands mentioned in the mortgage.' 22. The wife of a grantor, or mortgagor, must unite with her husband in a conveyance, in order to release her right of dower, except in the case of a mortgage for the purchase money. A deed conveying any interest of a married woman in lands,, except her separate estate, or unless under her power, must be executed by herself and husband : but a married woman who is an infant, can- not bind herself by deed so as to bar her right of dower." 23. Where, upon the sale and purchase of land, a deed is executed by the vendor, and a mortgage given by the purchaser, and both are acknowledged and recorded at the same time, it wiU be presumed that the mortgage was given to secure the purchase money, though the same be executed to a third person, instead of the vendor, by direction of the latter.' 24. Where it is evidently the intention of the parties to a paper that the same shall be regarded as a mortgage, no form of words win defeat such intention.* 25. A mortgage is a hen, or security for a debt, but does not ^ve dtle in, or to, real estate ; and the interest of the mortgagee is a mere chattel interest.' 26. A mortgage conditioned for support and maintenance is good.' 27. If a deed be given, and the purchaser execute a mortgage, the presumption will be that they were executed at the same time, ;md the vendee wiU acquire only the equity of redemption.' 28. Where lands are mortgaged, and a part thereof subsequently sold by the mortgagee, the part remaining unsold is the primary fund for the payment of the debt, and if different parcels are sold, they are to be charged with the debt in the inverse order of aliena- tion.' 29. A release of a part of mortgaged premises does not impair or destroy the hen as to the residue between the original parties.' 30. The mere recording of an assignment of a mortgage is not such a notice to the mortgagor as will invalidate a payment made by him, subsequent to the assignment, to the assignor.'" 31. A mortgage discharged of record, without actual satisfaction, in consequence of fraudulent representations by the mortgagor, may be revived." '2R. S. (3d C(I,,) 22, § 139. a 1 Barbour's S. C. Rep., 399; 4 Id., 407; Id, 646. » 1 Barbour's S. C. Rop., 399. « 2 Barbour's S. C. Rep., 28. > 3 Denio, 232; 2 Barbour's Ch. Rep., 119; 3 Bar1)aiir's S. C. Rap., 305. • 2 Oomstock, 360. ' 3 Barbour's S. C. Kep., 128. B 2 Comstock, 289. 9 3 Barbour's S. C. Eep., 128. in 2 Barbour's Ch. Rep., 82. " 1 Barbour's S. O. Rep., 393. CONVEYANCES BY DEED AND MORTGAGE. 153 32. A certificate of the sale of real estate on an execution, must contain : a particular description of the premises sold ; the price bid for each distinct lot, or parcel ; the whole consideration money paid ; and the time when such sale will become absolute, and the purchaser be entitled to a conveyance, pursuant to law. " The deed is to be executed by the officer making the sale.' 33. Two witnesses are required at the execution of a deed, in New Hampshire, Vermont, Rhode Island, Connecticut, Pennsylvania, Georgia, Ohio, Indiana, Illinois, Michigan, and Wisconsin. In Dela- ware, Tennessee, and North Carolina, two witnesses are required where a deed is to be proved by witnesses. In the other States, one witness is sufficient to render a deed valid, as between the parties. In this State, proof of the execution of a deed by one witness, or its acknowledgment before the proper officer, wiU entitle it to be recorded. 34. Mortgages of real estate may be foreclosed by advertisement, by the party holding the same, in person, where default has been made in any condition of such mortgage, and no other legal proceed- ings are then pending thereupon.' 35. In order to foreclose a mortgage, a notice, specifying the names of the mortgagor and mortgagee, and assignee, if any ; the date of the mortgage, and where recorded; the amount claimed to be due at the time of the fii-st jpublication of the notice ; and a des- cription of the mortgaged premises, conforming substantially with that contained in the mortgage ; must be published for twelve weeks, successively, at least once in each week, in a newspaper printed in the county where the premises to be sold are situated; or, if they are atuated in two or more counties, in either of them.' 36. A copy of the notice of foreclosure must be affixed, at least twelve weeks prior to the time designated for the sale, on the out-- ward door of the building where the county courts are directed to be held, in the county where the premises are situated^ or, if there are two or more such buildings, on the outward door of that one nearest the premises. A copy of such notice must also be served, at least fourteen days prior to the time specified therein for the sale, on the mortgagor or his personal representatives, and on the subsequent grantees and mortgagees whose conveyances or mortgages were on record at the time of the first publication of the notice, and on all persons having a lien, by judgment or decree, on the mortgaged premises, subsequent to such mortgage ; such service may be made personally, or by leaving the notice at the dwelling-house of the person tcr be served, in charge of some one of suitable age, or by depositing a copy of such notice, at least twenty-eight days prior to 1 2 R. S. (33 ed.) 457, § 44; 20 Wendell, | J2 E. 8. {8d ed.) 632, §§ 1, 2; T Wendell, 416; 7 Hill, 476, 616. 468: 4 Paige, 5S; 7 Id., 2S7. I > 3 B. B. (8d ed.) 632, 8 ; $§ 8, 4; 1 Hill, 10. 154 NEW CLEEK'S ASSISTANT. the time specified therein for the sale, in the post office, properly folded and directed to said person at his place of residence." 37. The sale of the mortgaged premises may be postponed from time to time, by inserting a notice thereof as soon as practicable, in the newspaper in -which the original advertisement was published, and continuing such insertion imtil the time to which the sale was postponed." SB. The sale must be made at public auction, in the day time, in the county where the mortgaged premises, or some part of them, are situated. If the premises consist of distinct farms or lots, they must be sold separately ; and no more can be sold than will be suf- ficient to pay the amount due on the mortgage at the time of the first publication of the notice, with interest, and the costs and ex- penses allowed by law. The mortgagee, his assigns, or his or their legal representatives, may, fairly and . in good faith, purchase the premises, or any part of them, at the sale.' 39. A sale of mortgaged premises, in pursuance of the foregoing directions, wiU be a bar of all claim or equity of redemption of the mortgagor, or his representatives, or of any person claiming under him or them, by virtue of a title subsequent to the mortgage fore- closed ; and also, of any person having a lien on the premises, or any part thereof, by or under any judgment or decree, subsequent to such mortgage, who has been served 'with a copy of the notice of sale.* 40. An affidavit of the facts and circumstances of the sale must be made by the person who officiated as auctioneer ; an affidavit of the publication of the notice, by the printer of the newspaper in wliich the same was inserted, or his foreman ; and an affidavit of •affixing the notice, and, also, an affidavit of serving the same, by the person, or persons, performing such duty ; which affidavits may be taken by any judge of a court of record, supreme court commis- sioner, or commissioner of deeds, and may be filed and recorded in the clerk's office of the county in which the sale took place. Such affidavits will constitute the evidence of the sale, and foreclosure of the equity of redemption, without any conveyance; although it is better for the purchaser, when not a mortgagee or^signee, to take a deed, with the usual covenants of warranty, &c., of such mort- gagee, or assignee, where there is the least possible doubt m regard to the title.' 41. The purchaser of lands, on foreclosure and sale under a mort- gage, is entitled to the growing crops sown by the mortgagor.' ■ 2 R. •?. {3d ed.,) 632, § 3; Lawa of 1842, chap. 2! / : Laws of 1844, chap. 346. > 2 R. S. (3d ed.,) 633, ^ 6 ; 4 Denio, 104. 8 2 R. S. (3d ed.,) 633, §S 6, 7 ; 4 Gowen, 86f; 1 Paige, 52. < 2 R. S. (3d ed.,) 633, 58; 10 Johnson, l85; 4 Paige, 58, 531 : 1 Hill, 107 ; fi Id., 65 1.2 R. S. (3d ed.,) 634, §§ 9-14 j 4 Denio, 41, ' 2 Denio, 174. OOlfTEYANCES BY DEED AND MORTGAGK 155 FORMS. § 308. Simple Deed. This indenture, made the day of , in the year of our Lord one thousand eight hundred and , between A. B., of, &C., of the first part, and C. D., of &c., of the second part, witness- eth : That the said party of tlie first part, for and in consideration of tiie sum of dollars, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, haCh bargained and sold, and by these presents doth bargain and sell, unto the said party of the second part, and to his heirs and assigns, forever, all, &c., \here describe the premises ;] together with all and singular the hereditaments and appurtenances thereunto belonging, or in any wise appertaining ; and the reversion and reversions, re- mainder and remainders, rents, issues and profits, thereof; and also all the estate, right, title, interest, claim, or demand whatsoever, of him, the said party of the first part, either in law or equity, of, in and to, the above bargained premises, and every part and parcel thereof:* In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first above written. Sealed and delivered, ) in presence of f G. H. A. B. [l. s.] § 309. Quit-Claim Deed. Know all men by these presents : That we, A. B., of, &c., and E. his wife, in consideration of the sum of , to us in hand paid by C. D., of, &c., the receipt whereof we do hereby acknowledge, have bargained, sold and quit-claimed, and by these presents do bargain, sell and quit-claim, unto the said C. D., and to his heirs and assigns, forever, all our and each of our right, title, interest, estate, claim and demand, both at law and in equity, and as well in possession as in expectancy, of, in and to, all that certain piece or parcel of land, situ- ate, &c., [description /] with all and singular the hereditaments and appurtenances thereunto belonging. %^ In witness whereof, we have hereunto set our hands and seals, the day and year i " rabove written. Sealed, &c., f^'W § 308.] A. B. [l. s.] E. B. [L. S.J J 56 KEW CLERK'S ASSISTANT. § 310. Quit- Claim, with Covetiant against Acts of Grantor. This indenture, made the day of , in the year one thousand eight hundred and , between A. B., of, &c., of the first part, and G. D., of, ■ President of the Bank of G. H. ) § 317. Deed of Mortgaged Premises, on Foreclosure hy Advertisement. This indenture, made the day of , in the year of oui- Lord one thousand eight hundred and , between C. D., of, (fee, of the first part, and E. F., of, &c., of the second part: Whereas, A. B., by a certain indenture of mortgage, bearing date the day of , one thousand eight hundred and , for the consideration of the sum of dollars, did bargain, sell and con- vey, unto C. D., his heirs and assigns, forever, all that certain piece or parcel of land, hereinafter particularly described, with the appur- tenances, subject to a proviso, in the said indenture of mortgage contained, that the same should be void on the payment, by the said C. D., liis heirs, executors, administrators, or assigns, of the sum of dollars, in the manner particularly, specified m the condition of a certain bond or obhgation, bearing even date with the said inden- ture of mortgage : with a special power in the said indenture of mort- gage contained, authorizing the said C. D., his heirs, executors, administrators, or assigns, if default should be made in the payment of the said sum of money mentioned in the condition of the said bond or obhgation, with the interest, or of any part thereof to sell and dispose of the mortgaged premises, or any part thereof, at pubUc auction ; and to make and deliver to the purchaser, or purchasers, thereof, good and sufiicient deed, or deeds, of conveyance in the law, for the same, in fee simple : And, whereas, the said indenture of mort- gage has been duly recorded according to law, as by the said indenture of mortgage, and the record thereof, and of the power therein contain- ed, reference being thereunto had, may more fully and ^t large ap- pear: \Jf necessary, say: and the same hath been duly assigned to the party of the first part, by the said C. D., as by the record of the said assignment, &o., as aJove;] And whereas, default having been made in the payment of the money intended to be secured by the said indenture of mortgage, the mortgaged premises hereinafter par- ticularly described, were, on the day of , one thousand eight hundred and , sold at pubhc auction, to the said party of the second part, for the sum of dollars, being the highest sum bid for the same, public notice having been previously.given of such sale, by advertisement, inserted and pubUshed for twelve weeks, once in each week, successively, in a pumic newspaper, entitled the , printed in the town of , in the county in which the mortgaged f ^l3^:^l,-itft^^Z,-,-C<-<7 fr/ ...^.^^^.i^^IT— y^^'-'^-y V ^i^^^^ ^"^^pft fUM h^ ^' ''- 'ir^"'5-'^ ?t^-^^ v^t-, l/\K^ hAyXJ- j''-^'^ '7 ^ T <^w^.=sL-V^ CONVETAKCES BY DEED AND MORTGAGE. 161 premises are situated, a copy of which advertisement was, for twelve weeks prior to the time therein speciiied for such sale, duly afiSxed on the outward door of the court house in the town of , being the buildipg in which the county courts are directed to be held; and the said Tpaictj of the first part, having caused a copy of. said printed notice, or advertisement, to be duly served on all persons having any claim upon the said premises, as required by the act passed May 7th, 1844. Now, therefore, this indenture witnesseth : that the*party of the first part, for and in consideration of the sum so bid, as aforesaid, to liim in hand paid by the said party of the second part, at the time of the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath gTanted, bargained, sold, aliened, re- leased and confirmed, and by these presents doth grant, bargain, sell, alien, release and confirm, unto the said party of the second part, and to his heirs and assigns, forever, all [description ;'\ together with aU and singular, the tenements, hereditaments, and appurtenances, thereunto belonging, or in any wise appertaining, as the same is des- cribed and conveyed, in and by the said indenture of mortgage ; and also, all the estate, right, title, interest, property, claim and demand, whatsoever, both in law and equity, of the said A. B., as well as of the said party of the first part, of, in and to, the above described premises, with the appurtenances, as fuUy, to all intents and purposes, .as the said party of the first part hath power and authority to grant and sell the same, by virtue of the said indenture of mortgage, and of the statute in such case made and provided, or otherwise : To have and to hold the said above mentioned and described premises, with, their and every of their appurtenances, unto the said party of the second paii^ his heirs and assigns, to the sole and only proper use, benefit and behoof, of the said party of the second part, his heu-s and assigns, forever. In witness, (fee, [as in § 308.] § 318. Deed by Guardian. To all persons to whom these presents shall come : E. F., of , guardian of C. B. and E. B., minors, and children of A. B., late of said , deceased, sends greeting : Whereas, by an order of the Probate Court, holden at , within and for the county of , on the day of , in the year , the said E. F., in his capacity of guardian, as aforesaid, was empowered and licensed to make sale of the whole of the said minors' interest, being one undivided twelfth part each, in the real estate hereinafter de- scribed ; and whereas, the said E. F. having given the bond, and taken the oath by law requu-ed, before fixing on the time and place of sale, and also given public notice of the said sale, by causing a no- tification thereof to be inserted and printed weeks, successively in the newspaper called ,- printed at , did, the H 162 KEW CLERK'S ASSISTANT.- day of , in the year , cause the said minors' interest to be. exposed for sale, pursuant to the said notice, at public vendue, on the , premises, and the same was then and there struck off to S. T., of, &c., . for the sum of dollars, he being the highest bidder therefor: Now, know, ye that I, the said E. F., in my capacity of guardian, as aforesaid, by virtue of the license aforesaid, and in consideration of the sum of dollars, to me paid by 8. T., aforesaid, (the receipt whereof *L hereby acknowledge,) do hereby grant, bargain, sell and convey, unto the said S. T., his heirs and assig-ns, two undivided twelfth parts of a certain tract or parcel of land, situate in , bounded and described as follows, viz : [description,'] being the shares of the said minors therein, with all the prinleges and appurtenances thereunto belonging: To have and to hold the above granted pre- mises, to him, the said S. T., his heirs and assig-ns forever. And I, the said E. F., for myself, my executors and administrators, do cove- nant with the said S. T., his heh's and assig-ns, that in making the said sale, I have in all things observed the rules arid directions of the law; and that I wiU, and my heirs shall, warrant and defend the above granted premises to the said S. T., his heirs and assigns, against the lawful claims and demands of the said minors and their heirs, and all persons claiming the same by, through, or- under them, or either of them. In testimony whereof, I, the said E. F., have, &c., [as in §311.J § 319. Deed by Administrator, Empowered to sell by Surrogate. To all to whom these presents shall come : I, A. B., of , in the county of , in the State of , administrator of the goods' and estate which were of C. D., late of , 18 , at the town of , in said county of , expose to sale at public auction, all and singular the said premises, with the appurtenances ; at which sale the said premises, [or, a part of the said premises,] as foUovrs, viz : all [description,'] were sold to the said party of the second, part, for the sum of dollars, that being the .highest sum bid for the same : And " ^ ereas, the proceed- ings of the said commissioners in the premises wire duly reported to the said court, and the sale approved and confirmed, on the day of , one thousand eight hundred and , , as by the records of the said court more f«Jly appeai-s ; and the said commissioners CONVEYAKCES BY DEED.AKD IIOETGAGE. 165 ■were thereupon, by the said court, directed to execute to the SEiid party of the second part, a conveyance of said premises, pursuant to the sale so made as aforesaid. Now this indenture witnesseth : that the said parties of the first part, pursuant to the direction and authority to them given, and for and in consideration of the sum of money so bid as aforesaid, to them in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have bargained, sold, aliened, conveyed and confirmed, and by these presents do bar- gain, sell, alien, convey and. confirm, imto the said party of the second part, all the estate, right, title, interest, claim and demand, of the said parties of the first part, and also all the right, title, interest, claim and demand, of all and singular, the several and respective parties to the proceedings in partition aforesaid, of, in and to, all and singular the said premises above particularly described as purchased by. the said party of the second part ; together with all and singular the hereditamente and appurtenances, to the same belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and of every part thereof: To have and to hold the said above bargained premises, with the ap- purtenances, and every part thereof, unto the said party of the second part, his heirs and assigns, to his and their only proper iise ^nd behoof forever, in as full and ample a manner, as the said parties of the first part ought to do, pursuant to the statute and the authority as aforesaid. In witness whereof, the said parties have hereunto interchangeably set their hands and seals, the day and year first above writtea Sealed and delivered, ) . ^ .- -. in presence of > G.H. ) A. B. L. S. C. D. L. S.] E. F. "l. b.' L.M. L. S.' § 322. Deed with Trust Habendum, Clause. This indenture, made, &c., [as in § 303, or § SjLg, to the *, and then a 18 , by order of J. P. H., Esquire, aforesaid, we, the said A. B., C. D. and E. P., were duly appointed Trustees of the estate of the said G. H., and for all his creditors, with such powers concerning the estate, real and personal, of the said G. H., as are given by statute in case of an absconding debtor : and we did on that day each of us take the oath required by statute, foi- the faithful discharge of the trust reposed in us as Trus- tees, and cause notice of our appointment to be published, according to law: and whereas, we, the said A. B., C. D. and E. F., having given public notice of the intended sale, by causing notice thereof to- be printed and inserted two weeks, successively, in the , a newspaper printed in the said county of , and having caused- notice of the same to be posted up in four public places in said county, we did, on the day of , 18 , pursuant to the issuing of said attachment, the appointment and notice aforesaid, sell by public auction, the real' estate of the said G. H., hereinafter de- scribed, to L. M., of _ , for the sum of dollars ; he being the highest bidder therefor, and that being the highest sum bid for the same. Now, therefore, know ye, that we, the said A. B., C. D. and E. F., by virtue of the power and authority in us vested, as aforesaid, and in consideration of the aforesaid sum of * dollars to us paid by the said L. M., the receipt whereof is hereby acknowledged, do, hereby grant, bargain, sell and convey, unto the said L. M., his heirs and assigns, all the interest which the said G. H. had on the day of , 18 , [insert the day on which the attachment issued,'\ to all that certain piece or parcel of land, &c., [describe the premises ■]' To have and to hold the above granted and described premises to the said L. M., his heirs and assigns, forever. In testimony whereof, &c., [as in § 320.] CONVEYANCES BY .DEED AND MORTGAGE. 167 § 3^4. Sheriff's Certificate of the Sale of Real Estate, on an , Execution. Supreme Court, A. B. ) -t -A.- P-, Sheriff of the county of , do ' against > hereby certify, that by xirtue of an execution in the _ E. D. ) above cause, tested the day of , in the year , by which I was commanded to make, of the goods and chattels of E. D., in my bailiwick, dollars, which A. B. had recovered against him in the said court, for his damages, which he had sustained, as well by reason of the not performiag certain pro- mises, [or, for the detention of a certain debt; or, as the cause of action may 6«,] as for his costs and charges; and if suflBcient goods and chattels could not be found, that then I should cause the said damages to be made of the real estate which the said E. D. had, on the day of , in the year , or at any time after- wards, in whose hands soever the same might be ; as by the said writ of execution, reference being thereunto had, more fully appears: I have levied on, and this day sold, at public auction, according to the statute in such case made and provided, to E. F., who was the highest bidder, for the sum of dollars, which was the whole consideration of such sale,' the real estate described as follows, to .wit: all [description ■i\ And that the sale will become absolute at the expiration of fifteen calendar months from this day, to wit, on the day of , A. D. 18 , and E. F., or his assigns, be en- titled to a conveyance, pursuant to law, unless the said lands shall be redeemed. Given under my hand, this first day of ,18 A. P., Sheriff of the County of § 325. Affidavit to Entitle a Creditor to Redeem, to be Endorsed on a Certified Copy of the Docket of his Jvdgmsnt State of New York, \ . County, [ L. M„ \or, S. T., attorney, or, agent, of L. M.,] a judgment credi- tor of C. D., named in the copy of the docket of judgment hereunto annexed, being duly sworn, says, that the true sum due on said judg- ment, at the time of claiming the right to acquire the title of E. R; the original' purchaser at the Sheriff's sale of the real estate of C. D., is dollars and cents. Sworn to, this day of , ^ ' L. M. A D. 18 , before me, \ G. H., Justice of the Peace. 168 NEW CLERK'S ASSISTANT. § 326. Sheriff's Deed, where Land is Sold imder an Execution This indenture, made, &c., between A. P., Esqvure, Sheriff, [or, late Sheriff,] of the county of , of the first part, and E. F., oft &c., of the second part : Whereas, by virtue of a certain execution issued out of and under the seal of the Supreme Court of the State* of New York, tested the day of , in the year 18 , at the suit of A. B., plaintiff, against C. D., defendant, directed and de- livered to the said Sheriff, commanding him that of the goods and chattels of the said defendant, he shoiild cause to be made certain moneys, in the said writ specified, and if sufficient goods and chat- tels could not be found, that then he should cause the amount so specified to be made of the real estate which the said defendant had on a day in the said writ mentioned, or at any time afterwards, in whose hands soever the same might be, the said Sheriff did levy on and seize, aU the estate, right, title and interest, which the said de- fendant so had, of, in and to, the premises hereinafter conveyed and described ; and on the day of , one thousand eight hun- dred and , sold the said premises at public vendue, at the house of , in the town of , in the said county ; having first given public notice of the time and place of such sale, by advertis- ing the same according to law ; at which sale the said premises were struck off to E. F., for the sum of dollars, he being the highest bidder, and that being the highest sum bidden for the same.* And whereas, the said premises, after the expiration of fifteen months from the time of said sale, remained unredeemed, and no creditor of the said C. D. hath acquired the right and title of the said pm-chaser, according to the statute in such case made and provided.* \_If the deed is given to a redeeming creditor, substitute the name of such cre- ditor for E. F., as aforesaid, and instead of the words between the two *s, say: And whereas, the said premises, after the expiration of one year from the time of said sale, remained unredeemed, by any person entitled to make such redemption within that time ; and where- as, K M., a creditor of the said C. D., having in his own name [or, as assignee; or, representative; or, trustee] a judgment in the Su- preme Court, &c., against the said C. D., for the sum of dol- lars, in an action of , rendered before the expiration of fifteen months from the time of such sale, and which ts a lien and ch'aa-ge on the premises so sold, hath acquired all the rights of th^ said E. F., the original purchaser to said premises, within the time, and in the manner and form prescribed by the^ statute in such case made and provided; and no other creditor of the said C. D. hath acquired the said rights from or against the said E. F.] Now this indenture wit- ncsseth: that the said party of the first. part, by virtue of the said writ, and m pursuance of the act in such case made and provided, and in consideration of the sum of money so bidden as aforesaid, to lum duly paid, hath sold, and by these presents doth grant and con- COlIYETAlfCES BY DEED AND MORTGAGE. 169 vey, unto the said party of the second part, all the estate, right, title and interest, which the said defendant had on the said day of , one thousand eight hundred and , or at any time afterwards, of, in and to, all [description :'\ To have and to hold the said above mentioned premises, unto the said party of the second part, his heirs and assigns, forever, as fully and absolutely as the said party of the first part, as Sheriff, aforesaid, can, or ought to, by virtue of the said writ and the law relating thereto. In witness whereof, the said Sheriff has, &c., [as in § 308.] § 327. Sheriff's Deed in Partition, where Sale is Otdered} This indenture, made, &c., between A. P., Esquire, Sheriff of the eounty of , in the State of New York, of the first part, and 0. D., of, (fee, of the second part : Whereas, in and by a certain de- cree, made at a County Court held at the town of , in and for said county, before J. P. H., Esquire, County Judge, on the day of , one thousand eight hundred and , in a certain cause there pending in the said court, between E. B., complainant, and A. B., C. B., and D. B., defendants, it was, among other things, ordered, adjudged and decreed,* that the said Sheriff do sell, in such separate parcels as he shall deem most for the benefit of the said parties, according to the rules and practice of the said court, and according to the statute in such case made and provided, all and sing-ular the several pieces or parcels of land and premises therein mentioned, whereof partition is sought by the complainant's bill of complaint filed in the above cause, at public auction, at the town of , in the said county of , after giving six week's previous notice of the time. and place of such sale, in one of the public newspapers published in the said county of , and in such other manner as required by law, that the said Sheriff, after such sale, make report thereof to the said court; and after such re- port of sale shall have been duly confirmed, and the said decree shall have been enrolled, that the said Sheriff execute and deliver deeds of conveyance for the said premises, in fee simple, to the purchasers thereof, at the said sale ; and whereas, the said Sheriff, in pursuance of said decree, and having given due notice of the time and place of sale, agreeably to the said decree, did, on the day of , A. D. 18 , sell at public auction, at the town of , afore- said, the premises in the said decree mentioned; at which sale, the prennises. hereinafter described, were struck off and sold, to the said party of the second part, for the sum of dollars, that being the highest sum bidden for the same; and such sale having been reported by the said Sheriff to the said court, and duly confirmed. 1 Sheriffs may sell any lands in their res- Sectire counties, ordered to be sold by a ecree of any court of record, and give con- reyances thereof, in the aame manner, and witti like effect, as was formerly done by a H Master in Chancery. (Laws of 1847, chap. 280, an. VI.,. § 77.) The Sheriff receives his disbursements for printing, and fees for selling. See, chapter XVIII. -■^O NEW CLERK'S ASSISTANT. and the said decree having been also enrolled : Now this indenture witnesseth : that the said Sheriff, in order to carry into eflFect the sale so made by him, as aforesaid, in pm-suance of the said decree of t.he said court, and in conformity to the statute in such case made and provided, and also in consideration of the premises, and of the said sum of money so bidden, as aforesaid, heing first duly paid to him by the said party of the second part, the receipt whereof is hereby ack- nowledged, hath granted, bargained, sold and conveyed, and by these presente doth grant, bargain, sell and conYcy, unto the said party of the second part, his heirs and assigns, forever, all [description/] To have and t» hold all and sing-ular the premises above mentioned and described, and hereby conveyed, or intended to be, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit and behoof, forever. In witness whereof, the said Sheriff has, &o., [as in § 308.] § 328. Sfteriff's Deed on Foreclosure. This indenture, &c. : [as in% 327 to the *, and then add:] That all and singular the mortgaged premises mentioned in the com- plaint in said cause, and in said decree described, or so much thereof as might be sufficient to raise the amount due to the complainant, for principal, interest, and costs, in said cause, and which might be sold separately, without material injury to the parties interested, be sold at public auction, according to the course and practice of this court, and under the direction of the said Sheriff, party of the first part; that the said sale be made on the day of , then next, at o'clock in the forenoon of that day, at the court house in the town of , in the county of , aforesaid ; that the said Sheriflf give public notice of the time and place of such sale, accord- ing to the course and practice of said court, and that any of the par- ties in said cause might become a purchaser, or purchasers, on such sale ; that the said Sheriflf execute to the purchaser, or purchasers, of the said mortgaged premises, or such part or parts thereof as should be sold, a good and sufficient deed, or deeds, of conveyance, for the same ; and whereas the said Sheriff, in pursuance of the order and decree of the said court, did, on the said day of , A. D. 18 , sell at public auction, at the court house in the town of , aforesaid, the premises in the said order mentioned, due notice of the time and place of such sale beiag first given, agreeably tp the said order ; at which sale, the premises hereinafter described were struck off to the said party of the second part, for the sum of dollars, that being the highest sum bidden for the same. "Now this indenture witnesseth: [as in "§ 327 to the end.] CONVEYANCES BY DEED AND MORTGAGE. IT I § 329. Deed of Bight of Way. This indenture, made, &c., between A. B., of, &c., of the fii-sv part, and C. D., of, &c., of the second part : Whereas the said party of the second part hath this day gi-anted, sold, and conveyed unto the said party of the first part, his heirs and assigns, by warranty deed, executed by the party of the second part to the party of the first part, and bearing even date herewith, a certain piece or parcel of land, described in said deed, as follows, to wit: all [description:^ And whereas the said party of the second part is still owned and possessed of certain lands lying in the rear of the above described premises : Now, therefore, this indenture witnesseth : that the said party of the first part, in consideration* of the gTant, sale, and conveyance, as aforesaid, and* of the sum of dollars, to him in hand paid by the said party of the second part, the receipt whereof is hereby ack- nowledged, doth hereby grant, bargain, sell, and confirm, unto the said party of the second part, and to his heirs and assigns, forever, a right of way in and over a certain strip of land on the easi side of the dwelling house on the above described premises, conveyed to the party of the first part, as aforesaid, for the said party of the second part, his heirs and assigns, and his and their servants and tenants, at all times freely to pass and repass, on foot, or with horses, oxen, cat- tle, beasts of burden, wagons, carts, sleighs, or other vehicle or car- riage whatsoever, from the highway to the lands of the said party of the second part, as aforesaid, and from the said lands of the party of the second part to the highway, as aforesaid, the said certain strip of land being of the width of two rods, and running from the south boundary of the premises above conveyed to the party of the first part, to the said lands belonging to the party of the second part, situate in the rear thereof, and the said way is, and shall be, forever, of the dimensions of the said strip of land, as aforesaid: To have and to hold the said easement and privilege to the said party of the second part, his heirs and assigns, forever, as appurtenances belonging to bis and their lands, as aforesaid. \^If necessary, insert covenants of seizin, warranty, cfec] In witness, &c., [as in § 308.] ' § 330. Deed of a Water Course. This indenture, made, m the date thereof, wiiL ase ; and if the amount of the said note, principal and interest, siiafl be paid at maturity, then these presents shall become void, and the es- tate hereby granted shall cease and utterly determine; bat if default CONVEYANCES BY DEED AND MOETGAGK 181 shall be made in the payment of the said sum of money, or the in- terest, or of any part thereof, at the time herein before specified for the payment thereof, the said party of the first part, in such case, doth hereby authorize, and fully empower the said party of the second part, his heirs, executors, administrators and assigns, to sell the said hereby granted premises at public auction, and convey the same to the purchaser, in fee simple, agreeably to the act in such case made and provided, and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said note, together with all costs and charges, and pay the over- plus (if any) to the said party of the first part, his heirs, executors, administrators, or assigns. In witness, that the said C. D. purchased the said premises fairly and in good faith, as he verily believes. G. H. Sworn, &c., [as in § 349.] 1 The party foreclosing the mortgage may [ the form of a deed on the sale of moitgaged act as auctioneer, if he chooses to do sn. For [ premises, see § 317, ante. CONTEZAlirCES BT DEED AND MORTGAGE. 187 § 353. Notice to accompany Copy of Notice of Sale served on Par- ties having any lAen or Incumbrance on the Mortgaged Premises. Sir : Take notice, ttat the above is a copy of a notice that the mortgage therein mentioned will be foreclosed by a sale of the mortgaged premises, pursuant to the statute in such case made and provided, at the time and place therein specified. Dated , the day of ,18 C. D., Mortgagor, [or, Assignee.] CHAPTER Xin. COEONEES. PRACTICAL REMARKS. 1. One Coroner in the city and county of New York, and four Coroners in each of the other counties in the State, are chosen at general elections held therein, to serve for three years.' 2. Whenever the Sheriff of a county is a party to a suit, all pro- cess in such suit, except when otherwise provided by law, must be executed by the Coroner, who has the same authority, and is subject to the same provisions and liabilities, prescribed in respect to Sheriffs in similar cases. If the Sheriff, on being arrested by a Coroner, re- fuses or neglects to ^ve bail ; or if he is arrested on an execution against the body, or on attachment; the Coroner is required to con- fine him in some house within the liberties of the jail of the county; which house thereupon becomes the jail of the county, for the use of the Coroner, and the latter is liable for any escape, and may take bonds for the liberties, in the same manner as the Sheriff in other cases." 3. Where the Coroner arrests a person, at the suit of the Sheriff, he may confine the prisoner in the common jail of the coimty, but he will not be liable for any escape therefrom. The bond for the liber- ties, in such cases, must be given to the Coroner, who then becomes liable for the escape of the prisoner.' 4. Whenever a Coroner receives notice that any person has been slain, or has suddenly died, or has been dangerously wounded, it is his duty to go to the place where such person shall be, and forthwith summon not less than nine, nor more than fifteen persons, qualified by law to serve as jurors, and not exempt from such service, to ap- pear before him forthwith, at such place as he shall appoint, to make inquisition concerning such death or wounding. Whenever ax, or » Amended Constiiution of New York, I > 2 R. S. (3d ed.,) 638, 639, 55 109-116 C3d ed.0 539, 610, {§ 117-120. Alt z., i 1 i Laws of 1S47, chan. aiO. Id., Hil, 5 67. » 2 R. S. C3 COEONEES- 189 more, of the jmy appear, they are to be sworn by the Coroner. He has the power to issue subpoenas for witnesses, returnable forthwith, or at such time and place as he shall appoint; and it is his duty to cause some surgeon, or physician, to be subpoenaed to appear as a witness on the inquest Witnesses duly subpoenaed are liable to the same penalties, and their attendance may be enforced in the same manner, as in Justices' courts.' 6. The jury, upon the inspection of the person dead or wounded, and after hearing thp testimony, are to deliver to the Coroner their inquisition in writing, signed by them ; in which they must state all the circumstances attending such death or wounding, and who were g-uilty thereof, either as principal or accessory, and in what manner. If the jury find that any murder, manslaughter, or assault, has been committed, the Coroner is required to bind over the witnesses to ap- pear at the next criminal court to be held in the county, at which an indictment can be found ; and he has the power to issue process for the apprehension of persons charged with any such offences, and to examine them, in the same manner as Justices of the Peace. The testimony of all witnesses examined before a Coroner, is to be re- duced to writing, and returned by him, with the inquisition, and all recognizances and examinations taken by him, to the next criminal court of record held in the county." 6. In case of the absence, or inabiUty to attend, from sickness or any other cause, of the Coroner of the city and county of New York, any Alderman, or special Justice, of the city, may perform any duty appertaining to the office of such Coroner, in regard to the holding of inquests.' 7. No Coroner can hold an inquest in any state prison, upon the body of any deceased convict, unless requested so to do by the agent, physician, or chaplain of the prison ; or by any of the state prison inspectors. It is the duty of every agent, however, to call a Coroner, in all cases of the death of a convict other than from ordinary sick- ness.* 8. The Coroners of the several counties of this State are required to deUver over to the respective County Treasures, aU moneys, or other valuable things, found with or upon the bodies of deceased persons ; or when inquests are held, if the same be unclaimed by the legal representatives of such person or persons, within sixty days after holding such inquest Before auditing and allowing the ac- counts of the Coroners., the Supervisors of the county are to require from them respectively, a statement in writing, verified by oath, or aflSrmation, of all money or other valuable things, found, as afore- said, and of the disposition of the same.' 1 2R. S. (3ded.) 827, 5§ 1—1; Laws of 1847, chap. 118. s 2 R. S. (3d ed.) 827, 828, 6§ 5—8 i 24 Wendell, «20. » 2R. S. (Sded.) 828,69. * 2R. S. (3ded.)S59,S100 > Laws of 1842, chap. IBS. 190 NEW CLERK'S ASSISTANT. FORMS. § 354. Oath to he Administered to the Foreman of a Coroner's Jury. You do swear that you will well and truly inquire how, and in what manner, and when and where, the person lying here, [or, as the case may ie,] came to his death, [or, was wounded,] and who such person was, and into all the circumstances attending such death, [or, woimding,] and by whom the same was produced, and that you wiU make a true inquisition thereof,' according to the evi- dence offered to you, or arising from the inspection of the body. So help you God. § 355. Oath of other Jurors. The same oath which A. B., the foreman of this inquest, hath on his part taken, you, and each of you, do now take, and shall well and truly observe and keep, on your parts. So help you God. . § 356. Oath of Witness on Coroner's Inquest. The evidence you shall give upon this inquest, touching the death of 0. D., \or, the person whose body has been viewed,] shall be the truth, the whole truth, and nothing but the truth. So help you God. § 357. Inquisition of Mwrder. State of New York, ) County, j An inquisition taken for the people of the State of New York, at the house of K F., in the town of , in said county of on the day of , A. D., 18 , before me, G. H., one of the Coroners in and for said county, upon the view of the body of C. D., \or, a person unknown,] then and there lying dead, upon the oaths of A. B., E. F., L. M., &c. &c., good and lawful men of the said county, who, being duly sworn to inquire, on the part of the people of the State of New York, into all the circumstances attending the death of the said C. D., \or, person unknown,] and by whom the same was produced ; and in what manner ; and when and where the said C. D. \or, person unknown] came to his death, do say, upon their oaths, as aforesaid, that* one 0. P., of \or, late of] the town of , in the county of , aforesaid, \or, as the case may ie,] pn the day of , in the year 18 , at o'clock m the afternoon of that day, with force and arms, did, at , in the county of , aforesaid, then and COEONEKS; 191. there, feloniously, -violenily, and of his malice aforethouglit, make an assault in and upon the body of the aforesaid C. D., [or, person un- known,] then and there present; and that the aforesaid 0. P„ then and there, with a certain sword made of iron and steel, [or, with a certain instrument made of, &c., to them unknown ; or, as the case may 6e,] wliich he, the said 0. P., then and there held in his right hand, violently, feloniously, 'and of his malice aforethought, inflicted a mortal wound, [or, wounds] upon the left breast [or, as the case may 6e] of the said C. D., of which said mortal wounds the said C. D., then and there instantly, [or, on the day of, 2 R. S. (3d ed.i22, § 140; 14 Wendell, 83 ; 8 Paige, 098: 2 liarboui's Ch. Hep., 559. > 13 Johnson, 236; 5 Cowen, 137; 8 Id., 2Uli; 7 Wendell, 281 ; 10 Id.. 180; 17 Id., 148; 21 Id., 120: 2 Hill, 1U6; 5 Id., 699; 3 Denio, 284; 4 Paige, 610. < 1 Baibour's S. C. Rep., 399. COVENANTS. ICD 6. If a grantor has no title, his covenant of seizin is broken im- mediately on the execution of his deed ; but where there are cove- nants of warranty and quiet enjoyment only, there must be an eviciion, before a recovery can be had.' 7. A covenant for quiet enjoyment in a lease of land for life is binding upon a subsequent grantee in fee of the premises.' 8. Personal covenants ai'e those which aflfect only the covenanter during life, or are merely collateral to the title to land ; as covenants that the grantor is well seized, that he has good right to convey, and that the premises are unincumbered,' 9. If a day be appointed for the performance of any act, which is to happen, or may happen, before the performance of the act, which is the consideration of the first mentioned act, then the covenants are several and independent, and an action may be brought without averring performance of the consideration: the same rule applies where there is no fixed time for the consideration. But when the day appointed for the payment of the money, or performance of an act, is to happen after the thing, which is the consideration, is to be performed, the covenants are dependent, and no action will lie be- fore the performance of the consideration. Where a covenant goes only to a part of the consideration, it is an independent covenant But where the covenants go to the whole consideration on both sides, they are mutual conditions, and dependent. Where two acts are to be done at the same tim^, neither party can maintain an action, without showing performance, or an ofier to perform, on his part* 10. Covenants are to be construed according to their spirit and in- tent; and where, from the subject matter of the covenant, it is the evident intent of the parties that they should be taken severally, they may be so taken, although there be no express words to that effect' 11. A covenant must be construed by itself and cannot be con- trolled by a verbal agreement' FOEMS. § 372. General Form of Covenant by one Person. And I, the said A. B., for myself and my heirs, executors and administrators, do hereby covenant, to and with the said C. D., hia heirs and assigns, that, &c. 1 1 Comstock, S09. 2 3 Barbour's S. C. Rep., 391. < 4 Johnson, 72; 3 Hill, 134 ; 3 Denio, 284. « 17 Johnson, 293; 6 Cowen, 296; 2 Wen- dell, 4C7; S Id., 496 ; S Id., 616: I Uenio, E 3 Id., 73. » 6 Johnson, 49 ; 1 Wendell, 228. « 5 Wendell, 1(53. 200 HEW CLERK'S ASSISTANT. § 3'r3'. Joint and Several Covenant. And we, the said A. B. and C. D., for ourselves and our heirs, executors and administrators, do hereby jointly and severally cove- nitsii, to and -with the said E. F., his heirs and assigns, that, ckc. § 374. Several Covenant. And we, the said A. B. and C. D., do hereby severally, and not jointly, but each for himself and his heirs, executors and adminis- trators, covenant, to and with the said E. F., that, &c. § 375. Covenant by Hitshand, for himself and his Wife. And the said A. B., for .himself and his heirs, executors and ad- ministrators, and for and on behalf of his wife, the said M. B., and her heirs, (fee, doth covenant with the said E. R, that, &c. § 376. Covenant of Seizin. And the said A. B., for himself, and his heirs, (fee, doth hereby covenant, to and with the said C. D., his heirs and assigns, that he is lawfufy seized, as of a good and indefeasible estate of inheritance in the law, in fee simple, of and in the above granted premises, (fee. § 377. Several Covenant of Seisin. And the said A. B., E. B. and C. B., do hereby, severally, and not jointly, and each for himseL^ and for his heirs, executors and admin- istrators, covenant, to and with the said C. D., that he is lawfully seized Of the one-third part, of, (fee. § 378. Covenant ly Several Grantors, where Each Confines his Covenant to his own Portion of the Estate. And the said A. B., for himself, his heirs, (fee, and for the estate, right, title, quiet enjoyment, and further assurance, of the one-third part of the above granted premises; and the said E. B., for himself, (fee, and for the estate, (fee, of one other third part of the said prem- ises ; and the said 0. B., for himself, (fee, and for the estate, (fee, of one other, and the remaining third part of the said premises, do, and each and every of them doth, severally, but not jointly, covenant, to and with, (fee § 379. Covenant that Premises are Unincumbered. And the said A. B., for himself, (fee, doth hereby covenant, to and with the said C. D., his heirs and assigns, that the said premises COTENANTS. 201 hereby granted, are free and clear, of and from all incumbrance, of every name and nature whatsoever. § 380. Covenant for Further Assurance. And further, the said A. B., for himself, &c., doth hereby covenant, to and -with the said C. D., his heirs and assigns, that he, the said A. B., for himself and his heirs, and all and every other person or per- sons, lawfully claiming, or to claim, by, from, or under, him, or them, shall and will, from time to time, and at all times hereafter, upon the reasonable request, and at the cost and charge of the said C. D., his heirs and assigns, make and execute, or cause and procure to be made and executed, all and every such further, and other lawful and rea- sonable deed, or deeds, whatsoever, for the further, better, and more perfect and absolute, assurance of the said premises hereby granted, or intended so to be, with their appurtenances, unto the said C. D., his heirs and assigns, as by him or them, or by his or their counsel, learned in the law, shall be reasonably advised, devised, or required. § 381. Joint Covenant against Incumhrance. And the said A. B. and C. D., for themselves, their heirs, &c., do severally, and not jointly, nor one for the other, or for the act or deed of the other, but each for his own acts only, covenant, promise, grant and agree, to and with the said E. F., his heirs and assigns, by these presents, that they, the said A. B. and C. D., have not hereto- fore done, or committed, any act, matter, or thing, whatever, whereby the premises hereby granted, or any part thereof, are, or shall be, charged, in title, estate, or otherwise. § 382. Covenant for Quiet Enjoyment. And the said A. B., for his heirs, &c., doth covenant, promise and and agree, to and with the said C. D., his heirs and assigns, by these presents, that he, the said C. D., his heirs and assigns, shall and law- fully may, from time to time, and at aU times hereafter, peaceably and quietly have, hold, occupy, possess and enjoy, the said premises, &c., hereby granted, or intended so to be, with the appurtenances, without the lawful hindrance, or molestation of the said A. B., his heirs and assigns, or of any other person or persons whatsoever, by or with his or their act, consent, privity, or procurement § 383. Covenant hy Tenant for Life, and Tenant in Fee of the Reversion. And we, the said A. B., and A. B., junior, for ourselves respec- tively, and our respective heirs, do severally, and not jointly, cove- nant and agree, to and with the said C. D., bis heirs and assigns, that we are lawfully seized in fee of the aforegranted premises, in 202 NEW CLERK'S ASSISTANT. manner following, that is to say : that the said A. B. is seized there- of for liis life, and as tenant by the courtesy ; and that the said A. B., junior, is seized in fee simple of the reversion, or remainder there- of expectant upon the determination of the said estate by the cour- tesy, (kc. § 384. Mutual and Dependent Covenant. And the said A. B., for himself, &c., doth hereby covenant and agree, to and with the said C. D., his heirs and assigns, that he will pay to the said C D., his heirs or assigns, the sum of , dollars, on the day of next; and in consideration lliereof, the said C. D., for himself &c., doth covenant and agree, to and with the said A. B., his heirs and assigns, that he will make and execute to the said A. B., 2 R. S. (3d. ed.) 77, S§ 8-11 : Laws of 1847, chap. 366 ; 1 Wendell, 90. a Laws ofl847, chap. 366. 3 2 R. S. (3d. ed.) 18, 5 12, etaeq.: 13 John- eon, 385; 6 Wendell, 632; 7 Id., 240. < 2 R. S. (3d. ed,) §5 30, 31 ; 9 Johnson, 127 i 10 Id., 63, 289 : 20 Id., 208 ; 2 WendeU, 457 : 9 Id ; 313 ; 12 Id.. 102 j 19 Id., 150, 629 • 5 HiU, 242; 3 Paige, 338. DEBTOR AND CREDITOR. 205 the Mayor. In the city of New York, application may be made to any one of the Justices of the Superior Court, or Judges of the Court of Common Pleas. The officer to whom the petition is presented, must reside in the same county with the insolvent debtor. If there be no officer in the county authorized to act in the premises, the application can be made to an officer in any other county : the place appointed for the hearing, however, must be in the county where the debtor resides.' 7. Any person against,whom any suit shall have been commenced in a court of record, in which such person cannot be arrested or imprisoned, may present a petition to a Justice of the Supreme Court, or County Judge in the same county; or, in the city of New York, to any one of the Justices of the Superior Court, or Judges of the Court of Common Pleas, praying that his property may be assigned. Fourteen days' notice of the presentation of the petition is required to be given. The notice is to be served with a copy of the petition, account, and inventory, forms of which are hereinaftei given, on the plaintiff, or plaintiffs, by whom the defendant shall be prosecuted, their personal representatives, or attorney ; and proof of such service must be made at the time of presenting the petition. The subsequent proceedings upon such petition, are similar to those in the case of an insolvent debtor, as above mentioned. The dis- charge granted in pursuance thereof, will exonerate the debtor from being proceeded against by any creditor entitled to a dividend of the estate of such petitioner." 8. An assignment executed by an insolvent debtor, under the foregoing provisions, of all his estate, real and personal, passes the title to all lands he may own, without further description, and whe- ther such lands are mentioned in the inventory or not A re-con- veyance to him will not be presumed.' 9. Whenever any debtor is imprisoned in the State Prison, for any term less than his natural life; or in any penitentiary, or county jail, for a criminal offence, for any term more than one year ; application may be made to any of the officers to whom the petition of an insol- vent may be presented, by any creditor of such debtor, or by any of his relatives, or by any relative of his wife, for the appointment of trastees to take charge of the estate of such debtor. A copy of the sentence of conviction of such debtor, duly certified by the Clerk of the court, under his seal of office, together with an af&davit of the applicant, that such debtor is actually confined under the sentence, and that he is indebted, (in any sum whatever,) must be presented to the officer, who thereupon proceeds to appoint two oi 1 2 R. !; (3rl. ed.) 91, 92, §§ 1-6. | 'R. S. (3d ed.)110, i 13, et seq.; 3 nill, 109 s> Laws oflS31,chap. 300,^ 12, et seq.; 41d.^l,606. I > 2 Deuio, 61. "20C NEW CLERK'S ASSISTANT. more fit persons, as trustees of the estate of the debtor. Whenever the imprisoned debtor is lawfuEy discharged from imprisonment, the trustees are bound to surrender up to him all his real and personal estate, and all moneys belonging to him, in their hands, after retain- ing sufficient for their expenses and lawful commissions.^ 10. Assignees, or trustees, of insolvent or imprisoned debtors, may be appointed to fiU vacancies, by the officer before whom the former proceedings were had, or his successor in office, or any other officer residing in the same county with the original assignee or trustee, to whom the petition might, in the first instance, have been presented. The appointment must be certified, and filed in the Clerk's office of the county.' FORMS. § 386. Letter of License to a Debtor . To all to whom these presents shall come : We, E. F.', o^ &c., ana G. F., of, (fee, \iiame the several creclitorsi\ whose names are under- written, and seals affixed, creditors of A. B., now or late of , send greeting : Whereas, the said A. B., on the day of the date hereof, is indebted unto us, the said creditors, in divers sums of mo- ney, which, by reason of great losses and misfortunes, he is not at present able to pay and satisfy, without respite of lime be given him for that purpose : Know ye, therefore, that we, the said creditors, and every one of us, do, by these presents, severally give and grant unto the said A. B., free license, liberty and leave, to come, go and resort, unto us, and every of us, his said creditors, to compound and take order with us, and every one of us, for our and every of our debts ; and also go about his other business and affairs, at his free will and pleasure, from the day of the date hereof, until the fuH end and term of months next ensuing, without any let, suit, trouble, arrest, attachment, or other disturbance whatsoever, to be offered or done unto him, the said A. B., his wares, goods, mojiey, or merchandise, whatsoever, by us,^or the assigns of us, or any or either of us, or by our or any of our means or procurement; and we, the said creditors, severally and respectively, each for himself, his executors and administrators, do severally, and not jointly, cove- nant and agree, to and with the said A. B., his executors, adminis- 1 2 R. S. C3d ed.) 74, 75, J§ 1-5; 16 Wen- I » Laws of 1846, chap, 168. dell, 250. I DEBTOR AND CREDITOK. 207 trators, and eyery of them, by these presents, that if any trouble, vexation, wrong, damage, or hinderance, shall be done unto him, the said A. B., either in his body, goods, or chattels, within the said term of months, from the date of these presents, by us, or- any of us, contrary to the tenor and effect of this our Kcense, that then he, the said A. B., his executors and administrators, shall be acquitted and discharged towards and against him and them, of us, his and their executors, administrators, partners and assigns, and every of them, by whom and by whose means he shall be vexed, arrested, troubled, imprisoned, attached, grieved, or damnified, of all manner of actions, suits, quarrels, debts, dues and demands, either in law or equity, whatsoever, from the beginning of the world to the day of the date of these presents : provided always, nevertheless, and it is the true intent and meaning of these presents, and of the said par- ties herevinto, that if all the said parties shall not subscribe and seal these presents, then, and in such case, the liberty and license hereby given and granted, and every clause, covenant, matter and thing, herein contained, shall cease and be utterly void, to all intents and purposes ; any thing hereinbefore contained, to the contrary thereof, in any wise notwithstanding. In witness whereof, the said parties to these 'presents have here- unto set their hands and seals, the day of , 18 . Signed, sealed and delivered ) E. R [l. s.J in presence of J &c., &c. G. H. § 387. Composition with Creditors. To all to whom these presents shall come : We, whose names are hereimder written, and seals affixed, creditors of A B., of, &c., send greeting: Whereas, the said A B. does justly owe, and is indebted unto us, his said several creditors, in divers sums of money ; but by reason of sundry losses, disappointments, and other damages, hap- pened unto the said A. B., he is become unable to pay and satisfy us of our fuU debts, and just claims and demands, and therefore we, the said creditors, have resolved and agreed to undergo a certain loss, and to accept of cents, for every dollar owing by the said A. B., to us, the several and respective creditors aforesaid, to be paid in full satisfaction and discharge of our several and respective debts : Now, know ye, that we, the said creditors of the said A. B., do, for ourselves, severally and respectively, and for our several and respective heirs, executors and administrators, covenant, promise, compound and agree, to and with the said A B., by these presents, that we, the said several and respective creditors, shall and wUl ac- cept, receive and take, of and from the said A B., for each and every dollar that the said A B. does owe and is indebted to us, the said several and respective creditors, the sum of cents, in ^^S JSTEW CLERK'S ASSISTANT. full discharge and satisfaction of the several debts and sums of money that the said A. B. does owe and stand indebted unto us ; to be paid unto us, the said several and respective creditors, within the time or space of months next after the date of these presents ; and we, the said several and respective creditors, do severally and respectively covenant, promise and agree, to and with the said A. B., that he, the said A. B., shall and may, from time to time, and at all times, within the said time or space of months next ensuing the date hereof, assign, seE, or otherwise dispose of, all his goods and chattels, wai-es and merchandise, at his own free will and pleasure, for and towards the payment and satisfaction of the said cents for every dollar the said A. B. does owe and is indebted unto us, as aforesaid; and that neither we, the said several and respective creditors, nor any or either of us, shall or will, at any time or times hereafter, sue, arrest, molest, or trouble, the said A. B., or his goods and chattels, for any debt or other thing, now due and, owing to us, or any of us, his respective creditors : so as the said A. B. well and truly pay, or cause to be paid, the said sum of cents for every dollar he does owe and stand indebted to us, respectively, within the said time or space of months next ensuing the date hereof; and aU and eveiy of the grants, covenants, agreements and conditions, herein contained, shall extend to and bind our seve- ral executors, administrators and assigns In witness whereof, we, the undersigned, have hereunto set our, &c., [as in § 386.] § 388. Petition, of Insolvent and his Creditors^ under the Two- Third Act. To the Hon. J. P. H., County Judge of County: \or, as the case may 6«.] The petition of A. B., of the town [or, city] of , an in- solvent debtor, and others, whose names are hereunto subscribed, creditors of the said insolvent, residing within the United States, re- spectfully showeth : That the said insolvent, from many unfortunate circumstances, has become insolvent, and utterly incompetent to the payment of his debts; wherefore he, and your other petitioners, are desirous that the said insolvent's estate should be distributed among his creditors, in discharge of their debts, so far as the same wiU ex- tend; and for that purpose pray, that all his estate, real and personal, may be assigned over and delivered up to J. K, of, (fee, and L M., of, &c., as assignees, appointed by the said creditors, having debts in good faith owing to them by the said insolvent, now due, or hereafter to become due, and amounting to at least two-thirds of all the debts owing by the said insolvent, to creditors residing within the United States : And fui-ther, that the said insolvent may be discharged from DEBTOR AiSD CREDITOR. 209 his debts, agreeably to the direction of the statute of the State of New York, concerning " Voluntary assignments, made pursuant to the application of an insolvent and his creditors." Dated the day of , 18 . A. B. E. R, 8 , J [Insert the amotmt dtie to G. H., $ ,y each creditor, opposite the S. T., &Co., $ ,)j" § 389. Affidavit of Residence of Petitioner. I, L. M., do swear, that A. B., in the annexed petition named, is an inhabitant actually residing within the county of , and State of New York. L. M. Sworn to before me, the ' day ) of , , 18 . j J. P. H., County Judge ; [or any officer anthorised to take affi- davits to be read in a court of recordi\ § 390. Affidavit of Creditor. State of New York, )^. County, j E. F., of the said county, one of the petitioning creditors of A. B., an insolvent debtor, being duly sworn, doth depose and say, that the sum of dollars, lawful money of the United States, being the sum annexed to the name of this deponent, subscribed to the petition, is justly due to him from the said insolvent, on account, for [or, on a promissory note given for] goods, wares, and merchandise, sold and delivered by him to the said insolvent; [or, as the case may he; sta- ting the nature of the demand — whether on written security or other- wise, — and the general ground and consideration of the indebtedness;^ and that neither he, nor any person to his use, hath received from the said insolvent, or any other person, payment of any demand, or any part thereof in money, or in any way whatever, or any gift or reward ■whatsoever, upon any express or implied trust or confidence, that he should become a petitioner for the said insolvent Sworn, &c., [as in § 389.] E. F. § 391. Affidavit of one of a Firm, who are Creditors. State of New York, ) ^ . County, j S. T., of the said county, partner of the firm or copartnership of S. T. &. Co., who, as one of iJie copartners, and in their behali^ hath subscribed to the petition the name or firm of their said copartner- ship, as petitioning creditors of A. B., an insolvent debtor, being duly 14 210 NEW CLERK'S ASSISTANT sworn, doth depose and say, that the sum of dollars, lawful money of the United States, being the sum annexed to the name of the said copartnership subscribed to the petition, is justly due to theni from the. said insolveut, for [state the nature of the demand, whether owing on written security, or otherwise, with the general ground and consideration of the indebtedness ;~\ and that neither he, nor any per- son to his or their use, hath received from the said insolvent, or any other person, payment of 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 or they shoiild become a peti- tioner or petitioners for the said insolvent ■ Sworn, &c., [as in § 389.] § 392. Schedule of Petitioner. The Schedule of A. B., an insolvent, annexed to and delivered with his petition, to the Hon. D. W., Recorder of the city of , [or, as the case may Je,] and containing a full and true account of aU the creditors of the said A. B., with the place of residence of each ; the sum owing to each of them by the said insolvent; the nature of each debt, with the true cause and consideration thereof; and the place where the same accrued. Creditors. Reeidence. Amount. Nature of debt, with true cause and consideration thereof. Accrued at Dolls. Cts. L.M. S. T. * Co. N.B. New York. Albany. Auburn. 562 1182 1000 39 U 00 On account, for goods, wares, and metchandise, sold and de- livered to the said A. B. On promissory note, given on purchase of bill of goods, wares, and merchandise. On a bond, given as collateral security for payment of the sum of t , secured to be paid by a certain mort- gage, executed by the said A. B., to the said N. B., the origi- nal consideration of which was money lent to the said A. B. New York. Albany. Auburn. Also a full and true inventory of all the estate, both real and per- sonal, in law and equity, of the said A. B., an insolvent debtor; of the incumbrances existing thereon, and of all the books, vouchers, and securities, relating thereto, as follows, to wit : Ten acres of land, situate in, &c., subject to a certain mortgage, given, &c. ; twenty shares of the capital stock of the bank of , two horses; one lumber wagon; one two-horse carriage; one sofa, &c., &c. Dated the day of 18 . A-B DEBTOR AND CREDITOR. 211 § 393. Oath of Insolvent. I, A. B., do swear, that the account of my creditors, and the inven- tory 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 o^ or made over, any part of my estate, for the future benefit of myself and family, or in order to defraud any of my creditors; and that I have, in no instance, 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. Sworn &c., \as in § 389.] A. B, § 394. Order for Creditors to Show Came, and for Pvhlication. Ordered, That all the creditors of A. B., an insolvent debtor, be required to show cause, if any they have, before me, on the day of next, at o'clock in the noon, at my office in the town of , why an assignment of the said insolvent's estate should not be made, and he be discharged from his debts, pur- suant to the provisions of the statute for the discharge of an insolvent from his debts, notice for which is to be published for six [or, ten] weeks, successively, in the state paper, and the newspaper printed in the county of , entitled the . Dated the day of , 18 . D. P. Justice of the Supreme Court § 395. Notice to he Published. ifotice of application for the discharge of an insolvent from his debts, pm-suant to the provisions of the third article of the first title of the fifth chapter of the second part of the Revised Statutes : A. B., of the town of , in the coimty of , an insol- vent debtor; \or, if the applicant he a member of an insolvent firm, say: A. B., of the city and coimty of New York, an insolvent debtor, individually, and as one of the firm, [or, late firm] of B. & Y. ;] Notice first published, July 1,1847. Creditors to appear before Hon. J. P. H., Coimty Judge of said county of , at his office in the tovra of , on the day of next, at ten o'clock in the forenoon, to show cause, if any they have, why an assignment should not be made of said insolvent's estate, and he be discharged from lus debts. 212 NEW CLERK'S ASSISTANT. § 396. Notice to he served on the Creditors Besiding in the United States, with the Notice of the Order to Show Cause. Sir: — You will please take notice, that the foregoing io»". tlie ■within,] is a copy of a notice to show cause, before the Hon. J. P. H., County judge of county, at the time and place therein speci- fied, why I should not make an assignment of my estate, and be dis- charged from my debts, &c. Dated the day of , 18 . To L. M. Yours, For AOidaWt of Execution, see 6 401. ( 400 i ard certificate of Clerk, see J 4Ua | -• > 220 UE-w CLERK'S ASSISTANT. discharge, to exonerate the said petitioner from being proceeded against by any creditor entitled to a dividend of his |state. Given under my hand and seal, the day of , one thousand eight hundred and C. P. D., Judge oft &c § 415. Affidavit of Person applying for the Appointment of Trus- tees for estate of I)ebtor confined for Crime; to Accom^ pany the . Copy of the Sentence, and Certificate of the Clerk State of New York, ) ^ . County, ) A. B., of said county, being duly sworn, says, that C. D., the per- son named in the annexed [or, within] copy of sentence of convic- tion, is now actually imprisoned in the State prison at , [or, in the penitentiary of, &o. ; or, the coimty jail of the county of ,] in the State of New York, under and in pursuance of the said sentence of conviction ; and that the said C. D. is indebted to this deponent [or, to L. M., of, &c.] in the sum of dollars, on account, [or, as the ease may be,'] for goods, wares and merchan- dise, sold and delivered to the said C. D., by this deponent, [or, by the said L. M. ;] and this deponent therefore makes application, for the appointment of Trustees of the estate of the said C. D., ac- cording to the statute. A. B. Sworn, &c., [as in § 389.] § 416. Appointment of Trustees, on the Foregoing Affidavit and Application} By the Hon. D. P., one of the Justices of the Supreme Court of the' State of New York; [or, as the case may 6f,] Whereas, A. B., a creditor [or, a relative] of C. D.,, [or, a 1-elative of M. D., vrife of C. D.,] a debtor confined for crime, did, on the day of last past, [or, instant,] make application to me for the appointment of lYustees to take charge of the estate of the said C. D. ; and did also produce a copy of the sentence of conviction of the said C. D., duly certified by P. V., Esq., Clerk of the Court of [spedfy the court before which the convictionwas had^vjoAst his seal of office, by which said court of the said sentence of conviction was passed.; I The Trustees appointed to take charge of the estate of a debtor confined Ibr crime, haTO Che same rights and powers as Trustees of the estates Of absconding debtors. From the time of their appointment, the real and personal estate' of the debtor is rested in them; and they are clothed with fulj power to sue for and collect all demands, to soil and dispose of the properly of the debtor, and apply the proceeds in payment of nis debts. Before pro- ceeding to the discharge of their duties, it is necessary to take and subscribe the oath, (S 417,) which must be tiled with the officer appointing them. DEBTOR AND CREDITOR. 221 igether ■with an afiSdavit of the said A. B., that the said C. D. is jtually imprisoned under the said sentence, and is indebted to the 16 said A. B., [or, to L. M.,] of, (fee, in the sum of dollars: ow, therefore, I, the said Justice, as aforesaid, do, in pursuance of le authority to me ^ven by the statute concerning "Attachments yainst debtors confined for crimes," appoint M. N. and 0. P., two t persons, to be Trustees of the estate of the said C. D., with such owers concerning the estate of the said C. D., as are conferred by le said statute. Given under my hand and seal, this day of, &c. D. P. [l. s.] § 417. Oath of Trustees of the Estates of Debtors. We, M. K and O. P., appointed Trustees of the estate of C. D., debtor confined for crime, \or, as the case may be,'] do swear, and ach for himself doth swear, that he will well and truly execute the rust, by his appointment reposed in him, according to the best of is sMU and understanding. M. N. Sworn, &c., [as m § 389.] 0. P. CHAPTER XVI. DOWEE. \ PRACTICAL REMARK S. 1. A widow is entitled to dower of tlie third part of, all lands whereof her husband was seized of an estate of inheritance, at any- time during the marriage. In case of divorce, for misconduct of the wife, dower is forfeited ; it is also barred by a pecuniary provision, made for the benefit of an intended wife, and in lieu of dower, if assented to by her; and where an estate in lands is conveyed to a person and his intended wife, for the purpose of creating a jointure for her, with her assent, to be signified by becoming a party to the conveyance ; or, if an infant, by joining with her father or guardian, in such conveyance ; such jointure will be a bar to any right or claim of dower, in any lands of the husband. So also a devise, or legacy, in lieu of dower, which is accepted, is a good bar.* 2. A testamentary provision in favor of a wife, where the inten- tion of the testator is doubtful, may be accepted without forfeiting dower.' 3. Where a mortgage of lands is executed by the husband before marriage, unless it be for the purchase money, the widow is entitled to dower as against all pei-sons except the mortgagee and those claim-^ ing under him ; if a mortgage be executed after marriage, for the purchase money, the widow will not be entitled to dower as against the mortgagee or those claiming under him, except that where the premises are sold by vif tue of the mortgage, after the death of the husband, and there be surplus moneys left after satisfying the mort- gage, she win be entitled to the interest or income of one-third of such surplus during her life.' 1 2R.S.(3ded.)26,61;Id.,27,5§8— 11; I a 2 Deoio, 430. 1 Johnson, 307 :10 Id., 30; rcowen, 287:10 » 2 R. S. (3d ecl.)26, §54, 5: Id., 27, 1 6 Wendell, 486 ;il Id., 592; 16 Id., 61; 24 Id., 1 Barbour's S. C. Rep ' 399. 193 ; 3 Rill, 96 : 6 Id., 482 : 1 Pdge, 634 ; 2 I M., 559; 7 Id., 269. DOWER. 223 4. A widow is not entitled to dower in lands conveyed to Her hus- band by way of mortgage, unless he acquire an absolute estate there- in, during the marriage.' 5. A woman who has obtained a divorce a vinculo matrimonii, for the adultery of her husband, is not entitled to dower in his real es- tate, after his death." 6. No act of the husband alone subsequent to marriage, will aflfect the right of dower of his widow, but subsisting liens or incumbrances have the preference over her right' 7. Where a husband exchanges lands, in which he is seized of an estate of inheritance, for other lands, his widow is not entitled to dower in both, but must make her election in one year; otherwise, it will be presumed that she elects to take her dower of the lands received in exchange.* 8. The widow of any alien, who, at the time of his death, was entitled to hold any real estate, if she be an inhabitant of thiS State at the time of such death, is entitled to dower of such real estate.' 9. Any woman, being an alien, who has married, or may marry, a citizen of the United States, will be entitled to dower m the real estate of her husband within this State, in the same manner as if she were a citizen of the United States.' 10. In a doubtful case, where the right to dower depends upon the possession of the husband, the actual possession must be shown, and it must appear that he claimed to be tiie owner of the premises, and exercised acts of ownership.' H. A married woman under the age of twenty-one years, cannot bind herself by deed so as to bar her right of dower.' 12. A widow of a mortgagor is dowable of the equity of redemp- tion, except where the time of redemption is past before the marriage takes place.' 13. Where lands have been alienated by the husband, in his Kfe- fime, the widow is entitled to so much as shall be equal in value to one-third of the value of the lands at the time of the conveyance by the husband.'" 14. A widow may release her right of dower, but she cannot con- vey or assign the same, before the assignment be made. The heirs or owners may, on the other hand, assign her dower, without msti- tuting any legal proceedings." 1 2R. S. (3ded.)2r,§7. 3 4 Barbour's S. C. Rep., 192. « 3 Barbour's S. C. Rep., 319. <2R. S. (3d. ed.)26, S3. >2R. S. (3d. ed.>26,§2; IJohnson's Gas., 27; 1 Cowen, 89; 12 Wendell, 66; 4 Kent's Commentaries, (2d ed.) 36. • Laws of 1845, chap. 115. 1 5 Cowen, 301; 17 Wendell, 164; 2 Hill, 303,341. e 1 Barbour's S. C. Rep., 399. " 6 Cowen, 316; 14 Wendell, 233; 19 Id., 162: 4 Kent's Commentaries, '2d ed.) 44, 45. i»2 Johnson, 484; 11 Id^Bl; 13 Id., 179; 10 Wendell, 485; 4 Kent's (;ommentaries,(2d ed.J 64. 70. " 1 Barbour's S. C. Eep., 399; 3 Id., 319, 224. NEW CLEEK'S ASSISTANT. 15. Any widow who shall not have lad her dower assigned to her, within forty days after the decease of her husband, may apply by petition, to the Supreme Court, or the County Court of the coimty in which the lands lie, or to the Surrogate of the same coimty, for the admeasurement of her dower. A copy of' such petition, with no- tice of the time and place when it will be presented, must be served, at least twenty days previous to its presentation, upon the heirs of the husband, or iipon the owners of the land subject to dower, claiming a freehold estate therein; or upon the guardians of such heirs, or own- ers, as are minors. Such notice may be served personally : or, in • case of the temporary absence of the party to be served, by leaving the same with any person of proper age, at the last residence of such party. If any heir or owner reside Out of the State, the notice may be served upon the tenant occupying the lands; or, if there be no' tenant, by publishing the same for three weeks successively, in some newspaper printed in the county where such lands are situated.' 16. The Court or Surrogate may, on application, appoint guardians for minors, if necessary; and notice of the apphcation must be ser- ved on the guardian, whether the' infant reside in this State or not' 17. After the expiratibn of forty days from the death of the hus- band, his heirs, or the owners of land subject to dower; may, by notice in writing, require the widow to make demand of her dower, within ninety days after the service of such notice. If this notice be disregarded, and rio proceedings be instituted by the widow for the recovery of her dower; or if no such proceedings be had with- in one year after the husband's death, where no notice has been given ; the heirs or owners, as aforesaid, may apply, by petition, for the admeasurement of her dower, to the Supreme Court, County Court, or Siirrogate. ' A copy of such petition, with notice of the time and place of its presentation, must be personally served on the widow, twenty days before the presentation.' 18. Upon such application bemg made, either by a widow, or by an heir or owner, or by the guardian of such heir or owner, the Court, or the Surrogate, to whom the same is made, may order an admeasurement of the widow's dower; and shall thereupon appoint three reputable and disinterested freeholders, as commissioners for the purpose of making such admeasurement After taking the re- quired oath, the commissioners so appointed will proceed to admea- sure and lay off the one-third part of the lands embraced in the order, as the dower of the widow, designating such part with posts, Btones, or other permanent monuments. In making such apportion- ment, the commissioners must take into consideration any permanent » 2 R. S. (3d ea.) 582, §5 1-3; Laws of 1849, I a 2 R. S. (3d ed.) 683, 55 4, 6. chap. 438, Part I, title ir, 5 30, sub. i: 4 Wen- 3 g r. g. (3d ed.) 583, 55 S-a deli;630; k Id., 138. | BOWER. 225 improvoments made since the death of the husband, by any heir, owner, or guardian ; and, if practicable, award such improvements within that part of the lands not allotted to the widow ; and if not practicable, they shall make a proportionate reduction therefor, from the lands so allotted to her. The commissioners are also required to make a full and ample report of their doings, to the Court or Surro- gate appointing them; in which report, the quantity, courses, dis- tances, posts, stones and other permanent monuments, of the premises, must be particularly described and set forth. They may employ a surveyor, with necessary assistants, to aid them in the admeasuyement.' 19. Within thirty days after the confirmation of the admeasure- laent by a County Court, or Surrogate, any party aggrieved ma}' appeal to the Supreme Court, on giving a bond, to be approved by the County Judge, or Surrogate, in the penal sum of one hundred dollars ; and the Supreme Court shall then proceed to hear and de- termine the said appeal, and to review all the proceedings upon the application, and do therein what shall be just," 20. Real estate assigned to a widow as dower cannot be sold un- der the order of a Surrogate, for the payment of debts owing by her deceased husband.' 1^ FORMS, § 418. Assignment of Dower. This indenture, made the day of, &c., between R B., son and heir of A. B., late of, &c., of the one part, and M. B., who is the widow of the said A. B., [or, C. D., and M., his wife, (late M. B.,) who was the widow of the said A. B.,] of the other part: Whereas, the said A. B. was, in his lifetime, and at the time of his death, seized in his demesne, as of fee, of and in divers lands and tenements in , in the county aforesaid, which, upon the de- cease of the said A. B., descended unto the said R. B. : Now, there- fore, this indenture witnesseth, that the said R B. hath endowed and assigned, and by these presents doth endow and assign, unto the said M. B., [or, as aforesaid,'] the third part oi the said lands and tene- ments, to wit: \description:'\ To have and to hold the said premises unto the said M. B., \or, as aforesaid,] for and during the natural life • 2 R. S. (3d ed.) 583, 684, §5 9-}7; 1 Cow- 1 = 2 R. S. (3d ed.) 685, 586, S5 18-27; 2 Hilli en, 476: 4 Wendell, 630; 8 Id., 460j 10 Id., 644. 180: 2 Hill, 644. " s 2 Cometock, 245. 15 226 srE-V7 CLERK'S ASSISTANT. of the said M., in severalty, by metes and bounds, in the name cif dower, and in recompense and satisfaction of all the dower which tlie said M. ought to have, of or in the said lands and tenements which were of the said A. B., in , aforesaid. In witness whereof, the said E. B. hath hereunto set his hand and seal, the day of , in the year eighteen hundred and Sealed, signed and delivered, ) El B. [l. s.] ia presence of J ' G. H. § 419. Belease of Dower to the Heir. Know aU men, &c. : That I, M. B., &c., relict of A. B., late o^ (fee, as well for and in consideration of the sum of dollars, to me paid, by my son, R. B. of, &c., as for the love and affection which I have to my said son, have granted, remised, released, and forever quit-claimed, and by these presents do grant, remise, release and quit-claim, unto the said R. B., his heirs and assigns, forever, all the dower and thirds, right and title of dower and thirds, and aU other right, titie, interest, property, claim and demand, whatsoever, in law and in equity, of me, the said M. B., of, in and to, \descrip- tion;J so that neither I, the said M. B., my heirs, executors, or administrators, nor any other person or persons, for me, them, or ani" of them, shall have, claim, challenge, or demand, or pretend to have, claim, challenge, or demand, any dower or thirds, or any other right, titie, claim, or demand, of, in, or to, the said premises, but thereof and therefrom shall be utterly deban-ed and excluded forever, by these presents. In witness whereof, I have hereunto set my hand and seal, the day of, &c., [as in § 418.] t,t § 420. Petition for Dower, To the Supreme Court of the State of New York: [or, To the County Court of the County of, &c. ; or. To the Surrogate of the County of :]* The petition of M. B., of, &c., widow of A. B., of, &c., deceased, respectfully showeth. that her said husband died on the day of ,18 , at, (fee, leaving an estate in fee belonging to him when he died, in and to [describe the real estate/] that she has not had her dower therem assigned to her, within forty days after the decease of her said husband, nor at any time since. Wherefore, she respectfully applies to this honorable Court, [or, to the said Surro- gate] for the admeasurement of her said dower. Dated. &o. M.R B. F. H., Attorney. DOWER. 227 § 421. Notice to he Annexed to Petition. To \insert the names of the heirs or owners :] Please take notice that a petition of which the above is a copy, ■will be presented to \name the Court or Surrogate,"] on the day of ) 18 , at, &c., and that a motion will then and there be made to grant the same. Dated, &c. M. B. R. F., Attorney. § 422. Notice by Heirs or Owners, if Widow does not Apply. To M. B., widow of, &e.: \or if she has a second husband, address it to both:] Please take notice, that the subscribers, who, as heirs of A. B., deceased, [or, as owners,] claim a freehold estate in and to the fol- lowing real estate, [description,'} require you to demand your dower therein, within ninety days after the service of this notice. Dated, &C. [Signatures.} § 423. Petition by Heirs or Owners. To, &c., [as in § 420, to the * and then continue as follows .-] 'The petition of, &c., [naming the heirs,} heirs of A. B., deceased, late of, &c., [or, owners of the real estate hereinafter mentioned, for merly belonging to A. B., of, &o.,] respectfully showeth : That the said A. B., died on, (fee, at, &c., leaving an estate in fee belonging to him when he died, in and to all, [description;} in wliich said pre- mises M. B., the widow of the said A. B., is entitled to dower ; that tbe said M. B., has not had her dower therein assigned to her within ninety days after the decease of her said husband, nor at any time since ; nor has she made any application, or instituted any proceed- ings, for the recovery of the said dower : wherefore, the undersigned petitioners respectfully apply to this honorable Court [or, to the said Surrogate] for the admeasurement of the dower of the said M. B. Dated, &c. [Signatures.} § 424. Order for Adm^astirement of Dower. On hearing Mr. D. W., for M. B., widow of, &c., and Mr. C. M., in opposition thereto, and on reading and filing the petition of, &c., and the notice accompanying the same, and an affidavit of the due ser vice of the said petition and notice on [name the persons;} this court doth order admeasurement to be made of the dower of the said M. B., in and to [describe the lands;} and C. D., E. R, and L. M., three reputable and disinterested freeholders, are hereby appointed com- missioners for the purpose of making the admeasurement herein di- 228 • NEW CLERK'S ASSISTANT. rected, and are required to make report of their proceedings therein to this court, with all convenient speed. D. W., for the widow. C. M., in opposition. § 425. Oath of Commissioners. We, C. D., E. R, and L. M., appointed commissioners by a rule, [or, order,] a copy whereof is hereunto annexed, do swear that we will faithfully, honestly and impartially, discharge the duty, and exe- cute the trust reposed in us by the said appointment Sworn to, this day of , ) 0. D., ) 18 , before me, J E. F., >■ Commissionersw G. H., Justice of the Peace. L. M., ) § 426. Riport of the Oommissioners. To [the Court, or Surrogate :'\ We, the undersigned, appointed commissioners, under and by vir- tue of a rule, [or, order,] a copy whereof is hereunto annexed, do respectfully report, that we proceeded to admeasure and , lay oftj as speedily as possible, after the said rule or order, the one-third part of the lands embraced in the order for our appointment, as the dower of M. B., named therem, designating- such part with posts, [or, with stones ; or, with permanent monuments ;] and in doing so, we took into view the permanent improvements made on the said lands by any heir, guardian of minors, or other owners, since the. death of the husband of the said M. B., [or, since the alienation thereof by the [first] husband of the said M. B.,] and we found it [not] practicable to award such improvements within that part of the said lands not allotted to the said M. B. : [If not practicable, add: and therefore we made from the lands allotted to the said M. B., a deduction pro- portionate to the benefit she will derive from such part of the said improvements as is included in the portion assigned to her.] We fur- ther report, that we employed 0. P., a sworn and skillful surveyor, with necessary assistante, to aid us in making the said admeasure- ment; and we further report, that [insert afvR and ample statement of the proceedings, with the quality, courses and distances, of the land admeasured aud allotted to the widow, a description of the posts, stones, or other permanent monuments thereof, and the items of tlie commissioners' charges.^ Given under our hands, at, sufficient for the purposes intended. A. B., Supervisor. ®' ^■' '■ Justices. &a., &c. 4' § 483. Idcensefor Tavern Keeper, under Act of 1843. We, the undersigned, forming a board of Commissioners of excise for the town of , in the county of , having been ap- plied to by C. D., a resident of said town, who purposes to keep an inn or tavern at , in the said town, for a license to keep such tavern, without including a license to sell strong or spirituous liquors, vrines, or alcoholic drinks; and being satisfied that he is of good moral character, and of sufficient ability to keep a tavern, and that he has the necessary accommodations to entertain travellers, and that a tavern is absolutely necessary for the actual accommodation of tra- vellers, at the place where he purposes to keep the same ; we do therefore grant this license, and authorize him to keep an inn or tav- ern at the place above mentioned ; provided, however, that no strong or spirituous liquors, wines, or alcoholic drinks, shall be sold by the said C. D., under or by virtue hereof This license is to be in force until the day after the first Monday in May next. In witness, &c., \as in § 431.] § 434. Bond for Obtaining License, mider Ad of 1843. Know all men, &c., \as in § 432 to the *, and then addr\ Whereas, the said L. M. has applied for a license to keep an inn or tavern in the town of , in the said county of , without including a license to sell strong or spirituous liquors, winesy or alcoholic drinks, in such inn or tavern: Now, therefore, the condition of this obligation is such, that, &c., [as in § 432, to the end.'\ § 435. Grocer's License. We, the underagned, forming a board of Commissioners of excise for the town of , in the county of ■ , having been applied to by 0. P., a resident of said town, who purposes to keep a grocery at , in the said town, for a license to sell strong and spirituous liquors and wines, in quantities less than five gallons, and for which he has paid a duty of dollars, deteiimned by us; and being satisfied that he is of good moral character ; we do there- fore grant this license, authorizing him to sell strong and spirituous liquors and wines, in quantities less than five gallons, but not to be EXCISK 235 drank in his shop, house, out-house, yard or garden , and it is ex- pressly declared, that this license shall not be deemed to authorize such sale of any liquors or wines, to be drank in the house or shop of the SRJd O. P., or in any out-house, yard, or garden, appertaining thereto, or connected therewith. This license is to be in force until the day after the first Monday in May next. In witness, &c., \_asin § 431.] § 436. Qvocer's Bond. Know all men, &c., \_as is § 432 to the *, and then addf\ Whereas, the said 0. P. has applied for a license to sell strong and spirituous liquors and wines, at his grocery, in the town aforesaid : Now, there- fore, the condition of this obligation is such, that if, during the term for which his Ucense shall be granted, he will not suffer his grocery to become disorderly ; that he will not sell, or suffer to be sold, any strong or spirituous Uquors or wines, to be drank in his shop, or house, or in any out-house, yard or garden, appertaining thereto ; and that he will not suffer any such Uquor, sold by virtue of such license, to be drank in his shop or house, or in any out-house, yard, or garden, belonging thereto, then this obligation to be void; else, tc remain in force.' Signed, sealed, &c., [as in § 432.] ' For ibo certificate of approval, we § 432. CHAPTEE XVm. FEES OF OFFICERS. PRACTICAL EEMAEKS. 1. No judicial officer, except Justices of the Peace, can receive, to his own use, any fees or perquisites of office.' 2. No officer, or other person, to whom any fee or compensation is allowed by law for any service, can taiie, or receive, any other, or greater fee or reward, for sucji service, but such as is or may be allowed by law. No legal fee or compensation can be demanded, or received, by any officer or person, for any service, unless such service was actu- ally rendered by him ; but any officer may demand the fee allowed to him by law for any service, for which he is entitled to require payment, before rendering the same.' 3. County Judges and Surrogates are forbidden to perform^ any official services, unless upon prepayment of the fees and perquisites imposed by law.* 4. No fee can be charged by any officer for administering the oath of office to any member of the Legislature, to any Inspector of Elec- tions or to any town officer ; and no more than twelve and a half cents can be charged for administering such oath to any other officer.* 5 Upon the settlement of any execution by a defendant, or upon settling any suit or demand, the Sheriff, or Attorney, claiming any fees which shall not have been taxed, may be required by the defen- dant, on his paying the expense thereof, to have his fees taxed by some proper officer of the court in which the action may be pending, or from which the execution shall have been issued ; otherwise, such fees are not collectible.' 6. If a Justice render judgment for a greater amount of costs than is allowed by law, or for any item of costs, or fees, improperly I Amended Constitution of Hew York, Art f ■ Laws of 1819, chap. 95. TI, 6 20. * 2 E. 8. (8d ed.,) TA S 17. » 2 E. 8. (8d ed.,) T«, §| S, 6 ; 6 Cowen, « 2 K. 8. (8d ed.,) 743, %% 1, 2. (61 ; 16 Wendell, 4.5 ; 28 Id., 67 ; 26 Id., 451 ; 1 Denlo, 658 ; 2 Paige, 475. ' FEES OF OFFICERS. 237 and the same be collected, the person paying the same may recover of the party who shall have received such costs, or fees, the amount thereof, with interest' 7. All Clerks and Reg^ters of counties, claiming any fees by vir- tue of their respective offices, upon being required in writing by tl>e party Uable to pay the same, his agent or attorney, and on payment of the expense thereof, must have their fees taxed by some officer au- thorized to tax costs in the Supreme Court ; and either party may appeal from such taxation to the Supreme Court No Clerk or Re- gister can collect any fees, after having been required as aforesaid, without the same are taxed." 8. In order to entitle a SheriflF, or Constable, to his poundage upon an execution, he must levy the money, or take the body of the de- fendant, except he be prevented by the act of the plaintiff, or the operation of law.' > 9. A Sheriff, or Constable, can only charge mileage for the actual travel, where there are several defendants in one process, who reside at the same place.* 10. Witnesses who do not attend in obedience to a subpoena, are not entitled to fees, and the party paying them can recover back the money.' 11. No town officer is entitled to be allowed any per diem com- pensation for his services, unless expressly provided by law.' 12. No travel fees for travelling to subpoena a witness beyond the limits of the county in which the subpoena was issued, or of an ad- joining county, will be allowed, unless it is made to appear to the board auditing the account, by satisfactory proof, that such witness could not be subpoenaed, without additional travel ; nor will any tra- vel fees for subpoenaing witnesses be allowed, except such as the board shall be satisfied were absolutely necessary.' FORMS § 437. Arbitrator's Fees. No provision is made by statute for the fees of Arbitrators. The usual custom, however, is to charge the same fee allowed to referees >2R. S. (3dcd.)36l, S236. « Laws of 1844, chap. 127. > 6 Johnson, 232; 2 Cowcn, 421. < 1 Wendell, 104. » 5 Wendell, 107; 3 0111, 467; 4 Id., 695. " Laws of 1845, chap, 180, 5 23. ' Laws of 1846, chap. 180, § 27; 1 Denio. 658. KEW CLERK'S ASSISTANT. appointed by a court of record, viz : for each day necessarily spent in the business of the reference, three dollars to each referee, to be paid on making the report, or award, by the prevailing party. A different compensation, however, may be agreed on, in writing, by the parties. ' § 438. Assessor's Fees. For each day actually and necessarily devoted to the service, of the town, one dollar and twenty-five cents. § 439. Auctioneer's Commission. Not exceedmg two and one-half per cent on the amount of any sales,, unless in pursuance of a previous agreement, in writing, between the auctioneer and the owner, or consignee, of the goods or effects sold. § 440. Broker's Fees. Fifty cents for brokage, soliciting, driving, or procuring, the loan or forbearance of one hundred dollars for one year, and in that pro- portion for a gTcater or lesser term. Thirty-eight cents for making or renewing any bond, bill, note, or other security, given for such loan or forbearance, or for any counter bond, bill, note, or other security, concerning the same. § 441. County Clerk's Fees. For a trial fee, to be paid by the party brining on an action, one dollar. For entering judgment by filing transcript, six cents. For entering judgment in a civil action, fifty cents, except in courts where the clerk is a salaried oflEicer, and in such cases one doUar. For copies of all papers and proceedings in civU actions, five cents for every one hundred words. For every certificate, twelve and a half cents; but not to be allowed for certifying a paper to be a copy, for the copying of which he shall be entitled to compensation. Recording conveyances of real estate, and all other instruments which by law may be recorded, ten cents for each folio. Filing every certificate of the satisfaction of a mortgage, and en- tering such satisfaction, twenty-five cents. Entering a minute of a mortgage being foreclosed, ten cents. Entering in a book the bond of every Collector, twelve and a half cents ; searching therefor, six cents ; entering satisfaction, twelve and a half cents. FEES OF OFFICEKS. 239 Eeceiving and filing every paper deposited with him for safe keep- ing, three cents; searching therefor, three cents for each paper examined. Receiving and filing the papers of any insolvent, or relating to the proceedings against any absent, concealed, absconding, or imprisoned debtor, twelve and a half cents in each case ; and such papers are not to be charged as having been separately filed : Searching for such papers, six cents for each year for which searches shall be made. Searching and certifying the title of, and incumbrances upon, real estate, ten cents for each conveyance and incumbrance certfiyed by him, instead of fees ; provided that such fees shall in no case amount to less than fifty cents, nor more than five dollars. Searching the docket of judgments and decrees, five cents a year, and twelve and a half cents for the certificate. (See 3 Denio, 171.) Searches preparatory to making the loans authorized by the act providing for the loan of certain moneys belonging to the United States deposit fund, three dollars ; except where the regular fees would be less than that simi. Filing each chattel mortgage, or copy, six cents; six cents each party, for entering; searching for such papers, sue cents each; and the same fees for certified copies, as for copies of records. To the Clerk of the pounty of Rensselaer, six cents for filing a chattel mortgage, or copy, and six cents each name for docketing. Filing and entering a specification, or copy of a contract, in the mechanics' and laborers' lien docket, eighteen cents. For an execution issued under the mechanics' and laborers' lien law, one dollar. For services upon the first application of an alien, including the oath or aflBrmation of intention to become a citizen, record and certi- ficate thereof delivered to him, twenty cents. For all the services requisite upon the completion of the proceed- ings of an alien to become a citizen, including the record and a cer- tificate, fifty cents. Determining and certifying the sufficiency of the sureties of any Sheriff, fifty cents. For every report upon the title of the parties in partition, pursuant to a reference for that purpose, one dollar. For every report respecting the incumbrances upon the estate or interest of any party in partition, pursuant to a rule or order for that purpose, one dollar. Investing the proceeds of the sale of any estate, under proceed- ings in partition, pursuant to the order of the court, one-half of one per cent, upon any sum not exceeding two himdred dollars, and one- quarter of one per cent for any excess. Receiving the interest on such investments, and paying over the same to the persons entitled, one-half of one per cent 240 NEW CLERK'S ASSISTANT. For attendance in canvassing the votes given at any election, two dollars. Drawing all necessary certificates of tte residt of such canvass, eighteen cents for each folio; and nine cents each folio for the neces- sary copies thereof 1 Recording such certificates, the same fees as are allowed for re- cording deeds. For making and transmitting certified copies of the returns of Town Superintendents of common schools, six cents for each folio, to be paid by the county. Giving notice to the Governor, of persons who have taken the oath of office, three cents for each name. Giving such notice of persons who have neglected to take the oath of office, or to file or renew any security, within the time required by law, and of any vacancy created by any officer dying or removing out of the county or place for which he was appointed, and of all other vacancies in the county, six cents for each name reported. Notifying every person appointed to office, twenty-five cents ; and all expenses actually and necessarily incurred in giving any notice, which the Comptroller shall deem reasonable. Searching for a bail piece, and annexing it to the recognizance roll, twelve and a half cents. Recording every certificate of incorporation, authorized by law to be recorded, seventy-five cents. Entering in the minutes of a court a license to keep a ferry, and for a copy thereof, one doUar; and for taking and entering the recog- nizance, twenty-five cents. For administering an oath or affirmation, in cases where no fee is specially provided, and the certificate, twelve and a half cents. Sweaiing a witness in the Court of Oyer and Terminer, and Court of Sessions, six cents. Entering, or respiting a recogniaance in said Courts, twelve and a half cents. Calling and swearing a jury in the same, nineteen cents. Entering a sentence in the minutes, twplve and a half cents ; and the like fee for every certified copy thereof, and for a transcript thereof for the Secretary of State. For copies of records, indictments, and other proceedings, the like fees as are allowed in civil cases for copies of papers filed in his office. For taking the acknowledgment of satisfaction of a judgment in the County Court, thirty-seven and a half cents. § 442. Clerk of the Board of Supervisors. A reasonable compensation for his services, to be fixed by the board, and to be paid by the county. FEES OF OFFICERS. 241 For a certified copy of any account on file in his office, six cents for every folio of one hundred and twenty-eight words. § 443. Commissioners to take Testimony, to be read in Justices' Courts For taking and returning the testimony on a commission, whether issued to one or more commissioners, one dollar. For every subpoena, or oath, six cents. For serving subpcenas to appear before commissioners, the same fees as are allowed in Justices' Courts. § 444. Commissioners to make Partition, or to Admeasure Dower. For every day's actual and necessary service, two dollars to each commissioner. § 445. Commissioner of Deeds. For administering an oath or affinnation, and certifying the same when required, twelve and a half cents. For taJdng the acknowledgment of bail in the Supreme Court, and in any Coimty Court, or Mayor's Court, twenty-five cents. Taking the acknowledgment of satisfaction of a decree or judgment, in the Supreme Court, any County Court, or Mayor's Court, thirty- seven and a half cents. Taking and certifying the acknowledgment, or proof, of any con- veyance or mortgage of real estate, or any instrument concerning real estate, which by law may be recorded, — for one person, tyenty- five cents, and for each additional person, twelve and a half cents ; (Laws of 1847, chap. 339;) but when a lease and release of the same premises executed at the same time, they must be considered as one conveyance. Taking an acknowledgment of a power of attorney to appear in a .Justice's Court, iwenty-five cents. § 446. Commissioners of Excise. One dollar and twenty-five cents to each Commissioner, for one day's attendance only, at the Board of Excise, during anyone year; to be allowed and paid, as other town charges. § 44V. Commissioners of Highways. For each day actually and neccessarily devoted to tlie service of the town, one dollar. K 343 NEW CLERK'S ASSISTANT. § 448. Commissioners to Loan United States Deposit Fund. Such Commissioners may retain, out of the interest moneys coming into their hands, the following per centage on the money committed to their charge, as a compensation for their ' services : upon twenty- five thousand dollars, or a less sum, three-quarters of one per cent ; upon the fm-ther sum of twenty-five thousand dollars, or less, half of one per cent. ; and where the whole sum shall exceed fifty thou- sand dollars, half of one per cent, except in the city and county of New York, in which city and county the commissioners shall, upon all sums exceeding fifty thousand dollars, be permitted to retain only one-quarter of one per cent § 449. Constables' Fees. For serving a warrant or summons, twelve and a half cents. For a copy of every summons delivered on request, or left at the dwelling of the defendant, in his absence, nine cents. Serving an attachment, fifty cents ; for a copy thereof, and of the inventory of the property seized, left at the last residence of the de- fendant, fifty cente. Serving an execution, or levying any fine or penalty pursuant to any warrant, five cents for every dollar collected, to the amount of fifty dollars ; and two and a half cents for every dollar collected over fifty dollars. For every mile, going only, more than one mile, when serving a summons, warrant, attachment, or execution, six cents: to be com- puted from the place of abode of the defendant, or where he shall be found, to the place where the precept is returnable. Nstifying the plaintiff of the ■ser^'ice of a warrant, twelve and a half cents; and for going to the plaintiff's residence, or where such notice was sei-ved, six cents for every mile more than one. Summoning a jury, fifty cents. Serving a subpoena, twelve and a half cents for each witness served ;■ but no allowance wiU be made in any judgment, for service upon more than four witnesses in any cause. Serving a summons in special proceedings in civil cases, twelve and a half cents ; serving a warrant, nineteen cents ; mileage, for going only, six cents for each mile. Advertising and selling any property distrained doing damage; or levying any fine, penalty, or sum, pursuant to any warrant ; the same fees as are allowed on executions from Justices' Courts. Arresting and committing any person, pursuant to process in spe- cial proceedings in civil cases, fifty cents ; and mileage, for going only, six cents. Attending any court, pursuant to a notice from the Sheriff, one dollar and fifty cents a day in the city of New York, and one dollar ■'■;J FEES OF OFFICERS. 2-1 j and twenty-five cents a day in eaoli of the other counties of this State, to be paid by the county. Serving a waiTant, or other process, for the arrest of any person, in criminal cases, fifty cents ; and the same fees for mileage as are allowed on warrants in civil cases.' Taking a defendant in custody on a ndttimus, twelve and a half cents. Conveying a person to the magistrate or court before whom he is to be brought, or to jail, twelve and a half cents, if within one mile ;« and for every other mile, going only, six cents. For traveling to subpoena witnesses on behalf of the people, such fees as the board auditiig the account shall be satisfed were indispen- sably nesessary. For other services in criminal cases, for which no compensation is specially provided by law, such sum as the board of Supervisors of the county shall allow. For summoning a juiy under the provisions of the Bevised Sta- tutes in relation to the assignment of the estates of non-resident, ab- sconding, insolvent, or imprisoned debtors, one dollar and twelve and a half cents. For summoning a jury to re-assess the damages for laying out, altering, or discontinuing a road, if from the same town, one dollar ; if otherwise, two dollars. For other services, not enumerated above, which may be rendered by a Constable, the same fees as are allowed by law to Sherifls for ainilar services. For serving a summons ip the city of Albany on one defendant, and notifjing the plaintiff of trial, thirty-seven and a half cents ; and twenty-five cents more for service of summons on every other defend- ant named in the same summons ; serving a warrant in a civil suit in the same city, on one defendant, and notifying plaintiflF, fifty cents ; and thirty-seven and a half cents for every additional defendant named in the same warrant. § 450. Coroner's Fees. For holding an inquest, and the necessary incidental expenses, such compensation as shall be allowed by the board of Supervisors of the county. For all other services rendered by them, the same fees as are al- lowed to Shenfis for similar services. For confining a Sheriflf in any house, on civil process, two dollars 1 A Constable is not entitled to mileage, unless the party is arrested, even though he case not be found. ( 1 Denio. 658.1 244 NEW CLERK'S ASSISTANT. for each week, to be paid by such Sberiff before be sLaU be entiiiled to be discharged. § 451. County Judges, in Special Cases? For every day employed in the hearing and decision of appeals in relation to highways, two dollars, to be paid by the party appealing, where the determination of the Commissioner, or Commissioners, shall be affirmed. Taking the acknowledgment of a satisfaction of judgment, thirty- seven and a half cents. Taking a bond in any case required or authorized by law, thirty- seven and a half, cents. Deciding on the sufficiency of sureties, and certifying such suffi- ciency when it shall appear, fifty cents. Administering an oath or affirmation, and certifpng the same when required, twelve and a half cents. Taking the acknowledgment of bail, twenty-five cents. Taking and certifying the acknowledgment, or proof, of any con- veyance or mortgage of real estate, or any instrunient concerning real estate which by law may be recorded, the same fees as are al- lowed to Justices of the Peace for similar services. ( Laws of 1847, chap. 339.) Receiving and filing every petition, and the affidavits, schedtdes and papers, accompanying the same, upon any apphcation made pur- suant to the provisions of the statute in relation to the assignment of the estates of absconding, concealed, non-resident, insolvent, or im- prisoned debtors, two dollars.*. For every order, warrant, certificate, or appointment, of trustees or assigns, in such proceeding, thirty-seven and a half cents. Presiding at and conducting any trial by a jury, swearing such jury, receiving and entering their verdict, or dischai'ging them, two dollars ; but not to extend to any trial or inquest in any action at law. Deciding on the propriety of directing an assignment of the estate ■of any insolvent, or imprisoned, absent, concealed or absconding debtor, two dollars. Signing the discharge of any insolvent or imprisoned debtor, one dollar. For every order, warrant, or attachment, made or issued in any special proceeding authorized by law, thirty-seven and a half cents. 1 The fees received by the County .Tudge, after deducting his salary, are to be paid over 10 the County Treasurer, on the first Monday of May, and November; (Laws of 1847, chap. 277, §§ 8, 9 ; Laws of 1SJ9, chap. 95,)and an account thereof, verified by afTidavit, jsto be rendered to the board of Supervisors at their annual meeting. FEES OF OFFICERS. C:5 For every notice to any party, oflEicer, or person, required to be given by law, twenty-five cents. For services under the non-imprisionment act, the same fees as are allowed by law in proceedings against absconding, concealed. Or non- readent debtors. For attendance upon any special matter, where no fee is specially provided for the. service rendered, twenty-five cents. Admitting any person to prosecute as the next friend, or to defend as the guardian, of an infant, nineteen cents. Every necessary order upon any special application, twenty-five cents. For attendance on taking any depositions, upon any inquiry insti- tuted by the Governor, relating to the official misconduct of any offi- cer, two dollars for each day necessarily occupied. Issuing any summons or process of subpoena, to compel the attend- ance of any witness in any proceeding before such Judge, twenty-five centa For every attachment, or warrant of commitment, against a wit- ness or any other person, in a civil proceeding, twenty-five cents. For warrant of restitution, or to put any party in possession of lands, thirty-seven and a half cents. Taking an acknowledgment of a power of attorney to appear in a Justice's Courtj twenty-five cents. For services in criminal cases, not specially provided for, the same fees as are allowed to Justices of the Peace for similar services. § 452. County Speriniendents of the Poor. Such sum, for their actual attendance and services, as the board of Supervisors of their county shall deem reasonable. § 453. Cownty Treasurer's Fees. Such commission, for receiving and paying out all moneys, as the board of Supervisors may fix, not exceeding one-half of one per cent, for receiving, and the same for paying; but the gross amoimt shall in no case exceed' five hundred dollars per annum. This re- striction does not extend to the counties of New York, Albany and Kings. The treasurer of Monroe county receives an annual salary, to be fixed by the board of Supervisors, not exceeding the half of one per cent for receiving, and the half of one per cent for disburs- ing, or eight hundred dollars in the aggregate. For receiving moneys m securities transferred to him by the clerk of the court of appeals, one half of one per cent, and for paying out the same, one half of one per cent. For services as administrator, in the cases provided by law, his 246 HEW CLEEK'S ASSKTA^T. reasonable expenses necessarily incurred ; and double the commis- sions allowed to executors and administrators. For every warrant issued under the act taxing the rents of land- lords, in certain cases, one dollar. § 454. Crier's Fees. For attendance upon the Supreme Court, two dollars for each day, to be certified by the Clerk of the Court. Attendance upon other court, one doUar and fifty cents for each day, to be certified by the Clerk. § 455. Executors' and ^Administrators' Fees. A reasonable compensation for the sei-vices of the appraisers ap- pointed upon their application, to be allowed by the Surrogate. For receiving and paying out all sums of money not exceeding one thousand dollars, five per cent, on every dollar. For receiving and paying out all sums exceeding one thousand, and not less than five thousand dollars, two and a half per cent. For receiving and paying out all sums exceeding five thousand dollars one per cent' For every deed prepared aand executed by them, on the sale of any real estate made by order of the Surrogate, two 4pUars ; and a compensation not exceeding two dollars a day, for the time necessa- rily occupied in such sale. Such allowance for all actual 'and necessary expenses as shaE be just and reasonable. , § 456. Fence Viewer's Fees. For every mile of travel by a Fence Viewer, from his house to the place where the strays are kept, six cents; and twenty-five cents for a certificate of the charges ; to be paid by the owner of the strays, or the person applying for the certificate. Such compensation for all other services required by law, as may be fixed by the town meetings of their respective towns. § 457. Juror's Fees. Foi attending to serve as such, in a Justice's Court, although not sworn, six cents; for attending and trying a cause, twelve and a half cents. 1 If there te more than one Executor or I according to the eervicea rendered by them administrator, th<» allowances are to be ap- respectively. (Laws of 1849, chap. 160.) portioned amuug them by ine Surrogate, | " FEES OF OFFICEKS. 2-^ Co each juror impanneled to try a cause in any Circuit Couit, County Court, or Mayor's Court, twenty-five cents for eacli cause, to be paid by the party noticing the cause for trial ; or if noticed by both Darties, to be paid by sucli party as the court shall direct; ex- cept that in the county of Albany, the fees of the jury are to be paid to the County Clerk. For attending the courts of record in any county, either as a grand or petit juror, such allowance to each juror as the board of Supervi- sors may direct; not exceeding one dollar per day,* and three cents per mile for traveling, in coming to and returning from such courts, to be paid by the County Treasurer, on the certificate of the Clerk. To each petit juror in the county of Albany, who shall be sworn and serve as such, for attending any Circuit Court, Court of Oyer and Terminer, County Court, or Court of Sessions, one doUar per day -for every day's' attendance, and seventy-five cents for every twenty miles travel: grand jurors in the county of Albany are enti- tled to the same compensation as m other counties of the State. To each juror in the city of New York, twelve and a half cents, for every action ifi which he is sworn as such in any court of record. To eax;h juror sworn before any officer in any special proceeding allowed by law, or before any Sheriff upon any writ of inquiry, or to try any claim to personal property, twelve and a half cents. To each juror sworn in any proceeding authorized by the provis- ions of the statute in relation to absconding, concealed, non-resident, insolvent, or imprisoned debtors, twenty-five cents. To each juror attending and serving on a jury to re-assess dama- ges for laying out, altering, or discontinuing, a highway, if from the same town, fifty cents ; if from an adjoining town, one dollar. To each juror attending, in piirsuance of a summons, but not serving on a jury, to re-assess the damages for laying out, altering, or discontinuing a highway, if from the same town, twenty-five cents ; if from an adjoining town, fifty cents. § 458. Justices of the Peace. For a summons, nine cents ; but no more than two summons to be included in the costs in a judgment against any defendant. For a warrant in civil actions, twelve and a half cents , an attach- ment or execution, nineteen cents. Every adjournment, except when made by the Justice on his own motion, nine cents. For a subpcBna, six cents ; administering an oath, six cents. For filing every paper required to be filed with him, three cents ; but not to be allowed for filing any written complaint, pleading, or process, in any cause. 218 KEW CLERK'S ASSISTAST. For a venire, nineteen cents ; swearing a jury, twelve and a haif eents. Entering a judgment, twenty-five cents; for a transcript thereof twenty-five cents. ' Taking every bond or other written security in civil actions, if drafted by the Justice, twenty-five cents. For making a return upon an appeal, one dollar. For a warrant- in criminal cases, nineteen cents; to be paid by the complainant, before issuing any warrant for assault and battery, if required by the Justice. For a bond or recognizance, twenty-five cents. Commitment for want of bail, nineteen cents. For a venire to summon a jury before a Court of Special Sessions, twenty-five cents; swearing such jury, twenty -five cents; trial fee or attendance, one dollar ; warrant of commitment on conviction, twenty- five cents ; drawing a record of conviction and filing the same, seventy- five cents ; but aU such charges shall not exceed five dollars in any one case. Taking security from any person to prosecute a certiorari, upon t, conviction made by a Court of Special Sessions, twenty-five cents ; making a return to such certiorari, two dollars, to be paid by the county. For every order for a commission to examine witnesses, attending, settling, and certifying interrogatories, to be annexed to the commis- sion, fifty cents.' Taking the acknowledgment of any written authority to appear by attorney in a Justice's Court, twenty-five cents. For a copy of the process, pleadings and proofs, in any cause wherein judgment was rendered by default, and in the absence of the party against whom the same was rendered, when required by any person interested therein, twenty-five cents for the transcript, and six cents a folio for the residue thereof. Administering an oath or affirmation, in special cases, and certify- ing the same when required, twelve and a half cents. Taking the acknowledgment of bail in the Supreme Court, and in any County Court, or Mayor's Court, twenty-five cents. Taking the acknowledgment of satisfaction of a decree in Chan- cery, or of a judgment in the Supreme Court, County Court, or Mayor's Court, thirty-seven and a half cents. Taking the proof or acknowledgment of a written instrument to be read in evidence, or of a conveyance or mortg-age of real estate, and certifying the same, for one person, twenty-five cents ; and for each additional person, twelve and a half cents. 1 The costs of a commission are to be included in the costs of the smt, though the gross amount exceed five dollars. FEES OF OFFICERS. 240 For swearing each witness on taking such proof or acknowledgment, six cents. Endorsing a warrant issued from another county, twelve and a half cents. For a summons for any oflFence relating to the internal police of this State, or in any special proceedings to recover possession of land, or otherwise, twenty-five cents. For a precept to summon a jury in special cases, thirty-seven and a half cents ; swearing such jury, twenty-five cents. Hearing the matter concerning which such jury is summoned, fifty cents ; receiving and entering their verdict, twelve and a half cents. For a view of premises alleged to be deserted, fifty cents. For one day's attendance upon the Board of Excise, one dollar and twenty-five cents. For attendance at town meetings, one dollar and twenty-five cents. For other services performed by Justices of the Peace, not speci- ally provided for by law, such compensation as may be allowed by the board auditing their accounts. For attending the Courts of Oyer and Terminer and Sessions, two dollars each day, and six cents per mile travel fee in going and re- turning. But one allowance of travel is to be made at any one term. § 459. Notary's Fees. For the protest, for non-payment, of any note, or for the non- acceptance or non-payment of any bill of exchange, check or draft, and giving the requisite notices and certificates of such protest, in- cluding the notarial seal, if affixed thereto, seventy-five cents; and Notaries are required to furnish, under seal, the certificate authorized to be introduced as presumptive evidence in actions at law, free of expense. Drawing and copy of every other protest, seventeen cents for every folio ; and for sealing the same, twenty-five cents. Taking an oath or affirmation, and certifying the same, twelve and a half cents. Drawing any affidavit, or other paper or proceeding, not otherwise provided for, twenty-five cents for each folio; and twelve and a half cents per folio for a copy thereof § 460. Overseers of the Poor. For every day actually and necessarily devoted to the service of the town, one dollar to each Overseer; and all such necessary expenses as may be incurred in the discharge of their duties, to be allowed by the board auditing their accounts. 250 NEW CLERK'S ASSISTANT. • § 461. Overseers of Highways. For any excess of work over and above liis assesmeni^ performed by an Overseer of Highways, seventy-five cents per day. § 462. Poimdmaster's Fees. « For taking into the pound and discliarging tberefrom, every horse, ass, or mule, and all neat cattle, twelve and a half cents each; for every sheep or lamb, three cents ; and for every hog, six cents. For feeding any beasts distrained doing damage, bis reasonable charges, not exceeding six cents for each beast for every twenty-four hours. § 463. Printer's Fees. For publishing notices of any application by an insolvent, under the provisions of the fifth chapter of the second part of the Revised Statutes, and furnishing the evidence of such publication for six weeks, one dollar and sixty-seven cents ; if published ten weeks, two dollars. Publishing any other notice, or any order, citation, summons, or any other proceeding or advertisement, required by law to be pub- lished in any newspaper, not more than fifty cents per folio for the first insertion, and twenty cents per folio for each subsequent inser- tion after the first. Posting a copy of a notice of mortgage sale on the door of the court house, one dollar. § 464. .Referees' Fees. For each day necessarily spent in the business of the reference, three dollars to each, to be paid on making their report, by the pre- vailing party. Parties, however, may agree, in writing, on a difie- rent compensation. (Laws of 1849, chap. 438, Part II., Title X, §313.) _ Referees, to whom any question in regard ta the laying out, alter- ing, or discontinuing a highway, is referred, are entitled to two dol- lars per day each ; to be paid by the party appealing, if the decision of the commissioner is sustained, but if reversed, by the county. § 465. Register of Deeds in tlie City of New Yorh. The same fees as are allowed by law to County Clerks, for similar services performed by them. For filing a chattel mortgage, or a copy thereof, six cents; for FEES OF OFFICERS. 251 entering the same, six cents for every party to such instrument; searching for each paper, six cents ; and the like fees for certified copies of such papers as are allowed to County Clerks for copies of records. § 466. School District Collector's Fees. One per cent on all taxes voluntarily paid in, during the first two weeks after receiving a tax list and warrant; and five per cent, on all sums collected after that time. Where a le^'y and sale is made, the Collector is entitled to travel- ing fees at the rate of six cents per mile, computing the distance from the school house in the district § 46Y. Sealers of Weights and Measures. For sealing and marking every beam, twelve and a half cents. Sealing and marking measures of extension, at the rate of twelve and a half cents per yai-d, not to exceed fifty cents for any one mea- sure. Sealing and marking every weight, three cents. Sealing and marking liquid and dry measures, if the same be of the capacity of a gallon, or more, twelve and a half cents; if the same be of less than a gallon, three cents. Reasonable compensation for making such weights and measures conform to the standard. § 468. Sheriff's Fees. For serving a writ summons, complaint or demand, by which a suit shall be commenced in a court of law, fifty cents. Traveling in making any such service, six cents per mile, for going only, to be computed in all cases from the court house of the county ; and if there bo two or more court houses, to be computed from that which shall be nearest to the place where the service shall have been made, except that in the county of Oneida such travel shall be com- puted from the court house in Whitestown. Taldng a bond on the arrest of a defendant or taking his endorse- ment of appearance, or for taking a bond in any other case, where he is authorized to take the same, for which no fee is otherwise pro- vided, thirty -seven and a half cents ; and for a certified copy of such bond, twenty-five cents. Returning a process, twelve and a half cents. Serving an attachment for the payment of money, or' an execution for the collection of money, or a warant for the same purpose, issued 252 NEW CLERK'S ASSISTANT. by the Comptroller, or by any County Treasurer, for collecting the sum of two hundred and fifty dollars, or less, two cents and five mills per dollar; and for every dollar collected, more than two hundred and fifty dollars, one cent and two and a half mills. Advertising goods or chattels, lands or tenements, for sale, on any execution, two doEars; and if the execution be stayed or settled, after advertising and before sale, one dollar ; and all legal fees paid for publishing an advertisement or postponement of the sale of real estate. For drawing every certificate on the sale of real estate, by virtue of an execution, twenty-five cents per folio ; for two copies thereof, twelve and a half cents per folio; and the Clerk's fee for filing one of such certificates. Drawing and executing a deed, pursuant to a sale of real estate, on an execution, one doEar ; to be pai4 by the grantee in such deed. Serving a writ of possession or restitution, putting any peS-son en- titled into the possession of premises, and removing the tenant, one doEar and twenty-five cents ; and the same compensation for travel- ing to serve the same, as is allowed on the service of a summons. Taking a bond for the Eberties of the jail, thirty-seven and a half cents. Summoning the jury to attend any court, fifty cents in each cause noticed for trial at such court, or placed on the calendar thereof for trial. Summoning a jury in any case where it shall become necessary to try the title to any personal property, attending such jury, and making and returning the inqidsition, one dollar and fifty cents. Summoning a foreign or special jury, pursuant to a venire for that purpose, and returning the panel, one dollar and twelve and a half cents. Summoning a jury, pursuant to any precept or summons of any officer in any special proceeding, one doEar ; and for attending such jury, when required, fifty cents. Bringing up a prisoner upon a haieas corpus, to testify or answei in any court, one doEar and fifty cents ; and for traveling, twelve and a half cents for each mile from the jail. Attending before any officer with the prisoner, for the purpose of having him -surrendered in exoneration of his bail ; or attending to receive a prisoner so surrendered, who was not committed at the time ; and receiving any such prisoner into his custody, in either ease, one doEar. Attending a view, one dollar eighty-seven and a half cents per day ; going and returning, one dollar and twenty-five cents per day. Serving an attachment against the property of a debtor, under the provisions of the statute concerning absconding, concealed, non-resi- dent, and fraudulent debtors, or against a sliip or vessel, fifty cents. FEES OF OFFICERS. 253 with such additional compensation for his trouble, and expenses in taiing possession of and preserving the property attached, as the offi- cer issuing the process shall certify to be rejisonable; and where the property attached shall afterwards be sold by the Sheriff, he shall be entitled to ihe same poundage on the sum collected, as if the sale had been made under an execution. Making and returning an inventory and appraisal, such sum for the appraisers as the officer issuing the attachment shall certify to be reasonable, not exceeding one dollar per day to each appraiser. Drawing such inventoiy, twenty-five cents per folio ; and twelve and a half cents per folio for the copy thereof. SelUng any property so attached, and advertising such sale, the same allowance as for sales on executions. Executing any wai-rant to remove any person from lands belong- ing to the people of this State, or to Indians, such sum as the Comp- troller shall audit and certify to be a reasonable compensation. Giving notice of any general or special election, to the Supervisor, or one of the Assessors, of the diflferent towns and wards of his county, one dollar for each town or ward, and the expenses of pub- lishing the notice as required by law, to be paid by the county. For any services which may be rendered by a Constable, the same fees as are allowed to Constables for such services. For any person committed to prison, and every person discharged therefrom, in civil cases, twenty-five cents for receiving, and twenty- five cents for discharging, to be paid by the plaintiff in the process. Summoning Constables to attend the Supreme Court, or any other court, fifty cents for each Constable. Attending the Supreme Court, two dollars pei day.' For mileage on every execution, six cents per mile for going only, to be computed from the court house. For serving executions issued by the Clerk of the County, upon a "judgment rendered by a Justice of the Peace, the same fees as- are allowed to Constables in the like cases. Taking into his possession any wrecked property, and selling the same at public auction, his reasonable expenses, to be settled and allowed by the Judge making the order of sale. Summoning a jury in any case, under the provisions of the statute relating to absconding, concealed, non-resident, insolvent, or impri- soned debtors, one dollar and twelve and a half cents, to be paid by the creditors. Making the report required by law, after the adjournment of any Criminal Court of Record in his county, a reasonable compensation, to be allowed by the Board of Supervisors. For every person committed to prison in criminal cases, thirty-seven > A .SherifT is not entitled to a per diem I Courtof Sessions, in ilia own county. (2 Hill) cornntjijsation, for attending eitlier tiie Cir- 411.) cuitjOyer and Terminer, County Court, or | ~5 1 KEW CLEEK'S ASSISTANT. and a half cents ; for eveiy prisoner discharged, thirty-seven and a half cents. Summoning a grand (jury for a Court of Oyer and Terminer, or Court of Sessions, ten doUai-s. For conveying a single convict to the State Prison, or houses of refuge, for each mile frorn the county prison from which such con- vict shall be conveyed, thirty-five cents. For conveying two convicts for each mile aforesaid, forty-five cents ; three convicts, fifty cents ; four convicts, fifty -five cents ; five convicts, sixty cents; and for all additional convicts, such reasonable allow- ance as the Comptroller may think just; which said allowance, with one dollar per day for the mainteinance of each convict, whilst on the way to the State Prison, but not exceeding one doUar for every thirty • miles travel, will be in full of all charges and expenses in the pre- mises. For selling land and executing conveyances, in pursuance of the decree of a Court of Record, the same fees as upon sales by execution ; but such fees are in no case to exceed ten dollars. If the party, in whose favor the decree is made, bids the whole amount of the sale, or any part of it, or if the whole amount, or any part, be credited on the decree, the fees of the Sheriff .must be estimated on the surplus, over and above the sum so bid, or credited ; but if the fees in such case would be less than five dollars, and if estimated on the whole amount bid on the sale would have exceeded that sum, the Sheriff wUl be entitled to five dollars.^ § 469. Supervisor's Fees. For one day's attendance upon the Board of Excise in his town, one dollar and twenty-five cente. When associated with the Town Superintendent in the erection or alteration of a school district, one dollar and twenty-five cents per day. Two dollars per day to each Supervisor, for attending the meetings of the board. For all necessary travel in the discharge of his official duties, eight cents per mile. - For making a copy of the assessment roll of the town, and making out the tax bill to be delivered to the Collector, three cents each name, for the first one hundred names ; two cents per name for the second hundred names ; and one cent per name for each name over two hundred. But a Supervisor is not entitled to the per diem allowance, while employed in copjdng the assessment roll, and making out the tax bill. ' See Lawa of 1817. chap. 280, § 77. TEES OF OFFICERS. 255 § 470. Surrogate's Fees.' Drawing proof of a will when contested, or any other proceeding before him, for which no specific compensation is provided, fifteen cents for every folio. Drawing every petition in any proceeding before him, not other- vrise provided for, including the affidavit of verification, fifty cents. Every certificate of the proof of a wiU, when contested, endorsed ±hereon, including the seal, fifty cents ; and for any certificate upon exemplifications of records or papers filed in his office, or upon the papers transmitted upon appeal, including the seal, fifty cents. Drawing, copying, and approving of every bond required by law, fifty cents. Drawing, copying,- and recording, every necessary paper, and drawing and entering every necessary order, and for rendering every other service necessary to complete proceedings on the appointment of a general guardian for a minor, three dollars ; and for like services in appointing the same person guardian for any other minor of the same family, at the same time, one dollar and fifty cents. Drawing, entering, and filing a renunciation, in cases where the same may be made by law, twenty-five cents. A citation or summons, in cases not otherwise provided for, to all parties in the same proceeding, residing in any one county, including the seal, fifty cents; and for a citation to all parties in any other county, twenty-five cents. A subpoena for all witnesses in the same proceeding, residing in one county, including the seal, twenty-five cents. For every copy of a citation and subpoena furnished by a SuiTogate, twelve and a half cents ; and every such copy of citation shall be signed by the Surrogate. A warrant of commitment or attachment, including the seal, fifty cents. A discharge of any person committed, including the seal, fifty cents. For drawing and taking every necessary affidavit, upon the return of an inventory, fifty cents. For serving notice of any revocation, or other order or proceeding required by law to be seived, twenty-five cents. For swearing each witness, in cases where a gross sum is not al- lowed, twelve and a half cents. For searching the records of his office for any one year, twelve and a half cents ; and for every additional year, six cents ; but no 1 The fees received by the Surrogate, after | 277 j 55 8, 9 ! Laws of 1849, chap. 95 j) and deducting his salary, are to he paid over to | an account thereof, verified by atfic^avn, is to the County Treasurer, on the first Monday of I be rendered to the Board of Supervisors, at May and November, (Laws of 1847, chap. | tlieir annual meeting. 256 NEW CLERK'S ASSISTAlfT. more than twenty-five cents shall be charged or received for any one search. Recording every will, with the proof thereof letters testamentary letters of adrninistration, report of commissioners for admeasurement of dower, and every other proceeding required by law toberecorded, including the certificate, if any, when the recording is not specially provided for by this act, ten cents for every folio. For the translation of any will from any other than the English language, ten cents for every folio. Copies and exemplifications of any record, proceeding, or order, had or made before him, or of any papers filed in his office, transmitted on an appeal, or furnished to any party on his request, six cents for ■every folio, to be paid by the person requesting them. For making, drawing entering, and recording, every order for the sale of real estate, and every final order or decree on the final settle- ment of accounts, one dollar and fifty cents ; and for the confirmation of the sale of real estate, seventy-five cents; and for making, draw- mg, entering, and recording, any other order or decree, when the same is not otherwise provided for, twenty-five cents. Hearing and determining, when the proof of a will, or the right- to administration, or apppointing a guardian, is contested, two dollars. Taking, stating and determining, upon an account rendered upon a final settlement, or determining and deciding the distribution of personal estate, if contested, two dollars for each, day necessarily spent therein, not exceeding three days. For hearing and determining any objections to the appointment of an executor or adnainistrator, or any application for his removal, or for the removal of any guardian, or any application to annul the pro- bate of a wiU,' two dollars. For hearing and determining upon an application, to lease, mort- gage, or sell, real estate, two dollars. For drawing and recording all necessary papers, and drawing and entering all necessary orders on appUcations for letters of administra- tion, when not contested, and for all services necessary to complete the appointment of administrators, and for the appointment of ap- praisers, five dollars: but in cases where a citation is necessary^ seventy-five cents in addition. For investing for the benefit of any minor, any legacies, or the dis- tributive shares of the estate of any deceased person, in the Stocks of this State, or of the United States, one per cent, for a sum not ex- ceeding two hundred dollars, and for any excess, one-quarter of 'one per cent. ; for investing the same on bond and mortgage of real estate, one-half of one per cent, for a sum not exceeding two hun- dred dollars, and one-quarter of one per cent for any excess. For receiving the interest on such investments, and paying over FEES OF OFFICERS. 257 the same for the support and education of such minor, one-half of one per cent. Appointing a guardian to defend any infant who shall be a party to any proceeding, fifty cents ; but where there is more than one minor of the same family, and the same guardian is appointed for all, twenty -five cents for each additional minor ; and no greater or other fee shall be charged for any service in relation to such appointment Hearing and determining upon the report of Commissioners for the admeasurement of dower, one dollar. For distributing any monies brought into his office on the sale of real estate, two per cent ; but such commission shall not in any case exceed twenty dollars for distributing the whole money raised by such sale. But no fee shall be taken by any Surrogate in any case where it shall appear to him, by the oath of the party applying for letters tes- tamentary or of administration, that the goods, chattels, and credits, do not exceed fifty dollars, nor shaU he take any fee for copying any paper drawn by him, or filed in his office, except as above provided. ' For drawing and recording all necessary petitions, depositions, affidavits, citations and other papers, and for drawing and entering all necessary orders and decrees, administering oaths, appointing guardians ad litem, and apointing appraisers, and for rendering every other necessary service m cases of proof of will, and issuing letters testamentary, when not contested, and the will does not exceed fifteen folios. Surrogates shall receive twelve dollars; and where the will exceeds fifteen folios, ten cents per foho for recording such excess, and six cents per folio for the copy of such excess, to be annexed to the let- ters testamentary. For all fees on filing the annual account of any guardian, where the Surrogate shall draw and take the affidavit of the guardian, and for examining such accounts, fifty cents; but where the same shall not be drawn nor taken by him, he shall charge no fees. For any necessary travel required under the law of 1837, con- cerning the proof of wills, &c., (Laws of 1840, chap. 460, § 69,) Surrogates are entitled to ten cents per mile, going and returning. No fees for filing any paper in the Surrogate's office can be re- quired ; neither can any charge be made for drawing, copying, or recording his bill of fees, in any case. § 471. Surveyors Fees. For actual service in survepng, laying out, marking and mapping, any real estate, of which partition shall be made pursuant to law, or of which dower shall be admeasured, two dollars and fifty cents per day. 17 258 . NEW CLEKK'S ASSISTANT. For eacli of his necessary chain and flag bearers, and other neces- sary assistants, one dollar per day. § 472. Town Clerk's Fees. For filing every chattel mortgage, or copy thereof, sir cents ; for entering the names and numbering, six cents ; searching for such papers, six cents each ; and the same fees for certified copies thereof as are allowed to Clerks of counties for copies of records. FUing and entering a certificate of marriage, twenty-five cents ; and ten cents for a copy of the certificate, or of the entry. Entering a note of strays, six cents each for all neat cattle and horses, and three cents for each sheep ; to be paid by the person de- livering the note. For services as Clerk of the town meeting, one dollar and twenty- ' five cents per day. When associated with the Supervisor and Town Superintendent, in the erection or alteration of a school district, one doUar and twenty- five cents per day. Such compensation for his services in behalf of the town, includ- ing those performed as Clerk of the Town Superintendent, as the board auditing his account shall allow. For drawing a jury to re-assess damages for lapng out, altering, or discontinuing a highway, fifty cents. The same fees for advertising and- selling drifted luniber unclaimed, as are allowed to Constables making sales on executions issued out of Justices' Courts. To the Clerk of the town of Qusensbury, for entering every mark of lumber, twenty-five cents. § 473. Town Collector's Fees. For collecting and receiving taxes, one per cent on every dollar, and one cent on every amount of tax under one dollar, if paid within thirty days from the first posting of the notice required by law ; where the aggregate amount to be collected does not exceed two thousand dollars, the collector is entitled to two per cent as his fees, on all voluntary payments made within thirty days. On all taxes remaining unpaid after the expiration of the said thirty days, such compensation as may be voted by the electors at town meeting, not exceedmg five, nor less tlian three per cent For collecting all unpaid taxes, five per cent, and for returning unpaid taxes, two per cent, to be allowed by the County Treasurer. FEES OF OFFICERS. 259 To the Collector of the town of Minerva, in the county of Essex, for travel fees from his place of residence to the office of the County Treasurer, thirty-seven and a half cents per mile ; to the Collectors of the towns of Keene and Schroon, in said coimty, foi the same, twenty-five cents per mile ; but the sum to be paid to either of said Collectors, shall in no case exceed the sum of four per cent, upon ^the amount of the tax on the lands of non-residents, returned by such Collector. § 474. Trustees of Absconding, Concealed, Non-Resident, or Insolvent Debtors. A commission of five per cent on the whole sum which shall liavo come into their hands, and all the necessary disbursments made by them in the dischage of their duty. § 475. Witnesses' Fees. To each witness in a Justice's Court, from the same county, sub- poenaed and attending before a Justice, or before Commissioners ap- pointed by him, twelve and a half cents ; from any other place than the same county, twenty-five cents for every day's actual attendance. For each witness, fifty cents for each day while attending any court or officer, (including Canal Appraisers,) except as othei-wise provided ; and if the witness resides more than three miles from the place of attendance, traveling fees, at the rate of four cents per mile, going and returning. ' For every witness who shall appear and testify before any Justice of the Peace taking depositions to be used in courts in other States, fifty cents. To any person attending a Court of Oyer and Terminer, or a court of Sessions, as a witness in behalf of the people, upon the request of the public prosecutor, or upon a subpoena, or by virtue of a re- cognizance, who is poor, or has come from any other State or Terri- tory of the United States, or from any Foreign country, such reason- able sum for his expenses as the court may direct CHAPTER XIX. FENCE VIEWERS. PRACTICAL REMARKS. 1. The Assessors and Commissioners of Highways elected in any town, are, by virtue of their offices, Fence Viewers of such tciwn.' 2. Whenever any stray has not been claimed and redeemed, witliin the time prescribed by law, it is the duty of one of the Fence View- ers, on receiving notice, to ascertain, according to the best of his icnowledge and judgment, the reasonable charges of Iceeping such stray ; a certificate whereof is to be given to the person applying for the same.^ 3. . In case the person detuning a stray, and the owner thereof, cannot agree as to the charges to be paid, at the time of redeeming such stray, the same may be ascertained and certified by two of the Fence Viewers of the town, to be selected by the former.' 4. When two or more persons have lands adjoining, each of them must make and maintain a just proportion of the division fence be- tween them, except the owner or owners of either of the adjdning lands choose to let such land lie open. When a person has chosen to let his land he open, if he afterwards encloses it, he must refund to the owner of the adjoining land, a just proportion of the value at that time of any division fence that may have been made by such adjoining owner, or build his proportion of such division fence. The value of such fence, and the proportion thereof to be paid by such person, and the proportion of the division fence to be built by him, in case of his enclosing his land, are to be detennined by any two of the Fence Viewers of the town. If disputes arise between the owners of adjoining lands, concerning the proportion of fence to be maintained, or made, by either of them, such disputes may be set- tled by any t*o of the Fence Viewers of the town. When any of 1 1 R. S. (3d ed.) 388, § 8. ' I • 1 R. S. (3d. ed.> 401,S 21. a IR. S. (3d. ed.)401,§23. I FENCE VIEWERS. 211 ihe above mentioned matters are submitted to Fence Viewers, each party may choose one ; and if either neglect, after eight day's notice, to make such choice, the other party may select both. The Fence Viewers must examine the premises, and hear the allegations of the piirlies. In case of their disagi-eement, they may select another Fence Viewer to act with them, and the decision of any two will be final upon the parties to such dispute, and upon all pai-ties holding under them. The decision of the Fence Viewers must be reduced to writing, and contain a description of the fence, and of the propor- tion to be mfiintained by each, and forthwith filed in the office of the Town Clerk' 5, If any person liable to contribute to the erection or reparation of a division fence; neglects, or refuses, to make and maintain his proportion of such fence, or permits the same to be out of repair, he cannot maintain any action for damages incui-red, but will be liable to pay to the party injured all such damages as may accrue to his lands, and to the crops, fruit trees, and shrubbery thereon, and fix- tures connected with the said land, to be ascertained and appraised by any two Fence Viewers of the town, and to be recovered with costs of suit; which appraisement must be reduced to writing, and signed by the Fence Viewers making the same, but will be only pri- ma fade evidence of the amount of the damages. If such neglect or refusal be continued for the period of one month, after request iii writing to make or repair such fence, the party injured may make or repair the same, at the expense of the pai-ty so neglecting or refus- ing, to be recovered from him, with costs of suit' 6. If any person who has made his proportion of a division fence, be disposed to move his fence, and suffer his lands to lie open, he may, at any time between the first day of November in any year, and the fir-st day of April following; but at no other time, give ten days' notice to the occupant of the adjoining land, of his intention to apply to the Fence Viewers of the town for permission to remove his fence ; and if, at the time specified in such notice, any two of such Fence Viewers, to be selected as aforesaid, determine that such fence may with propriety be removed, he may then remove the same. If any such fence be removed without such notice and permission, the party removing the same will be liable to pay to the party injured, all such damages as he may sustain thereby, to be recovered with costs of suit. Whenever a division fence is injured or destroyed, by floods or other casualty, the person bound to make and repair such fence, or any part thereof^ must make or repair the same, or his just pro- IIR.S. (3ded.)402, 403, 5S30-36;4John- I ' 1 R. S. (3d cd.) 403, 56 37-39; Laws of Km, 411- 9 Id., 13li- 17 Wendell, 330. 1838, chap. 261; U Wendell, 46; 18 Id., 213, ^ ^ ' 3 Hill, 38. 262 ifEW CLERK'S ASSISTANT. portion thereof, witliin ten days after he shall be thereunto required by any person interested therein ; such requisition shall be in writing, and signed by the party making it. If such person refuse or neglect to make or repair his proportion of such fence, for the space of ten days after such request, the party injured may make or repair the same, at the expense of the party so refusing or neglecting, to be re- covered from hun, with costs of suit' 7. Witnesses may be examined by the Fence Viewers, on all ques- tions submitted to them, and they have power to issue subpcBnas for, and to administer oaths to witnesses. ° ■ 8. When any distress is made of any beasts doing damage, the person distraining, within twenty-four hours after such distress, unless the same was made on a Saturday, in which case, before the Tues- day morning thereafter, must apply to two Fence Viewers of the town, to appraise the damage, who are required immediately to re- pair to the place and view the damage done ; and they may adminis- ter oaths and take the testimony of competent witnesses, in order to enable them to ascertain the extent of such damage. The Fence Viewers then certify under their hands the amount of the damage, with their fees ; and if any dispute arise, touching the sufficiency of any fence around the premises where the damage was done, they may in like manner inquire into the same, and determine such dis- pute ; which decision will be conclusive." 9. The owner of any sheep or lambs that may be killed or injured by any dog, may apply to any two Fence Viewers of the town, who shall inquire into the matter, and view the sheep injured or killed, and may administer oaths and take testimony on such inquiry. II they are satisfied that the sheep or lambs were killed or hurt by dogs, and in no other way, they must certify such fact, the number of sheep killed or hurt, and the amoiint of the damage sustained by the owner, together with the value of the sheep killed or hurt' 10. If the parties cannot agree as to the amount of the damage sustained by the owner, or possessor, of land on wliich floating tim- ber or lumber has drifted, either of them may apply to any two Fence Viewers of the town in which such timber or lumber may be found, whose duty it will be, after hearing the proofs and allegations of the parties, to determine the amount of such damage, at the ex- pense of the owner of the timber or lumber ; and their decision will be conclusive. The Fence Viewers may, in such cases, issue process for .witnesses on behalf of either party, and administer oaths on taking their testimony.' ' 1 R, S. (3d ed.) 403, 404, §§ 40-13; 3 Wen- •lell, 142. » 1 R. S. (3d cd.) 401, § 44. 3 2 R. S. (3d ed.) 607, 608, 5§ 1-3; 10 Fonn son 263, 369; 15 Id., 220; 19 Id., 498 4 1 R. S. (3d ed.) 886, S 10, » 1 R. S. IM. ed.) 877, §? 2, 3 FENCE VIEWERS. 203 FORMS. § 476. Fence Viewer's Certificate, where Stray has not been Claimed or Redeemed. Countv, ) Town of \y'- I, the undersigned, one of the fence vie-wers of said town, do hereby certify, that upon the application of A. B., of said town, upon whose enclosed lands the following stray animals, to wit: [name them,^ came, on or about the day of ,18 , and which strays have since that time been kept by the said A. B., and now remain unclaimed and unredeemed, I have ascertained, ac- cording to the best of my knowledge and judgment, and upon due inquiry and examination, the reasonable charges of keeping such strays, and that the same amount to the sum of dollars and cents : and that the fees for my service amount to dollars. Given under my hand, this day of , 18 . E. F., Fence Viewer. § 477. Certijicate where Parties cannot Agree upon the Charges for Keeping Strays. County,) Town of ,.p®- Whereas, a dispute has arisen between A. B. and C. D., of said town, concerning the reasonable charges of keeping the following strays, to wit: \nams them,^ which came upon the enclosed lands of the said A. B., on or about the day of ,18 , and have been kept by him since that time until the date hereof, and which are now claimed by the said C. D. : Now, therefore, we, the undersigned, two of the Fence Viewers of said town of , do hereby certify, that we have ascertained the reasonable charges of keeping said strays, after due inquiry and examination, and that the pame amount to dollars and cents ; and that the fees for our service amount to dollars. Given under our hands, this day of ,18 E F ) J-,' tt' [• Fence Viewers. . § 478. Certijicate of Value of Fence Built by an Adjoining Owner. County,) Town of ,P^- Whereas, A. B. and C. D. were, and are, the owners of certain lands adjoining, in said town of , and on the day ol Sfii NEW CLERK'S ASSISTANT. ,18 , or thereabouts, the said A. B. erocted a division fence between the land belonging to him and that of the said C. D., who had chosen to let the same lie open ; and whereas, the said C. D^ has, since that time, enclosed the said land belonging to him, and a dispute has arisen between the said parties, concerning the proper proportion of the value of the said division fence, to be paid for by the said C. D. : Now, therefore, we, the undersigned, two of the Fence Viewers of said town of , do hereby certify, that we have made due inqmry into the facts, and examined the premises; that the following is a correct description of the fence so bmlt by the said A. B., as aforesaid, to wit : [give description, ;~\ that the value thereof, at the time of building the same, was dollars; and that the proper proportion of said value, to be paid by the said C. D. to the said A. B., is dollars : And we also certify, that the fees for our service amount to dollars Given, &c., [as in § 477.] § 479. Certificate upon Hearing Dispute between Owners oj Adjoining Lands. County,) Town of ,P^- • Whereas, A. B. and 0. D. are the owners of certain lands adjoin- ing, in the said town of , and a dispute has arisen between them, concerning the respective proportions of a division fence to be maintained, \or, made,] by them. Now, therefore, we, the under- signed, Fence Viewers of said town, do hereby certify, that upon the application of the said parties, we proceeded to.examine the premises and hear the allegations of the said parties ; and that we do deter- mine that said division fence be bmlt as follows, to wit: \give description ;~\ that one-third part of said fence is the proper propor- tion thereof to be built by the said A. B. ; and that the remaining two-thirds is the proper proportion thereof to be bmlt by the said C. D. : And we also certify, that our fees for our service amount to dollars. Given, &c., [as in § 477.] § 480. Certificate of Damages where Division Fence is out of Repair. Counly, ) g. Town of , j ■ We, the undersigned, two of the Fence Viewers of said town, do hereby certify, that upon the application of A. B., the owner of land adjoining the land of 0. D., in said town, to ascertain and appraise certain damages alleged to have been incurred by the said A. B., in consequence of the neglect [or, refusal] of the said C. D. to make FENCE VIEWEKS. 265 [or, mainUin] his proportion of a division fence between tlie aforesaid lands, we proceeded to examine the premises ; and, after due inquiry, and examination by us made, we do determine that the said A. B. has sustained damages to liis land, crops, fruit trees, and shrubbery [add fixtures, if necessary,^ in consequence of the neglect [or, refu- sal] of the said C. D. to make [or, maintain] his proportion of such division fence as aforesaid ; which said damages we have ascertained, and do appraise at dollars. [Given, &c., as in § 477.] § 481. Certificate where Cattle are Distrained Doing Damage. County, ) Town of ,p^- We, the subscribers, Fence Viewers of said town, having been ap- Eilied to by A. B., of said town, to appraise the damages done by give the number and descriiHion of beasts, as near as may Se,] dis- trained by him doing damage on his lands, and having been to tbo place, and viewed and ascertained the damages, do hereby certify tho amount thereof to be dollars and cents, and that the fees for our services are $ . And a dispute having arisen be- tween the said A. B., on the one part, and C. D., on the other part, touching the suJBBciency of the fence along the east side of the orchard on the premises of the said A. B., which fence was shown to us by the said parties ; and having heard their allegations, and examined witnesses in relation thereto, we decide that ttie said fence is good and sufficient [or, bad and insufficient] Given, &c., [as in § 477.] § 482. Notice and Certificate of Consent to Hemove Division Fence. To Mr. A. B. : Take notice, that I shall make application to E. F. and G. H., two of the Fence Viewers of the town of , on the day of next, [or, instant,] for permission to remove the division fence between the land occupied by you in said town, and that owned and occupied by me, lying adjacent thereto.' C. D. Dated the day of , 18. ' ir a portion only of tho division fence Is to I be dlstnrbed, it should be parttoularly desle- I Dated in the notice. ' -s Li 266 NEW CLERK'S ASSISTANT. Town of '°;"^^:}- We, the undersigned, two of the Fence Viewers of said town, do hereby certify, that upon the application of C. D., made in accord- ance with a notice, of which the above is a copy, duly served upon A. B., therein mentioned, more than ten days before this day, we have examined the premises where the division fence named in said notice is situate, and do determine, that the same may, with propriety, be. removed. Given, &c., [as in § 477.] § 483. Certificate that Sheep, or Lambs, were Killed hy Bogs. County, [gg. Town of , J ■ We, the undersigned, two of the Fence Viewers of said town, do hereby certify, that upon the application of A. B., the owner of sheep, [or, lambs,] alleged to be killed by dogs, we proceeded to inquire into the matter, and to view the sheep [or, lambs,] killed, and exam- ined witnesses in relation thereto ; and that we are satisfied that sheep [or, lambs,] belonging to the said A. B., were killed by dogs, and in no other manner ; and we also certify, that the amount of damages sustained by the said A. B., in consequence of the killing of said sheep, \or, lambs,] as aforesaid, is dollars and cents ; and that the value of s^d sheep \or, lambs] is dollai'S and cents. Given, &c., [as in § 477.] CHAPTER XX. FEERIES. PRACTICAL REMAKES. 1. Tte County Court in each of the counties of this State may grant licenses for keeping ferries in their respective counties, to as many suitable persons as they think proper; which licenses wiU con- tinue in force for a term to be fixed by the court, not exceeding three years. No such hcense can be granted to any person other than the owner of the land through which the highway adjoining to the ferry shall run, unless such owner neglect to apply for such hcense, after notice has been given to him, at least eight days before the sitting of the court, of the intention of such person to make the apphcation.' 2. Every person applying for a license, before the same be granted, must enter into a recognizance to the people of this State, in open court, in the sum of one hundred dollars ; which recognizance is to be forthwith filed with the Clerk of the county. Every license so granted, must be entered in the book of minutes of the court, kept by the Clerk, and a copy thereof attested by him, deUvered to the person licensed.' 3. Whenever the waters over which any ferry may be used, divide two counties; a license obtained in either wUl be sufficient to autho- rize the person obtaining the same, to transport persons, goods, wares, and merchandise, to and from either side of said waters.' 4. If any person (except within the counties of Essex and Clinton, the counties of Orange, Rockland, and Westchester, and the counties in the first Senate District) use any ferry for ti-ansporting across any 1 R. S. (3(1. ed,) 642, 643, §1 1-3 ; 11 Wen- I a 1 R. S. (3d. ed.) 643, S5 4, 6. dell, 590. I 3 1 R. S. (3d. ed.) 643, S 6.. ^^® KEW CLERK'S ASSISTANT. river, stream, or lake, any person, or any goods, chattels or effects, for profit or hire, unless authorized in the manner above provided, such person will be considered guilty of a misdemeanor ; and, on conviction, be subject to such fine, for the use of the county, as the Court may adjudge; not exceeding twenty-five dollars for each of- fence. Where any offence is committed on waters dividing two counties, the person so offending may be proceeded against in each of said counties ; but the fine imposed cannot exceed twelve dollars and fifty cents in each case.' 5. The foregoing provisions of the statute do not affect or alter the ferries granted by charter to the corporations of Albany and Hudson, or alter or impair any gTants made by this State, or any legal right or privilege whatever, belonging to any individual or cor- poration, by virtue of any laws of this State, or otherwise.'' 6. The owner of a ferry cannot use the land on the other side of the stream, unless he is lumself the owner thereof, for the purpose of embarking and disembarking passengers'' 7. The public have an interest in a ferry; and the owners thereof are liable to answer in damages, if they should refuse to transport an individual without reasonable excuse, upon being paid or tendered the usual rate of fare.' 8. A County Court has power to gTant a license to keep a ferrj' on a river, although the jurisdiction of the State extends only to the centre of the river.' FOEMS. § 484. Application for a Ferry. To the Hon., the County Court of County : The application of A. B., of the town of , in said county of , respectfully showeth : That he is \or, that C. D. is] the owner of the lands in said tovra through which the public highway runs, leading from to , over and across the lake, [or, river ;] and that a ferry ought to be established, for the convenience and accommodation of the public, upon the said lake. > 1 R. S. (3d. ed.) 643, §§ 8, 9 ; 5 Johnson, | ' 3 Kent's Commentaries (2d ed.) 421 175 ; n Wendell, 690. • 3 Paige, 45. » 1 R. S. (Sd ed.) 643, S 10. '11 Wendell, 590 FERRIES. 269 \or, river:] Wherefore, the undersigned A. B., hereby makes appli- cation to the said court to grant him a license to establish such ferr}', on his compliance with the provisions of the statute in such case made and provided ; \^If the application be made by some person other than the owner of the land, insert here: the said C. D., the owner of the land through which the highway runs, as aforesaid, having neglected to apply for such license, after due service of the notice required by law, as appears by a copy of said notice and the affidavit of service, which are hereunto annexed.] Dated the day of , 18 . A. B. § 485. Notice to the Owner, and Affidavit of Service, ToMr. C. D.: Sir : You will take notice that I shall apply to the County Court of County, at the next term of said court, to be held at the court house m said county, on the day of next, for a license to be granted to me to keep a ferry upon the lake, [or, river,] from the termination of the highway running through j'our land, &Q,r. [give a particular description of the site of the ferry. '\ Dated, &c. Yours, &c., A. B. County, ss: A. B., of said county, being duly sworn, says, that on the day of instant, \or, last past,] he personally served C. D. with a notice, of which the above is a copy, by delivering the same to him. Sworn to before me, this ) A. B. day of , ] 8 ' . J < G. H., Justice of the Peace. § 486. Recognizance. State of New York, ) County, j Be it remembered, that I, A. B., of the town of , in said county, do hereby acknowledge myself to be indebted to the people of the State of New York, in the sum of one hundred dollars, to be well and truly paid, if default shall be made in the condition follow- ing: Whereas, the said A B. has this day applied to the County Court of the said county of , for a license to keep a ferry upon the lake, [or, river,]in the town of , in said county : Now, therefore, the condition of this recognizance is such, that if the said A. B. shall faithfully keep and attend the said feriy, provided a license shall be granted for that purpose, as aforesaid, with such and 970 XEW CLERK'S ASSISTANT. so many sufficient and safe boats, and so many men to work the same, as shall be deemed necessary, together with sufiBcient imple- ments for said ferry, during the several hours in each day, and at such several rates, as the court granting said hcense shall from lime to time order and direct, then this recognizance shall be void; else to remain of force. Subscribed and acknowledged in ^ A. B. [l. s.] open court, this day of , > 18 , before me. ) P. v.. Clerk of County Court. , § 487. License. At a County Court held in and for the county of , at the court house in said county, on the day of , A. D. 18 : Present, J. P. H., County Judge: It is hereby ordered and determined, upon the application of A. B., for that purpose made to this court, that this license be granted to the said A. B., to keep a ferry upon the lake, [or, river,] in the town of , in said county of , at or near the south- west corner of lot number , in said town, [or, as the case may be, describing tl'e place where it is proposed to have the ferry ^ for the term of years from the day of instant \If necessary add: And it is further ordered, that the said A. B. be allowed to collect and receive ferriage for the transportation of tra- vellers, property and effects, over and across the said ferry, at and after the following rates, viz. : [give the. prescribed rates ;'\ and that he shall not take, or require, any greater sum for such ti-ansporta- tion.] P. v.. Clerk. § 488. Certificate of Clerk to Annex to the Copy. State of New York, )^, County, ) I, P. v., Clerk of County Court, do hereby certify, that I have compared the foregoing [or, annexed] copy of a license with the original, this day entered upon the records of the said court; and that the same is a correct transcript therefrom, and of the whole of such original In testimony whereof, I have hereunto affixed my name, and the seal of the said court, this day of , A. D. 18 . [l. s.] p. v., Clerk. CHAPTER XXI. GIFTS. PKACTICAL- REMARKS. 1. Free gilts, or voluntary conveyances, made understandingly, and wittout fraud, will be upheld. . 2. There are two Hnds of gifts known in law, viz : gifts inter vi- vos, or those made between living persons ; and gifts causa mortis, or. those made in contemplation of death.' 3. Delivery is essential, both at law and in equity, to the validity of every gift If the thing given be not capable of delivery, the title must be passed by some act equivalent to it, as by assignment, or other instrument in writing.' 4. Gifts of goods and chattels, as weU as of lands, made with in- tent to delay, hinder, or defraud, creditors, are void as against any person who may be prejudiced thereby. Voluntary settlements of property, upon the wife or children of the party making the same, are also void as to existing creditors.' 5. Gifts made in expectation of death, wiU not be allowed to de- feat the just claims of creditors, and are void as against such credit- ors, even though there be no fraudulent intent* 6. A gift of personal property may be made by parol ; it is a safer course, however, to have it done by a written instrument" » 2 Kent's Commentaries, (2d el) 438. I 6 Cowen, 87: 8 Id., 406: 4 Wendell, 300; t > 2 Johnson, 52. Hill, 438. » a R. S. (3d ed.) 19B, 8 1; Id., 197, 58 l-3j | < 2 Kent's Commentetries, (2d ed ) 443. 2^2 NEW CLEEK'S ASSISTANT. FOKMS, § 489. Gift of Personal Estate, hy Deed. Know all men by these presents : That I, A. B., of, &c., in consid-. eration of the natural love and affection which I have and bear for my sister, 0. B., and also for divers other good causes and considera- tions, me, the said A. B., hereunto moving, have given, granted and confirmed, and by these presents do give, grant and confirm, unto the said 0. B., all and singular my goods, chattels and personal es- tate, of every name and nature, in whose hands, custody, or posses- sion, soever, they be : [or, the following goods and chattels, viz, &c. ; describing them:'] To have and to hold all and singular the said goods, chattels, and personal estate aforesaid, [or, goods and chattels,] unto the said C. B., her executors, administrators and assig-ns, to the only proper use and behoof of the said C. B., her executors, admin- istrators and assigns, forever. And I, the said A. B., all and singni- lar the said goods, chattels, anfl personal estate aforesaid, [or, goods and chattels,] to the said C. B., her executors, administrators and 'assigns, against me, the said A. B., my executors, and administrators, and all and every other person or persons whatsoever, shall and will warrant, and forever defend. In witness whereof, I have hereunto set my hand and seal, this day of , A. D. 18 . Sealed, signed and delivered, ) A. B. [l. b.] in presence of ) G. H. § 490. The Same, of Seal Ustate. This indenture, made, &c., between A. B., of, &c., of the one part, and R. B., son of the said A. B., of the other part, vritnesseth : That the said A. B., as well for and in consideration of the natural love and affection which he, the said A. B., hath and beareth unto the said R. B., as also for the better maintenance, support and liveli- hood of him, the said B. B., hath given, granted and confirmed, and by these presents doth give, grant and confirm, unto the said R. B, his heirs and assigns, all, &c., [description:] Together with all and singular the hereditaments and appurtenances thereunto belonging, or in any wise appertaining ; and the reversion and reversions, re- mainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, claim and demand, whatsoever, of him, the said A. B., o^ in and to, the said premises, and of, in and to, every part and parcel thereof, with the appurtenances : To have and to hold all and singular the premises hereby granted and GIFTS. 273 confirmed, or mentioned, or intended so to be, ■with the appurtenan- ces, unto the said R B., his heirs and. assigns, to the only proper use and behoof of him, the said R B., his hehs and assigns, forever. And the said A. B., for liimself, his heirs, executors, and adminis- trators, doth covenant, &c. : [For the necessary covenants, see forms of conveyances and covenants^ In witness whereof, the party of the first part hath hereunto set his hand and seal, the day and year above written. Sealed, &c., \as in 8 489.1 18 ^-B- [^«-] CHAPTER XXn. HIGHWAYS. PEACTIOAL REMARKS. 1. The electors of each town in this State have the power, at their annual town meeting, to determine, by resolution, whether there shall be chosen one, or three. Highway Commissioners : if only one be chosen, he possesses all the powers, and discharges all the duties, of Commissioners, as provided by law. Whenever three Commissioners are chosen, they are to be divided by lot, by the canvassers, into three classes, to be numbered one, two, and three, who hold their offices, respectively, for one, two, and three years ; and one Com- missioner only will thereafter be annually elected, who will hold his office for three years, and until a successor be duly elected, or chosen. But in case any Commissioner be elected to fill a vacancy, he will hold the office, only for the unexpired term ; or, if appointed, only until the ensuing town meeting. Vacancies in the office of Com- missioners are to be supplied until the next succeeding annual town meeting, by an appointment in writing, under the hands of any three Justices of the Peace, or two Justices and the Supervisor of the town. Where there ai'e two vacancies to be filled at any town meet- ing, the canvassers must determine by lot, after the canvass, the terms for which they shall respectively hold.' 2. Whenever any town has determined on having three Commis- sioners, but desires to return two, or have but one, it has the power 10 do so, by a resolution adopted at an annual town meeting; and when such resolution has been adopted, no other Commissioner can be elected or appointed, until the terms of those in office at the time of adopting the resolution, expire or become vacant. Such Com- missioners win be authorized to act until their respective terms be- come vacant or expire, as fully as if the three Commissioners con- tinued in office.' 1 Laws of 1845, chap. 180, S 2 : Laws of I » Laws of 1847, chap. 455. IS47, chap. 465. | HIGHWAYS. -275 3. Every Commissioner of Highways hereafter to be elected, or appointed, before entering upon his duties, and within ten days after notice of his election or appointment, must execute to the Supervisor of his tavm, a bond, with two sureties, to be approved by the Super- visor, by an endorsement thereupon, and filed with hina, in the penal sum- of one thousand doUai-s.' 4. The general powers and duties of Commissioners of Highways are as follows, viz : 1. To give directions for the repairing of the roads and bridges, within their respective towns.' 2. To regulate the roads already laid out, and to alter such of them as they, or a majority of them, deem inconvenient: 3. To cause such of the roads used as highways,- as shall have been laid out, but not sufficiently described, and such as shall have been used for twenty years, but not recorded, to be ascertained, described, and en- tered of record, in the Town Clerlv's office:* 4. To cause the highways, and the bridges which are or may be erected over streams intersecting highways, to be kept in repair:* 5. To divide their respective towns into so many road districts as they may judge convenient, by writing, under their hands, to be lodged wili the Town Clerk, and by him to be entered in the town book; such divi- sion to be made annually, if they think it necessary, and in all cases to be made at least ten days before the annual town meeting: 6. To assign to each of the said road districts such of the inhabitants liable to work on highways as they think proper, having regard to prox- imity of residence as much as may be :' 7. To require the Overseers of Highways, from time to time, and as often as they deem necessary, to warn all persons assessed to work on highways, to come and work thereon, with such implements, carriages, cattle, or sleds, as the said Commissioners, or any one of them, may direct: 8. To lay out, on actual survey, such new roads in their respective towns as they may deem necessary and proper; and to discontinue such old roads and highways, as shall appear to them, on the oaths of twelve freeholders, of the same town, to have become unnecessary. (They cannot, however, lay out a road, without the consent of the owner,througli any orchard of the growth of four years, or more; nor over a garden' cultivated four years; nor through any buildings, or any fixtures or erections for the purpose of trade or manafactures, or any yards or en- closures necessary for their use; nor through any enclosed, improved, r cultivated lands, without the consent of the owner, or on the oath of velve freeholders:)' 9. To render to the board of town auditors, at their annual meeting, 1 account in writing, stating the labor assessed and performed in their 1 Laws of 1845, chap. ISO, § 3. = 1 R. S. (3d. ed.) 616,5 1 ; 9 Johsson, 349; Id. 452: 2 Hill, 467 ; 6 Id., 463. 3 2 Johnson, 424 : 24 Wendell, 491. « 17 Johnson, 451 ; 7 Wendell, 471 ; 2 Hill, i. > 4 Hill, 693. « 1 R. S. (3d. ed.) 628, 5 69, et seq.; 4 Paige, 523 ; 6 Id., 83 j 4 Cowen, 190 ; 6 Wendell, 380; 6 Id., 461: 7 Id., 264 ; 13 Id.. 310; 73 Id., 324, 360; 2 Hill, 443 ; 3 Id., 458. 276 KEW CLERK'S ASSISTANT. respective towns; the sums received by them for fines and commutations, and all other monies received under Title 1 of Chapter 16 of Part I. o! the Revised Statutes; the iijiprovements which have been made on the roads and bridges, and an account of the state thereof; and a statement ■of the improvements necessary to be made:' IQ. To delfver to the Supervisor of their respective towns a statement of, the improvements necessary to be made on the roads and bridges, togeth>>r with the probable expense thereof, which is to be laid by him before the board, at their next meeting:'' 11. To administer oaths to witnesses or jurors, in proceedings had by or before them.' 12. To cause mile boards, or stones, to be erected, where not already erected, on the post roads, and on such other public roads as they may think proper, at the distance of one mile from each other, and with such fair and legible inscriptions as they may direct:'' 13. To cause guide posts, with proper inscriptions and devices, to Tie erected at the enterseotions of all the post roads in their town, and at the intersections of such other roads therein as they may deem neces- sary.' 5. The Overseers of Highways are required to repair, and keep in order, the highways within their respective districts ; to warn all per- sons assessed to work thereon ; to cause the noxious weeds on each side of the highway to be cut down or destroyed, out of the high- way work, twice in each year — once before the first day of July, and again before the first day of September ; and to collect all fines and commutation money, and to execute all lawful orders of the Commissioners. It is also the duty of Overseers to make another assessment, in addition to that made by the Commissioners, on the actual residents in tlieir respective districts, whenever tliey may deem the sauce necessary, in order to keep the roads in repair; such assessment must be in the same proportion, as near as may be, and not exceeding one-third of the number of days assessed by the Com- missioners. It is the further duty of every Overseer, once in each month, from the Gist day of April until the first day of December, to cause all the loose stones lying on the beaten track of every road with- in his district, to be removed ; to keep up and renew the montmients erected as the boundaries of highways ; to maintain and keep in re- pair, at the expense of the town, such guide posts as may have been erected by the Commissioners ; and whenever the moneys received from commutations and fines are not sufficient to defray the expense of procuring scrapers and plows, or either of them, when directed by the Commissioners, to assess the deficiency upon the inhabitants of the district, according to the last assessment roll of the town. Vacancies in the office of Overseer are to be filled by the Commis- 1 1 R. S. (3d ed.) 617, § 3. | < 1 R. S. (3d ed.) 617, 5 6. a 1 R. S. (3d eel.) 617, M | 1 Hill. 50. I ■■ 1 R. S. (3d ed.) 618, 5 10. t Laws of 1846, chap. 180, 5 2. | HIGHWAYS. 277 sioners, under a warrant to be filed in. the office of the Town Clerk, who is reqliired to give notice to the person appointed. If an Over- seer neglects or refuses to perform his duty, the Commissioners arc Required to prosecute him for the same : if a complaint be made by a person resident in the town, such person must give, or offi;r, suflS- cient security to indemnify the Commissioners against costs, who are thereupon forthwith to prosecute the Overseer for the offence com- plained of 6. Every person owning, or occupying land, in the town in which he or she resides ; eveiy male inhabitant above the age of twentj'-one years, residing in the town where an assessment is made ; and all moneyed or stock corporations which appear on the last assessment roU of their town to have been assessed therein ; are to be assessed to work on public highways in such town : the lands of non-residents are also to be assessed for highway labor.'' 7. Each Overseer of Highways is required to deliver to the Clerk of the town, within sixteen days after tus election or appointment, a list, subscribed by him, of the names of all uihabitants in his road district, liable to work on highways.' 8. The Commissioners of Highways are to meet within eighteen days after their election, at the place of holding the town meeting, on such day as they may agree on, and afterwards, at such other times and places as they may think proper. The lists of the Overseers are to be delivered to them by the Town Clerk ; and at their next, or some subsequent meeting, they are to ascertain, estimate and assess, the highway labor to be performed in their town the then ensuing year, as fallows : The whole number of days' work to be assessed in each year must be at least three times the taxable number of inhabitants in the town ; every male inhabitant, being above the age of twenty-one years, (excepting ministers of the gospel and priests of every denomi- nation, paupers, idiots and lunatics,) must be assessed at least one day ; the residue of the work is to be apportioned upon the real and personal estate of every inhabitant, as the same may appear in the last assess- ment roll of the town; and upon each tract, or parcel of land, owned by non-residents : all deficiencies in the number of days' work are to be assessed in the same manner. The Commissioners must also affix the number of days' work assessed, to the name of each person mentioned in the lists furnished by the Overseers, and to the description of each tract, or parcel, of non-resident lands ; such lists, when completed, are to be filed with the Town Clerk, who is re- H R. S. <3d. ed.) 617, 618, 55«-8,- Id., 618, 55 10-12; Id., 619, § 17; 10 Johnson, 470; II Id., 432; 17 Id., 439; 18 Id., 407; 1 Cowen, 260; 3 Wendell, 193; 7 Id., 181; 11 Id., 667; .Old.. 60* 5 Hill, 215. = 1 R. S. (3d. ed.> 620, 5 19: Laws of 1837 chap. 431: 12 Wendell, 360. a IR. S. (3d. ed.)620, $21. ~ • ^ IfEW GLEBE'S ASSISTANT. quii-ed to make copies of each list, to be subscribed by tbe Commis- sioners, and delivered to the Overseers.' 9. At the first, or any subsequent meeting, of the Commissioners, they are required to make out a list and statement of all lots, pieces, or parcels of land, owned by non-residents in their several towns ; describing each lot, in the same manner as is required from Asses . sors ; and giving the value aflBxed to such lot in the last assessment roll of the town, or, if not separately valued in such roll, then the proportionate value thereof. Lands of non-residents occupied and improved by the owner or owners, or his or their servants or agents, are liable to the same assessment for highways as if the owner or owners were residents. Whenever any non-resident owner conceives himself aggrieved by the assessment of the Commissioners of High- ways, an appeal may be made by such owner, or bis agent, within thirty days after such assessment, to three Judges of the county in which the land is situated, who ai-e required, within twenty days Hiereafter, to convene, and decide on such appeal: Notice of the meeting is to be given by the owner, or agent, to the Commissioners, and the decision of the Judges, or of any two of them, will be final.'' 10. It is the duty of Commissionfers of Highways to credit persons living on private roads, and working the same, so much on their as- sessments as such Commissioners may deem necessary to work such private roads ; or to annex the same to some of the highway dis- tricts.' ,11. Every person liable to work on highways, except an Overseer, may commute for the whole, or any part of the number of days as- sessed to him, at the rate of sixty-two and a half cents for each day, to be paid within twenty-four hours after being notified to appear and work' 12. Overseers are required to give twenty-four hours, notice to persons assessed to work on highways. No person, being a resident of a town, can be requu-ed to work on any highway, except in the district where he resides, unless, upon his appUcation, the Commis- sioners consent that he may apply his work in some district where he has land. Overseers may require from persons having the same, ■who are assessed, and have not commuted, a team ; or a cart, wagon, or plow, with a pair of horses, or oxen, and a man to manage them ; and the person furnishing the same will be entitled to a credit of three days, for each day's service therewith.' 13. The fine for a refusal, or neglect, to appear and work when notified by the Overseer, is one dollar for each day ; and twelve and 1 1 R. (5. (3a. ed.) 620. §5 20. 23, 24 ; Id., I s i R. S. (3d. ed.) 623, § Sa; Laws of 1885. 622,5 36; Laws of 1835, chap. 154. | chap. 154. a 1 R. S. (3d. ed.) 620, § 22, et seq. ; Id , 445, 'I * 1 R, S. (3d. ed.) 624, 5S 44, 45. H U-13 I- MR. S. (3d. ed.) 624, §§41, 4C% HIGHWAYS. 279 a half cents for every hour any person or his substitute may be in de- fault Every person, ir substitute, remaining idle, or not working faithfully, or hindering c'hers from work, is Uable to be fined one dollar for each offence. Ii a person, required to furnish a team, car- riage, man, or implements, neglects or refuses to comply, he may be fined three dollars for each day, for wholly omitting to comply with the requisition ; and one dollar for each day, for omitting to furnish a cart, wagon, or plough, or a pair of horses, or oxen, or a man tcJ manage the team. Overseers are required to make complaint on oath, to one of the Justices of the Peace of the town, within six days after any person assessed shall be guilty of any refusal or neglect, for which a penalty or fine is prescribed, unless some satisfactory excuse be rendered.^ 14. The Commissioners of Highways are required to present a statement to the Supervisors of their respective towns, showing the amount of money necessary to be raised for improving the roads and bridges ; tliis statement is to be laid before the Board of Supervisors, who are directed to assess, levy and collect, the amount therein speci- fied, not exceeding two hundred and fifty dollars in any one year, in the same manner as other town charges. The electors of any town may direct an additional sum of two hundred and fifty dollars, in aay one year, to be raised, if the Commissioners deem it to be necessary ;. and make application for that purpose at the annual town meeting ; notice of wHoh application must be given by the Commissioners, at least four weeks preceding the town meeting, to be posted up in it least five of the most pubhc places in the town. The vote dii-ecting the last mentioned sum to be raised, must be recorded in the minutes, and the Town Clerk is required to deliver a copy of the resolution to the Supervisor, to be laid by him before the board, and the amount, specified therein is to be collected as above provided. The Board of Supervisors may also cause to be levied, collected, and paid, in like manner, such sum of money, in addition to the two suras above men- tioned, not exceeding five hundred dollars in any one year, as a ma- jority of the qualified voters of any town may have voted, at any legal town meeting, to be raised in their town, for constructing roads and bridges therein: a written notice of the application to raise such amount, must be posted on the door of the house where the town meeting is to be held, and at three public places in the town, for twc weeks before the town meeting, and also be openly read to the electors present, immediately after the opening of the meeting. The Board of Supervisors of any county, also, have the power to authorize a town, by a vote of such town, to borrow any sum of money, not ex- ceeding four thousand dollars in one year, to build or repair any I 1 J. S. (3d.efl.)C25, §47,eteea. 1 lihraon 515 ; 3Iil.,474; 5Id.,12j; lOld.,470 2S0 NEW CLERK'S ASSISTAKT. roads or bridges in such town, and prescribe the fee for the pay- ment of the same, which time shall be within ten years, and for assessing the principal and interest thereof on such town.' 15. Whenever any damages are allowed to be assessed by law, when any road or highway shall be laid out, altered, or discontinued, in whole or in part, such damages shall be assessed by not less than three Commissioners, to be appointed by the County Court of the county in which such road or highway shall be, on the application of the Commissioner or Commissioners of the town ; and the Commis- sioners so appointed shall take the oath of office prescribed by the constitution, and shall proceed, on receiving at least six days' notice of the time and place, to meet the Highway Commissioners, and take a view of thepremises, and hear the parties, and such witnesses as may be offered before them ; and they shall all meet and act, and shall assess all damages which may be required to be assessed on the same highway, and shall be authorized to administer oaths to all witnesses produced before them. When all the Commissioners shall have met and acted, the assessment agreed to by a majority of them will be valid; and when made, it is to be delivered to a Commissioner of Highways of the town, who is required to file it within ten days after receiving it^ in the office of the Town Clerk. Any person conceiving himself aggrieved, or the Commissioner or Commissioners of High- ways of the town, feeling dissatisfied by reason of any such assess- ment, may, within twenty days after the filing thereof, as aforesaid, sig-nify the same by notice in writing, and serving the same on the Town Clerk and on the opposite party, that is, the persons for whom the assessments were made, or the Commissioner or Commissioners of Highways, as the case may be, asking for a jury to re-assess the damages, and specifying a time, not less than ten, nor more than twenty days from the time of filing the said assessment, when the jury will be drawn at the Clerk's office of an adjoining town of the same county, by the Town Clerk thereof The notice must be served upon the opposite party, as aforesaid, within three days after the service upon the Town Clerk, and may be served personally, or by leaving the same £l,t the dwelling house of the party, vrith some person in charge thereof, or, if there be no such person, or the house be closed, then by affixing the same to the outer door of the said dwelling house.' 16. Three days' previous notice that a jury is to be drawn, must be sei-ved by the person or party asking a re-assessment, on the Tav, n Clerk of the adjoining town ; and at the time and place speciiied in such notice, said Clerk will deposit in a box the names of all persons then resident of the town, whose names are on the last jury list, and U R. S. (3a. ed.) 617, § 4 ; Laws of 1832, | » Laws of 1845, chap. ISO ; Laws of 1847, chap. 274 ; Laws of 1838, chap. 314 ; 1 HiU, chap. 465. 60 ! Laws of 1849, chap. 194. 1 HIGHWAYS. 281 ■vrho are not interested in the lands through which such road shall bo located, nor of kin to either or any of the parties, and draw there- from the names of twelve jurors. The. Clerk is required to make a certificate of the drawing, setting forth the names, and the purposes for which they are drawn, which is to be delivered to the party ask- ing for the re-assessment' 17. The party receiving the certificate as aforesaid, must deliver the same, within twenty-four hours thereafter, to a Justice of the Peace of the town wherein the damages are to be assessed, by whom a summons is to be forthwith issued to one of the constables of the town, directing him to summon the persons named in the certificate of the Town Clerk, and specifying a time and place for them to meet, which must not be within twenty days from the time of 'fihng the original assessment in the ofiice of the Town Clerk. On the appear- ance of the persons summoned, the Justice who issued the summons will draw by lot six of those attending, to serve as a jury, and the first sLx drawn, who are free from legal exceptions, shall constitute such , jury. The jurors are to be sworn, well and truly to determine and re-assess such damages as sh?Jl be submitted to their consideration; they are to take a view of the premises, hear the parties, and such witnesses as may be produced, who are to be sworn by the Justice, and render their verdict in writing under their hands. Such verdici win be certified by the Justice, and delivered to the Commissioners! of Highways of the town ; and the same will be final." 18. In all cases of assessments under the foregoing provisions, the costs thereof will be paid by the town in which the damages shall be assessed ; and in cases of re-assessments by a jury, on the application of the Commissioners of Highways, if the first assessment be reduced, the costs of such first assessment wiU be paid by the party claiming the damages, but if not reduced, then by the town. Where a re- assessment is had on the application of a party claiming damages, if the damages be increased, the costs shall be paid by the town, but if not, they shall be paid by such party. Where several persons be- come liable for costs, they are so liable in proportion to the amount of damages respectively assessed to them by the first assessment.' 1 9. When apphcations are made by two or more persons for a jury to re-assess damages, such jury will be drawn and summoned in ac- cordance with the notice first served upon the Clerk of the town in which the damages are to be assessed.* 20. Any person conceiving himself aggrieved by any determina- tion of the Commissioner of Highways, either in laying out, alttring or discontinuing any road, or in refusing to lay out, alter or discon- 1 Laws of 1847, chap. 455. | Laws of 1847, chap. 455. ' Laws of 1847, chap. 455. \ * Laws of 1847, chap. 445. 282 NEW CLERK'S ASSISTANT. tinue, any road, may, at any time within sixty days after such determi- nation shall have been filed in the office of the Town Clerk, appeal to the County Judge of the county. Such Judge, or, if he be a resident of the town, or be interested in the lands through which the road is laid out, or of kin to any of the persons interested in such lands, or in case of his disability for any cause, then one of the Justi- ces of the Sessions shall, after the expiration of the said sixty days, appoint in writing three disinterested freeholders, who shall not have been named by the parties interested in the appeal, and who shah be residents of the county, but not of the town, in which the road is located, as referees to hear and determine all the appeals that may have been brought within the said sixty days. The Judge, or Jus- tice, must, also, notify the referees of their appointment^ and dehver to them all papers pertaining to the matters referred to them.' 21. Upon receiving notice of their appointment, the referees are authorized to hear and determine the appeal or appeals referred to them; but before proceeding to hear the* same, they must be sworn by some officer authorized to take affidavits to be read in courts of record, faithfully to hear and determine the matters so referred to ' them. The decision of such referees must be filed in the office of the Town Clerk in which the road is located, and be carried into effect by the Commissioners of Highways. Such decision cannot be altered within four years from the tiiije of filing the same. The fees of the referees are to be paid by the party appealing, where the decision of the Commissioners is confirmed ; otherwise, by the county.2 22. In all cases of assessments of damages for laying out, or alter- ing a private road, the Commissioners of Highways of the town where the same is situated, must serve a notice on the Town Clerk, and on the person, or persons, interested in the road, specifying a time when a jury of the town wiU be sumnoned to assess the dam- ages for laying out or altering such road. The time must not be less than six, nor more than ten days, from the time of service of the notice. At the time mentioned in the notice, the Town Clerk will draw twelve jurors from the last jury list, in the same manner as on applications for re-assessments ; and the drawing will be cer^ tified to a Justice of the Peace, the jurors summoned, and their proceedings be conducted as on the aforesaid applications for re- assessments. The same jury will assess all damages required to be assessed for the same road. All damages assessed for laying out, or altering any private road, together with the costs of the assessment, are to be paid by the party applying for the road.' 33. All damages finally assessed, or agreed upon, by the Com- 1 laws of 1846, cliop. 180 ; Laws of 1887, I = Laws of 1847, oliap. 455. chap. 4S6. I ' Laws of 1847, chap. 46S. HIGHWAYS. 283 missioners of Highways for the laying out of any road, except pri- vate roads, are to be laid before the Board of Supervisors, by the Supei-visor of the town, to be audited with. the charges of all per- sons or officers employed in maldng such assessment; and such damages are to be levied and collected in the town in which the road is located, in tlie same manner as other charges for which said town is liable.' 24. No private road can be laid out over the lauds of any person, without liis consent, or the decision of a jury." 25. Where there are three Commissioners in any town, any order signed by two of them will be valid, if it appear in such order, that all the Commissioners met and dehbjrated on the subject of the order, or were duly notified to attend a meeting of the pommission- ers for the purpose of dehberating thereon.' / 26. Commissioners of Highways cannot maintain an action in their officia. r:ame or title, but must use their individual names, affixing their official utit , a? " E. F. Commissioner of Highways of the town of , in the county of , pltiintiff, ito.'" 27. A bond taken in the name of a Commissioner of Highways, for the benefit of the town even, is absolutely void — as Commission- ers have no authority to take a bond virtute officii.'' ' 28. For the provisions of the Revised Statutes in relation to High- ways, see Title 1, of Chapter 16, of Part I. 29. The Commissioners of Highways of adjoining towns may en- ter into contracts to build or repair bridges over streams dividing such towns, and may be sued thereon.' 30. Where a public highway has been transferred to a plank road company, and the interest of the public in the road is paid for, the corporation succeeds to all the rights of the town Commissioners, in respect of making repairs, &c.' FORMS. § 491. Appointment of a Commissioner to fill a Vacancy. County,) Town of ,p^- Whireas, E. F., duly elected \or, appointed] a Commissioner of Highways in and for said town, to serve until the day of 1 Laws of iaj7, chap. 455. | •• 4 Hill, 136 ; 5 Id., 21.') ; 1 Denio, BIO. a 4 Hill, 410 ; 6 Id., 47 ; Amended Consii- » 4 Baiboui's B. C. Rep., 01. tution of New York, Art. I. § 7. » Laws of 1841, chap. '.2.J. 3 1 R. S (3d ed.) 641, 5 154 j 22 Wendell, ' 3 Barbour's S. C. Rep., 459 134. 2S4 NEW CLERK'S ASSISTANT. 18 , has deceased, [or, has removed from said town; or, as the cojse may 6e;] by reason whereof a vacancy exists in the office of such commissioner: Now, therefore, we, the undersigned, three Justices of the Peace of the Tiaid town, \or, the Supervisor and two Justices of the Peace of the said town,] do hereby appoint R. R, to serve as such Com- missioner, in the stead of the said E. R, until the next annual town meeting, to be held in said town, on the day of next Given under our hands, this day of ,18 „■ m' /justices of y" -w' f the Peace. § 492. Commissioner's Bond. Know all men by these presents : That we, E. F., L. M., and S. T., of the town of , in the county of , are held and firmly bound unto A. B., Supervisor of said town of , in the penal sum of one thousand dollars, to be paid to the said A. B., and his successor in office ; to which payment, well and truly to be made, we bind ourselves, and our, and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the ♦ day of A. D. 18 . Whereas, the above bounden E. F. has been duly elected, [or, appointed,] a Commissioner of Highways in and for the said town of , to serve for the term of three years from the day of , 18 , [or, if appointed to Jill a vacancy, say: to serve until the day of , 18 ,] and until a suc- cessor shall be duly elected or chosen: Now, therefore, the condition of this obligation is such, that if the said E. F. shall faithfully dis- charge liis duties as such Commissioner, and within ten days after the expiration of his term of office, pay over to his successor what money may be remaining in' his hands as such Commissioner, and render to such successor a true account of all moneys received and paid out by him as such Commissioner, then the above obligation to be void ; elsg to remain in force. Sealed, signed, and deUvered, ) E. F. [l. s. in presence of V L. M. l, s. G. H. ) S. T. [l. s.; I approve of the sureties named in the above bond. Dated at , the day of , 18 . A. B., Supervisor of the town of .» HIGHWAYS. 285 § 493. Order for Ascertaining a Road Imperfectly Described, or not Mecorded. County, [gg. Town of j Whereas, a road leading from to , in said town of , now used as a higlaway, was laid out by the Commis- sioners of the said town, on the day of , 18 , but not sufficiently described of record, [or, has been used for twenty years for such highway, but has never been recorded :] Now, there- fore, I, the undersigned, the Commissioner of Highways of said town, [or, we, &c., the Commissioners, &c.; or, two of the Commissioners, &c., all of the said Commissioners having been duly notified to attend and dehberate on the subject of this order,] do order that said road be ascertained, described, and entered of record, in the Clerk's office of said town, according to a survey which has been made under my \or, our] direction, as follows : \insert the survey.'^ [If only one line is surveyed, add: And I do further order, that the line of said survey be the centre [or, west Unel of said road, and that the said road be of the width of rods.] Given under my hand, [or, our hands,] this day of , A.D. 18 . E. F., Commissioner. § 494. Annual Account for the Town Auditors. To the Board of Town Auditors of the Town of , in the County of : The annual account of the Commissioner of Highways of the said town of , for the year ending the day of , 18 , showeth as follows, viz. : 1. The labor assessed in said tovra, during the year ending on the day of , 18, , is days, and the amount of said labor actually performed is days; as appears by the returns made to me by the several Overseers of Highways in said town. 2. I have received for fines and commutations, under the statutes relative to highways, the sum of dollars, as follows, viz : Date. From whom received. On what account. Amount received. 18 . July 6, Oct. 9, John Jones, James Jackson. Balance of money receired by him as Overseer, Fine for obstructing highway, «7,85 «!>,U0 i 286 NE-W" CLERK'S ASSISTANT. 3. The improvements which have been made on the roads and bridges in said town of , during the said year, are [state the improvements , 'I and the condition and situation of the roads and bridges in said town is, ifec, [state the situation^] 4. The following improvements, in my opinion," are necessaiy im- provements to be made on the roads and bridges in said town, to wit: [state the improvements deemed necessary;^ and the expense of ma- king such improvements, beyond what the labor to be assessed this year will accomplish, is estimated by me at $ Given, &c., [as in § 493.] § 495. Statement and Estimate for the Supervisor. To the Supervisor of the town of , in the County of : The Commissioner of Highways of said town reports, that the following improvements, m : [follow the 3d and 4th clauses of the Report to the Town Auditors, as near as may Jis.] Given, - Commissioners. L. M.) § 539. Notice of Re-Assessment. Sir : Take notice, that I consider myself aggrieved by [or, if the notice is given by a Commissioner of Highways, say : Take notice, that I am dissatisfied with] an assessment of damages made on the day of ,18 , by G. H., S. T., and L. M., Com- ^^'* NEW CLERK'S ASSISTANT. tnissioners for that purpose appomted by the County Court of County, for laying out [or, altering; or, discontiniiing] the highway [describe the highway as in the assessment,^ which said assessment is now on file in your office ; and that a jury will be drawn by R P., Town Clerk of the town of , [the adjoining town,^ at his office in the said town of , on the day of next, [or, instant,] at o'clock in the noon, to re-assess the said damages. Dated the day of ,18 A. B., [or, E. F., Commissioner of Highways in and for the Town of .] To C. D., Town Clerk of the Town of , [or, To Mr. M. B. — the party claiming damages.] § 540. Notice to the Town Clerk of an Adjoining Town to draw a Jury. Sir : You are hereby required, in accordance with the statute in such case made and provided, to draw a jury of twelve jurors, on the day of next, [or, instant,] at o'clock in the noon of that day, to re-assess the damages for lapng out [or, as the case may Je] the highway, [describe the highway as in the assessment;'\ the same having been assessed by G. H., S. T., and L. M., Commis- sioners for that purpose appointed by the County Court of County, but I conceiving myself aggrieved by [or, I being dissatisfied with] the said assessment Dated, (fee, [as in § 539.] To E. P., Town Clerk of the Town of § 541. Certificate of the Drawing of the Jury. County,) Town of ,\^- I do certify that, upon the application of A. B., [or, E. F., Com- missioner of Highways in and for the town of ,] in pursuance of the statute in such case made and provided, on the day of ,18 , at o'clock in the noon, at my office in the said town of , E. B., M. T., 0. R, &c., &c.. [name all the jurorSil were drawn by me as jurors to re-assess the damages for laying out, [or, as the case may be] the highway, [describe the high- way;] the said damages having been heretofore assessed by G. H., S. T., and L. M., Commissioners for that purpose appointed by the County Court of County; but the said A. B., conceiving HIGHWAYS. 305 himself aggrieved by [or, the said E. F. being dissatished with] the said assessment. Given under my hand, this day of , 18 . R P., Town Ckrk of the To-wn of § 542. Summons of the Justice. County, I Town of ,P^- To any Constable of the town of , in said county, greeting: You are hereby commanded to summon E. B., M. T., 0. R., &c., &c., [name all the jurors drawn,^ jurors regularly drawn by R. P., Town Clerk of the town of , to re-assess the damages for lay- ing out [or, as the case may Je] the highway, [describe the highioay, as in the certificate of drawing^ to meet at the house of O. P., in the town of , aforesaid, on the day of next, [or, instant,] at o'clock in the noon of that day, for the pur- pose above specified. And have you then there this precept Given under my hand, this day of , 18 . G. H., Justice of the Peace. § 543. Oath of the Jurors. You will well and truly determine and re-assess such damages as shall be submitted to your consideration. So help you God. § 544. Oath to Witnesses. The evidence you shall give upon this re-assessment of damages for laying out [or, as the case may 6e] the highway in question, shall be the truth, tiie whole truth, and nothing but the truth. So help you God. § 645. Verdict of the Jwry. County,) g. Town of , j ■ We, the subscribers, the jurors drawn, summoned aiid sworn, to re-assess the damages for laying out [or, as the case may Je,] the highway, [describe the highway, '\ in pursuance of the order of E. R, Commissioner of Highways in and for the town of , bearing 20 306. NEW CLEEK'S ASSISTANT. date the day of > 18 , having viewed the premises, and heard the parties, and such witnesses as were offered before us, do hereby re-assess the damages aforesaid, as follows : To A. B., the sum of dollars, for the damages sustained by him by reason of the laying out [or, as the case may be] the said highway ; to C. D., the sum of, &c., [specify all the parties to whom damages may be awarded.] In witness whereof, we have hereunto set our hands, this day of , 18 , E. B., M. T., 0. R, &c. &c., § 546. Certificate of the Justice. County, ) Town of j-ss. . I, G. H., one of the Justices of the Eeace of said town, do certify, that the above is the verdict of the jury summoned by my summons, and drawn and sworn by me to determine and re-assess the damages for the laying out \or, as the case may be] the highway mentioned in the said verdict. Given, &c., [as in § 542.] >• Jurors. § 547. Application to Discontinue an Old Road.^ To E. F., the Commissioner of highways of the town of , in the County of : I, the undersigned, A. B., a resident of said town, liable to be as- sessed for highway labor therein, hereby make application to you, the said Commissioner, to discontinue the old road in said town, com- mencing near my dwelling house, [give description of the part sought to be discontinued,] on the ground that the said road has become useless and unnecessary. Dated, &c. A. B. § 548. Oath to Freeholders on Application to Discontinue. You, and each of you, do solemnly swear, that you will well and truly examine and certify, in regard to the propnety of discontinu- mg the road, for which application has b.een made by A. B. > The Commissioner receiving the application, is required to summon twelve disin- terested freeholders, to examine the premise? and consider such application. HIGHWAYS. 307 § 549. Certificate to Discontinue. County,) Town of ,P^- We, the undersigned, disinterested freeholders of said town of , having met at the house of R P., in said town, on this day of ,18 , in pursuance of the summons of E. F., the Commissioner of Highways of the said town, in order to examine and certify in regard to the propriety of discontinuing the road described in ttie annexed application of A. B., do certify, that we have personally examined the said road, and that in our opinioti the same is useless and unnecessary, and ought to be discontinued. In witness whereof, we have hereunto subscribed our names, this day of , 18 . G. H., &C., (&C. § 550. Order for Discontinuing a Road} County, ) Town of , j Upon the application of A. B., of said town, for the discontinu- ance of the road hereinafter described; and on the certificate of twelve disinterested freeholders, duly summoned and sworn, who Lave in due form certified that said road is useless and unnecessary ; it is hereby ordered by E. F., the Commissioner of Highways of said town of , [or, the Cormnissioners, &c. ; or, two of the Commissioners, . tinning, any road, are to be filed in the ofilce | 518.) . 308 NEW CLERK'S ASSISTAKT. laying out [or, altering; or, discontinuing; or, in refusing to lay out, or, as aforesaid] a highway in said town, upon the application of C. D., do hereby appeal to you from such determination. The said highway [or, alteration of the said highway] is described in the order of the said Commissioner, filed and recorded in the ofiBce of the Town Clerk of said town of , on the day of ,18 , * as follows: [insert description.^ The grounds upon which this appeal is made, are [state the same particularly ;'\ and said appeal is brought to reverse entirely the determination of the said Commissioner, [or, to reverse the determination, &c., specifying the part sought to be re- versed.^ Dated this day of ,18. A. B. § 552. Appointmeiit of Referees by the Coimty Judge. County, ss: Whereas, on the day of , A. D., 18 , A B., of the town of , in said county, appealed to me from the order and determination of E. F., Commissioner of Highways of said town, contained in his order, filed, &c., [as in § 551, to the *: if, however, the referees are to hear several appeals, all shotdd be mentioned in the appointment :'\ Now, therefore, in accordance with the statute in such case made and provided, I do hereby appoint G. H., S. T., and L. M., residents of the said county, but not of the said town of , referees to hear and determine the. said appeal, [or ap- peals.] Given imder my hand, this • day of , 18 . J. P. H., County Judge. § 653. Appointmeni of Referees by one of the Justices of the Ses- sions, where the County Judge is Interested, or otherwise Disabled. County, ss: Whereas, on the day of , A. D., 18 , A. B., of the town of , in said county, appealed to the Hon. J. P. H., Coimty Judge of said county, from the order and determination of E. F., Commissioner of Highways of said town, contained in his order, filed, &c., [as in § 551, to the *, or follow the direction in g 552 :] and whereas the said County Judge is a resident of the said town of , [or, is interested in the lands through which the Baid road is laid out ; or, is of kin to A. B., one of the persons inte- rested in the lands through which said road is laid out ; or, if the judge be disabled for any other cause, state the facty\ Now, there- HIGHWAYS. :■■'.> fore, in aocordance -vrith the statute in such case made and provided, I, the undersigned, one of the Justices of the Sessions of the said county of , do hereby appoint G. H., S. T., and L. M., residents of the said county, but not of the said town of , re- ferees to hear and determine the said appeal, [or, appeals.] Given under my hand, this day of ,18 E. W. B., Justice of the Sessions. § 554. Notice to the Referees of their Appointment. To G. H., S. T., and L. M: Take notice, that you have been duly appointed by me, as referees to hear and determine an appeal made from the order and determi- nation of E. F., Commissioner of Highways of the town of , in the county of , contained in his order, filed, &c., \as in § 651 to the * ; or, if there are other appeals, specify them also:^ and that the papers herewith delivered, are all the papers pertaimng to the matter \or, matters] referred to you as aforesaid. Dated the day of ,18 J. P. H., County Judge of County ; [or, E. W. B., Justice of the Sessions of Coimty,] I 555. Notice to he given hy the JReferees.to the Commissioner. To E. R, Commissioner of Highways of the town of , in the County of , Take notice, that we have been duly appointed referees to hear and determine an appeal made to J. P. H., County Judge of the county of , by A. B., of said town of , from your de- termination contained in your order, made on the day of , 18 , and filed and recorded in the oflice of the Town Clerk of said town, on the day of ,18 , refusing to lay out Referees. KM.,y § 558. Oath of the Referees. You, and each of you, do solemnly swear, that you will faithfully hear and determine the appeal [or, appeals] referred to you. 8 659. Oath to he Administered to a Witness by the Referees. The evidence you shall give upon this hearing of the appeal of A. B., shall be the truth, the whole truth, and nothing but the truth. So help y6u God. § 560. Decision of the Referees upon an Order in relation to Alter- ing or Discontinuing a Road. County, ss: Whereas, on the day of , A. D., 18 , A. B., erf the town of , in said county, appealed to the Hon. J. P. H., HIGHWAYS. 31 1 County Judge of said county, from the order and determination of E. R, Commissioner of Highways of said town, contained in his or- der, filed, (fee, [aw in § 551, to the *, and then add/] copies of which said appeal and order are hereto annexed; and whereas we, the undersigned, having been duly appointed by the said County Judge, [or, by E. W. B., Esq., one of the Justices of the Sessions of the said county, the said County Judge being disabled from acting in the premises,] referees to hear and determine the said appeal, attended at the house of 0. P., in the said town of , on this day of ,18 , at o'clock in the noon, in pursuance of notice duly given to the said Commissioner, and to the said A. B., the applicant above named, according to the statute in such case made and provided, to hear the proofs and allegations of the parties : And whereas, such hearing having been had in the premises, we do here- by adjudge, decide, and determine, that the order and determination of the said Commissioner* be, and the same is in all things afiirmed; [or, reversed ; or, reversed in part, as follows, to wit : set forth the decision in fun.] Given, &c, [as in, § 657.] § 561. Decision of the Referees on an Order Refusing to lay out a Road. County, ss: Whereas, tfec, [as in § 660, to the *, and then add:] be, and the same is, in all things reversed ; and that a highway be, and the same is, hereby laid out, pursuant to the application of the said A. B., pursuant to a survey thereof, which we have caused to be made, as follows, to wit: Beginning, 12 NEW CLERK'S ASSISTAJ the occu- pant of the land through [or, by] which the said highway runs, by reason of the said Commissioner's proceedings against him, to be dollars. In witness, (fee, [as in § 568. ] § 570. Warrant to Collect Costs of Proceedings upon an Encroach- ment}- The People of the State of New York to any Constable of the Town of , in the County of : Wtereas, E. R. the Commissioner of Highways of the said town, did, on the day of , 18 , make and subscribe an order or certificate for the removal of a certain fence, as an encroachment upon the highway running through land in the said town, in the occu- pation of C. D., specifying the breadth of the road, and the extent and place of the encroachment: which said encroachment, having - been denied by said occupant, a jury of twelve freeholders was, upon the application of said Commissioner, by a precept issued by me, duly summoned to inquire into the premises; and the said jury being duly 1 The warrant is to bo issued in ten days afler the finding of the jury, provided the cosio are not eooner paid. HIGHWAYS. 315 assembled and sworn, after due notice to said occupant, as required by law, and having heatd the proofs and allegations produced and submitted by the parties respectively, certified in writing, that an en- croachment had been made by C. D., the occupant of said land : And whereas, the costs of said inquiry amount to dollars and cents, which remain unpaid : you are, therefore, commanded to levy the said costs of the goods and chattels of the said C. D., and bring the same before me without delay. Witness my hand and seal, the day of , 18 . G. H., Justice, [l. s.J § 671. Order of Commissioners of Adjoining Towns for Laying out a Highway on the Line between the Towns. County, ss: At a meeting of the Commissioners of Highways of the towns of and , in said county of , held in said town of , on this day of ,18 , for the purpose of lay- ing out a highway upon the line between the said towns : It is ordered and determined by the said Commissioners, that a highway be laid out upon the line between the said towns, according to a survey thereof, which the said Commissioners have caused to be made, as follows : \insert survey f\ and that the said line above described be the centre of the said highway, and that the said highway be of the width of rods : And it is further ordered, that the said highway be divided into two road districts, as follows : that part thereof from to , shall be one of the said road districts, and shall be allotted to the town of ; and the residue of the said highway shall be the other of the said road districts, and shall be allotted to the town of In witness, whereof, the said Commissioners have hereunto sub- scribed their names, the day of ,18 . E. F.,. Commissioner of Highways of the Town of , M. P., Commissioner of Highways of the Town of § 572. Application for a Private Boad. To E. F., the Commissioner of Highways of the Town of , in tie County of : I, A. B., the undersigned, a resident of said town, and liable to be assessed for highway labor, do hereby make application to you, the said Commissioner, to lay out a private road for my use, commencing 316 NEW CLERK'S ASSISTANT. &c., [insert a description of the road as applied for,] and passing through the land of C. D., in said town. Dated the day of , 18 . A.B. § 573. Notice to the Occupant on an Application for a Private Soad} To C. D., of the Town of , in the County of : Take notice, that I have applied to E. R, Commissioner of High- ways of said town, to lay out a private road for my use through youi land [or, through land of which yon are the occupant;] and that twelve disinterested freeholders will meet on the day of instant, [or, next,] at ten o'clock in the forenoon of that day, at the house of R. R, in said town, to view the lands through which the road is applied for; to determine whether the same be necesssary, ac- cording to the statute ; and to assess the damages. Dated, &c., [as in § 572.] A, B. § 574. Notice to the Town Clerk requiring a Jury to be drawn, to He-assess the Damages for Laying Out or Altering a Pri- vate Road. To C. D., Town Clerk of the town of : Take notice, that I am dissatisfied with the assessment of damages made by the jury of freeholders called and sworn to certify and de- termine with regard to the necessity and propriety of laying out [or, altering] a private road through the land of M. B., in said town, whose certificate, dated on the day of ,18 , is now on file in your office ; and that I require you to draw a jury, in ac- cordance with the statute in such case made and provided, on the day of instant, [or, next,] at o'clock in the noon of that day, to re-assess the said damages. Dated the day of ,18 E. R, Commissioner of Highways of said town of 1 The remaining forms necessary in this proceeding, may be prepared from those given in ottier cases. The freeholders are to be sworn, &c., in the same manner as upon an application to lay out a public road. 1 R. S. (3d ed.) C32, § 93, et seq. The amount of the damages sustained by the opening of a private road, as fixed by the jury, together trith the expenses of the proceeding, must be paid by the person to be benefited. Amended Constitution, Art. i, § 7. The Commissio.iel should make an order establishing the road, in accordance with the certificate of the free, holders, unless he is dissatis^ed with the as- sessment of the damages, ir. which case he must give the notice to tlia Town Clerk re- quiring ajury to be drawn. HIGHWAYS. 317 § 575. Notice to Persons Interested that a Jury will be drawn to He-assess the Damages} ToA. B.: Take notice, that a jury -will be drawn by C. D., Town Clerk of the town of , at his office in said town, on the day of instant, \or, next,] at o'clock in the noon of that day, to re-assess the damages for laymg out \or, altering] a private road through the land of M. B., in said town, heretofore assessed by a jury of freeholders, to wit, on the day of mstant, [or, last past.] Dated, &c., \_as in § 674.] 1 The other forms necessary in this proceed- ing, may be prepared from those heretofore elren in other cases of re-assessments. The juryistobedrawnbythe Town Clerk of the town in which the private road is situated, from the jury list of ruch town ; but, in all other respects, the proceedings are to be con- ducted in the same manner as if it were a question concerning a public road. CHAPTER XXin. HUSBAND MD WIFE. PEACTICAL REMARKS. 1. Marriage is regarded in law as a civil contract, to whicli the consent of parties capable of contracting, is essential. From the na- ture of this contract^ it exists during the lives of the two parties, unless dissolved from causes which defeat the marriage, or from re- lations imposing duties repug-nant to matrimonial rights and obliga- tions.' 2. The age of consent to marriage, by the civil, as well as ths common law, is fixed at fourteen in males, and twelve in females. In the State of Ohio, the age of consent fixed by statute is eighteen in males, and fourteen in females ; and ia Massachusott'?, it is seven- teen in males, and fourteen in females." 3. No peculiar ceremonies are requisite, by the common law, to the valid celebration of marriage ; the essence of the contract being the consent of the parties, that alone is. required. It is not necessary that a clergyman should be present to give validity to a marriage : the consent of the parties may be declared before a magistrate, or simply before witnesses, — or subsequently confessed or acknow- ledged ; or the marriage may be inferred from continual cohabitation, and reputation as husband and wife, except in cases of civil actions for adultery, and in public prosecutions for bigamy.' 4. In Maine, Massachusetts and Connecticut, it is required by statute, that there be a publication of bans previous to the marriage ; that it be solemnized by a clergyman, or magistrate ; and if the male ' is under twenty-one, or the female under eighteen, the consent of ' 2 R. S. (3a ed.) 199i§ 1 ; 2 Kenl's Commen- I a 2 Kent's C-immentariea, (2d ed.) 78. taries, (2d ed.) 75, et seq; 4 Juhnsun, 52; 18 Id., | 8 2 Kent's (Jonimentarie^ (2d ed ) 86 ^; 4 846; 20 Id., 1; 7 Wendell, 47; 1 Hopkins, 493. | Johnson, 52; 1 Hill, 270. HUSBAND AND WIFE. 319 the parents or guardians must be given. In the State of New York, if the female be under the age of fourteen, the consent of the father, mother, or guai-dian, is required. Similar legislative regulations exist in New Hampshire, New Jersey, Kentucky, and other States. The most eminent jurists, however, concur in the opinion, that a marriage made according to the common law, without observing any of the statute regulations, would be valid.' 5. For the purpose of being registered and authenticated, accord- ing to the provisions of the Revised Statutes of this State, marriages are to he solemnized only by the following persons: ministers of the gospel, and priests of every denomination; Mayors, Recorders and Aldermen, of cities ; County Judges, and Justices of the Peace. It • is the duty of clergymen, magistrates, and other persons who per- form the marriage ceremony, to keep a registry of the marriages celebrated by them; and to ascertain, as far as practicable, and note in such registry, the ages of the persons married, and the time thereof, and their places of birth and their residences. It is also their duty, to allow the clerks of the school districts, within which they respectively reside, to inspect such registries, from time to time, and to furnish them such other information in their power as may be necessary to enable them to make the returns required by law. Clergymen and other persons solemnizing marriages, are also re- quired to ascertain that the parties are of sufficient age to contract marriage, and the names and places of residence of two of the attest- ing witnesses, if more than one be present, and if not, then the name and place of residence of such witness, which facts are, "in Kke man- ner, to be recorded in their registry of marriages.* 6. Whenever a marriage is solemnized, pursuant to the foregoing provisions, the minister, or magistrate, is required to furnish to either party, on request, a certificate thereof, specifying the names and places of residence of the parties married, and that they were knoWn to such minister or magistrate, or were satisfactorily proved, by the oath of a person known to him, to be the persons described in such certificate, and that he had ascertained they were of sufficient age to contract marriage ; the name and place of residence of the attest- ing witness or witnesses ; the time and place of such marriage ; and that after due inquiry made, there appeared no lawful impediment to such marriage." 7. Every such certificate, signed by a magistrate, if presented to the Clerk of the. city or town where the marriage was solemnized, or to the Clerk of the city or town where either of the parties reside, within six months after such marriage, must be filed by such Clerk, < 2 Kent's Commentaries, (3d ed.) 90, 91 ; 1 '3 E. B. (8d ed.) 199, 200, §§ T-9; Laws of tawaoflMl, chap. 25T. 134T, ohap. 162. ' 1 »2E. S. (8ded.)200, §12. 320 NEW CLEEK'S ASSISTANT. and entered in a book to be provided by him, in the alphabetical )r- der of the names of both the parties, and in the order of timt in which such certificate may be fiJed. A certificate signed by a min- ister may also be filed and recorded, in like manner, if there be en- dorsed thereon, or annexed thereto, a certificate of any magistrate residing in the same county with such Clerk, setting forth that the minister by whom such certificate is signed, is personally known to such magistrate, or has acknowledged the execution of the certificate in his presence ; or that the execution thereof was proved to such magistrate, by the oath of a person known to him, and who saw the certificate executed. The entry of every such certificate, made by the Clerk, must specify the names and places of residence of the persons married ; the time and place of marriage ; the name and oiS-. cial station of the person signing the certificate ; and the time of filing of the same." 8. Every such original certificate, the original entry thereof, made as above directed, and a copy of such certificate, or of such entry, duly certified, will be received in all courts and places, as presump- tive evidence of tlie fact of the marriage.' 9. It is the duty of Clerks of school districts, or, in case of their incapacity or a vacancy in the office, of the Trustees, or one of them, to ascertain, as far as practicable, and report in writing to the Town Clerk, of their town, or Alderman of their ward, on or before the fifteenth day of January in each year, the number of marriages which have occurred in their respective districts during the year preceding the first day of January ; the month and day of their oc- currence ; the namies, ages, and residences of the parties ; and the names and residences of the officers and clergymen by whom the same were solemnized. The Town Clerks and Aldermen are re- quired, within fifteen days after receiving such reports, to record the same in a book, and transmit a copy thereof, or an abstract, as the Secretary of State may prescribe, to the County Clerks or City In- spectors of their respective counties or cities. In the city of New York, the reports are to be made direct to the City Inspector, instead of through the Aldermen. County Clerks and City Inspectors are to forward an abstract of the reports, within fifteen days after receiv- ing the same, to the' Secretary of State, who is required to make a complete abstract, and transmit it to the Legislature, as soon as prac- ticable." 10. The recording of marriage certificates is discretionary with the parties ; the registry, however, is obligatory upon all persons per- forming the ceremony. >2E.S.(8decl.) 200,301, §§13-15. I • Laws of 1847, chap. 1B2. "2^8.(84 611.) 201, §16. ^ HUSBAND AND WIFE. 321 11. Marriage is not only a hona fide and valuable consideration, but tlie very highest known in law; and marriage settlements and agreements, entered into before marriage, are greatly favored, and will be enforced even as against creditors;* 12. By the statute law of New York, all contracts made between persons in contemplation of marriage, remain in full force after the marriage takes place.' 13. A settlement after marriage, in pursuance of a prior written agTeement, is good against creditors ; otherwise, if made in pursuance of a parol' agreement.' 14. A wife may contract with her husband after marriage, for a transfer of property from him to her, or to trustees for her, provided it be for a hona fide or valuable consideration. A voluntary separa- tion by husband and wife, and an agreement by deed, executed by them and a trustee, for the payment of an allowance for her separate maintenance, and containing a covenant of indemnity against debts contracted by her, is valid ; although it is well settled by the decisions of our own, and of the English courts, that the rights of the husband cannot be desti-oyed, nor the disabilities of the wife removed, by such ftgreemenf 15. A wife may make a conveyance to her husband, through a third person.' 16. Where a wife leaves her husband without just cause, he is not answei-able for her support ; but if she offer to return, and he refuse to receive her, his liability is revived.' 17. The real and personal property of a married woman, in the State of New York, and the rents, issues, and profits thereof, are not subject to the disposal of her husband, but are her sole and separate property, — except the same be liable for debts contracted by her husband prior to the seventh day of April, 1848, where the marriage was solemnized previous to that day.' 18. A married woman, in the State of New York, may receive real or personal property, by gift, grant, devise, or bequest, from any person other than her husband, and hold the same, and the rents, issues, and profits thereof, to her sole and separate use, and convey and devise the same, in the same manner, and with the like effect as if she were unmarried ; the same being neither subject to the dis- posal of her husband, nor liable for his debts.' I Laws of 1848, chap. 200 ; 2 Rents' Com- meniaries. (2d. eil.) 162, el seq. : 1 Jbhnson's Ch. Rep.,- 108, 460 ; 3 li, 77,860; 7 Id., -m ; 17 Johnson, 548 ; 6 Paige, 111, 513. a Laws of 1849, chap. 375. » 3 Johnson's Ch. Rep., 481 ; 3 Paige, 240, 440. 4 2 Kent's Commentaries, (2d. ed.) 166, et «q., 2 Johnson's Ch Rep., 637 ; 8 Paige, 67 ; 21 2 Wendell, 422 ; 25 Id., 64 ; 2 nill, 260 ; 3 Id., 399, and authorities theve cited. 6 2 Barbour's Ch. Rep., 232. " 4 Denio, 46, ' Laws of 1848, chap. 200 ; Laws of 1849, chap. 375. » Laws of 1848, chap. 200 : Laws of 1849, chap 375. 3-22 NEW CLERK'S ASSISTANT 19. Where deposits are made by a married woman, or by a single female, afterwards becoming a married woman, in her own name, in any savings' bank or mstitution, in the State of New York, the same may be paid to her, and her receipt or acquittance, will be a suflficient legal discharge to the corporation.' FORMS. § 576. Short Form of Marriage, for Magistrates. The officer performing the ceremony will direct the parties to join hands, and then say: " By this act of joining hands, you do take upon yourselves the relation of husband and wife, and solemnly promise and engage, in the presence of these witnesses, to love and honor, comfort and cherish each other, as such, so long as you both shall live : Therefore, in accordance with the laws of the State of New York, I do hereby pronounce you husband and wife." § 577. Marriage Certificate. Town of , j ®^- I do hereby certify, that on the day of instant, [or, last past,] at the house of R. F. [or, church,] ib. said town of , A. B., of, &c., and E. D., of, &o., were, with their mutual consent, lawfully joined together in holy matrimony, which was solemnized by me, in the presence of M. P., of, &c., and R. F., of, &c., attesting witnesses : And I do further certify, that the said A. B. and E. D. are known to me, [or, were satisfactorily proved, by the oath of R. F., known to me,] to be the persons described in this certificate ; that I ascertained, previous to the solemnization of the said marriage, that the said parties were of sufficient age to con- tract the same ; and that, after due inquiry by me made, there ap- peared no lawful impediment to such marriage. Given under my hand, this day of , 18 . G. H., Rector of, &c., [or, Justice, &c.] > Laws of 1850, chap. 91. HUSBAND AND WIFE. 323 § 578. Magistrate's Certificate. County, ) Town of , P^ I do hereby certify, that G. H., Rector of, &o., by whom the fore- going [or, annexed; or, within,] ceilificate is signed, is personally known to me, and has acknowledged the execution of said certificate in my presence, this day of , 18 : [or, that on the day of , 18 , personally came before me, M. P., to me known, who being by me duly sworn, did depose and say, that he was well acquainted with G. H., Rector of, (fee, and knew him to be the same person who executed the foregoing [or, annexed ; or, within] certificate ; and that he was present and saw the said G. H., execute the same.] S. T., Justice, &c. •• § 579. Oath to Witness Proving Identity of Parties. You do solemnly swear, that you will true answers make to all such questions as shall be put to you, touching the identily of A. B. and E. D., here present § 580. Oath to Witness Proving Certificate. Yon do solemnly swear, that you wiU true answers make to all such questions as shall be put to you, touching the execution of this certificate. § 581. Marriage Articles. This indenture of three parts, made, &c., between A. B., of, &c., of the first part, E. D., of, &c., daughter o£ &c., of the second part, and C. D., of, &c., and E. F., of, &c., of the third part, witnesseth: That whereas, the saidsE. D. is seized in fee, of and in, certain lands and tenements, with their appurtenances, situate, lying and being, [give the town, covmty, or state ;'\ And whereas, a marriage is shortly intended to be solemnized between the said A. B. and E. D., with whom the said A. B. is to have and receive dollars in money, over and besides the lands, &c., above mentioned, as and for her marriage portion : Now, therefore, it is covenanted and agreed, by and between the said parties to these presents, as follows: First,i}aR said A. B., for himself, his heirs, executors and administrators, doth covenant and agree, to and with the said C. D. and E. F., their heirs and assigns, that they, the said A. B., and E. D., his intended wife, 324 . NEW CLERK'S ASSISTANT. in case the said intended marriage shall be solemnized, by some good and sufficient conveyance, or conveyances, will settle and assure the aforesaid lands and tenements, with the appurtenances, whereof she, the said E. D., is seized as aforesaid, on and to the said C. D. and E. F., to the use and behoof of the said A.. B., during 'the term of 'his natural Hfe ; and from and after the decease of the said A. B., then to the use and behoof of the said E. D., his intended wife, for and during the term of her natural life; and from and after her de- cease, then to the use and behoof of the heirs of the body of the said E. D., by the said A. B. lawfully to be begotten; and on the default =of such issue, then to the use and behoof of the said E. B., her heirs and assigns forever, and to and for no other use, intent or -purpose, whatsoever. And, secondly, for as much as the said A. B. is not at present seized, or possessed, of any estate sufficient to make a jointure tor the said E. D., equivalent to her fortune, the said A. B., doth for himself) his heirs, executors and administrators, covenant, grant and agree, to and with the said C. D. and E. F., their heirs and assigns, that in case the said intended marriage shall take effect, he, the said A. "B., shall and will, by his last will and testament, in writing'or otherwise, give and assure unto the said E. D. the sum of dollars, of lawful money of the United States, to be by her received and taken, to her own proper use and benefit, in case she shall sur- vive the said A. B. In witness whereof, the said parties have hereunto set their hands and seaJs, the day and year above writtea Sealed, signed and dehvered, ) A. B., [l. s.] in presence of J E. D., [l. b.] a. H. «fcc., &c., § 582. Settlement of an Estate, in Contemplation, of Marriage. This indenture of three parts, made, &c., between E. D., of, &a, of the first part, C. D., o% &c., of the second part, and A. B,, of, &c., of the third part, witnesseth : That whereas, a marriage is intended to be solemnized between the said parties of the first and third parts, and the said E. D. is possessed of certain personal estate, to wit: the sum of dollars, which is now deposited in the bank, in the city of , and shares of the capital stock of the insurance company in : Now, there- fore, in consideration of the premises, and of one dollar paid by the said 0. D. to the said E. D., the receipt whereof is hereby acknow- ledged, the said E. D. doth hereby assign, transfer and set over, to the said C. D,, and his executors and administrators, all the moneys. HUSBAND AND "WIFE. 325 property and' effects, above mentioned, to hold the same to him the said C. D., and his executors and administrators, upon the special trusts and for the uses and purposes following, to wit : First, That mitil the solemnization of the said marriage, the said C. D. shall pay over to the said E. D., or shall empower her to receive for her own use, all the income, profits and dividends, arising from the said monies and effects, and from any other estate which may be substituted therefor, as is hereinafter provided. Second, That from and after the solemnization of the said marriage, and during the coverture of the said E., the said C. D. shall receive and collect the income, profits and dividends, of the said trust mo- neys and effects, or of any other substituted estate, so often and whenever the same shall be payable ; and, after deducting all indi- vidual expenses, shall pay over the same, or so much thereof as she shall not direct to be added to the principal for the purpose of accu- mulation, to the said E., upon her sole and separate receipt therefor, and free from the control or interference of her said husband, or any other person whomsoever. Third, That in case of the decease of the said E., after the solem- nization of the said marriage, and during the life of her said husband, the said money and effects shall be transferred and paid over by the said trustee, to such person or persons, as she, the said E., by an in- strument or note in writing, subscribed by her in the presence of at least two competent witnesses, shall order and appoint to receive the same ; and in default of her making such appointment, the same shall be transferred and paid to the said A. B. ; and in case of his decease before the said property shaE be actually transferred and paid over to him, then to such person or persons as would be the legal representatives of the said E., by the statute for tlie distribution of intestate estates. Fourth, That in the event of the decease of the said A. B., during the lifetime of the said E., all the property then held in trust under this indenture, shall be transferred and conveyed back to the said E. ; and until so transferred the trustee shall pay over to her, or empower her to receive, the income, profits and dividends of the same, for her own use. Fifth, That the said trustee shall have power, with the approba- tion, or at the request of the said E., expressed in writing, to sell and dispose of the said trust estate, or any pai't of it, and the proceeds to invest in other personal or real estate, according to the written di- rection of the said E. ; and the estate so purchased shall be had and held by the trustees, upon the same trusts, and for the same- uses and purposes as aforesaid. Sixth, That in case of the decease of the party of the second part, or of his resignation of said trust, he, or his executors or administrar tors, shall convey, transfer and pay over, the whole of the trust estate 326 NEW CLERK'S ASSISTANT. tten held by him, to such person, or persons, as may be appointed in writing by the party of the first part, to be the trustee, or trus- tees, under this indenture ; and such new trustee, or trustees, shall have all the powers, and shall hold the trust estate subject to all the provisions, herein set forth and expressed; and the receipt of such new trustee, or trustees, for the trust property, shall be a complete acquittance and discharge to the said party of the second part, his executors and administrators; and, in like manner, other new trus- tees may be appointed from time to time, as occasion may require. And the said party of the second part doth hereby signify his acceptance of the said moneys and, eflFects, and doth eng-age to hold and manage the same, upon the trusts, and for the uses herein men- tioned. And the said party of the third part doth hereby signify his assent to the provisions of this indenture, and doth covenant to and with the said party of the second part, and his successors in the said trust, to permit the said party of the first part, after the solemnization of the said intended marriage, to receive the aforesaid income, profits and dividends, to her sole and separate use, and freely to dispose of the trust estate, by her will, or by her testamentary appointment, and not to interfere with the said trust estate, otherwise than in conformity to the provisions of this indenture. In witness, &c., [a« in § 581.] 4 § 583. Agreement for Settlement before Marriage} This agreemeilt, made and entered into this day of, &c., between A. B., of, &c., of the first part, and E. D., of, &c., of the second part, [add the third party, if necessary,'] witnesseth : That whereas a marriage is about to be had and solemnized between the said parties ; and the said party of the first part is desirous of mak- ing provision for a fit and proper settlement, to and for the use and benefit of the said E. D., his intended wife : Now, therefore, the said party of the first part doth hereby agree, that if the said marriage shall be had and solemnized as aforesaid, he shall or will, on or before the day of next, assign, transfer, and set over, unto C. p., of, &c., by good and sufficient transfers, assignments and con- veyances, shares of the capital stock of the railroad company, now owned by and belonging to the said party of the first part ; and also the sum of dollars in money ; to have 1 Special conilitions and provisions may be inserted in the anto-nuptial agreement, extend- ing tUe benefit of the trust to the ohildreu of the parties. See § 532. HUSBAND AND WIFE. 327 and to hold the same unto the said C. D., to and for the sole and separate use and benefit of the said E., during the term of her natu- ral life. And it is further agreed between the said parties, that in case the said C. D. shall refuse to accept the said trust, then the said shares of stock and money as aforesaid, shall be transferred, assigned and set over, unto such person as shall be nominated in writing. by the said party of the second part, as such trustee, in the place and stead of the said 0. D., to be held by him to and for the use and benefit of the said E., as aforesaid ; and that the articles of settle- ment to be executed in pursuance hereof, shall contain a provision for the appointment of a trustee to fill any vacancy which may trans- pire, except as above provided, by the nomination in writing of the said party of the second part In witness, &c., \_as in § 581.] § 584. Jointure in Lieu of Dower. This indenture, made and entered into this 'day of, &c., between A. B., of, &c., of the first part, E. D., of, (fee, of the second part, and C. D., of, &c., of the third part, witnesseth : That the said A. B., in consideration of a marriage about to be had and solemnized between him, the said A. B., and the said E. D., does, for himself, his heirs and assigns, covenant, grant and agree, to and with the said C. D., his heirs and assigns, that he, the said A. B., his heirs and as- signs, shall and will, forever hereafter, stand seized of and in a cer- tain tract or parcel of land, with the appurtenances, situate in the town of in the county of , and State of New York, aforesaid, and bounded and described as follows, [description fl to the uses following, that is to say : to the use of the said A. B., for and during the term of his natural Ufe, without impeachment of waste, and after his marriage with the said E. D., and after his de- cease, to her use, so long as she shall remain his widow and unmar- ried, [or, during her natural hfe,] without impeachment of waste, for her jointure, and in lieu and satisfaction of her whole dower in his estate ; and after his decease, and the expiration of her estate, to the use of his heirs and assigns forever. And the said E. D., in consid- eration of the premises, and in consideration of the stim of one dol- lar, paid to her by the said A. B., does, for herself, her heirs, executors, and administrators, covenant and agree with the said A. B., that the lands so assigned to her shall be in fuU satisfaction of her dower in his estate, and shall bar her from claiming the same, if she shall survive, after said marriage ; and further, if the said mar- riage shall be had, and she shall survive him, thai she will not claim any share in his personal estate, unless some part thereof be given to 328 NEW CLERK'S ASSISTANT. her by his will, or some act done by hiin subsequent to the execu- tion of these presents. In witness, &c., [as in § 581.] § 585. Articles of Separation. This indenture of three parts, made, &c., between A. B., of, &e., of the first part, and E. B., his wife, of the second part, and C. D., of, &c., of the third part, witnesseth : Whereas, divers unhappy dis- putes and differences have arisen, between the said party of the first part, and his said wife, for whioh reason they have consented add agreed to live separate and apart from each other during their natu- ral life : Now, therefore, the said party of the first part, in conside- ration of the premises, and in pursuance thereof, doth hereby covenant, promise and agree, to and with the said C. D., and also to and with his said wife, that he shall and will allow and permit his said wife, E. B., to reside and be in such place and places, and in such family and families, as she may from time to time choose, or think fit to do ; and that he shall not, nor will, at any time sue, mo- lest, disturb, or trouble any person whomsoever, for receiving, enter- taining or harboring her ; and that he will not claim, or demand, any of her money, jewels, plate, clothing, household goods, or furniture, which the said E. B. now hath in her power, custody, or possession, or which she shall or may at any time hereafter have, or which shall be devised or given to her, or that she may otherwise acquire ; and further, that the said party of the first part shall and will well and truly pay, or cause to be paid, unto the said C. D., for and towards the support And maintenance of his wife, the said E. B., the yearly sum of dollars, free and clear of all charges and deductions whatsoever, for and during her natural life, payable quarterly, at or upon the first day of January, April, July, and October, in each and every year during her said natural life ; which the said C. D. doth agree to take, in full satisfaction for her support and maintenance, and all alimony whatever. And the said C. D., in consideration of the sum of one dollar, to him duly paid by the said A. B., doth cov- enant and agree, to and with tlie said party of the first part, to indemnify and bear him harmless, of and from all debts of his said wife, E. B., now contracted, or that m&y h€;reafter be contracted by her, or on her account ; and if the said party of the first part shall be compelled to pay any such debt or debts, the said C. D. hereby agrees to repay the same, on demand, to the said party of the firs* part, with all damages and loss that he may sustain thereby. Inwitness, &c., [as in § 581.] CHAPTER XXIV HOMESTEAD EXEMPTION LAW. PRACTICAL BEMAEKS. 1. In the State of New York, the lot and buildings thereon, occu- pied as a residence and owned by a debtor, being a householder and having a famUy, to the value of one thousand dollars, will be exempt . from sale on execution after the first day of January, 1851, for debts contracted subsequent to the tenth day of April, 1850. This exemption is to continue after the death of the householder, for the benefit of the widow and family, — some, or one of them continuing to occupy such homestead, — until the youngest becomes of age, and until the death of the widow. No release or waiver of such ex- emption will be valid, unless the same be in writing, subscribed by the householder, and acknowledged in the same manner as convey- ances of real estate are required to be acknowledged. 2. To entitle any property to this exemption, the conveyance thereof must show that it is designed to be held as a homestead, or if already purchased, or if the conveyance does not show the design a notice that the same is designed to be so held, and containing a full description thereof, must be executed and acknowledged by the person owning the property, and recorded in the office of the clerk of' the county in which the same is situate. 3. This exemption will not extend to sales for the non-payment of taxes or assessments, or for a debt contracted for the purchase money, or prior to the recording of liie deed or notice. 4. Where the premises claimed to be exempt as aforesaid, are worth more than one thousand dollars, in the opinion of a Sheriff holding an execution against the householder, it will be the duty of the former to summon-six qualified jurors of his county, who shall upon oath, to be administered by him, appraise tbe said premises. If the jury are of opinion that the property may be divided without in- jury to the interests of the parties, they must set off bo much ■J'^^' NEW CLERK'S ASSISTANT. thereof, including the dwelling house, as, in their opinion, will be worth one thousand dollars, and the residue may be sold by the Sheriff in the same manner as other real property not so exempt If the jury are of opinion that the property cannot be divided as afore- said, and that the same is worth more than one thousand dollars, they must make and sign an appraisal of the value thereof, and de- liver the same to the Sheriff, who will deliver a copy thereof to the execution debtor, or to some of his family of suitable age to under- stand the nature thereof, with a notice thereto attached, as in the form hereinafter given.' FORMS. § 586. Clause to le Inserted in a Deed of the Property designed to be Exempt. The premises above described and hereby conveyed, are designed to be held as a homestead, exempt from sale on execution, according to the provisions of the act entitled " An Act to Exempt from Sale on Execution, the Homestead of a Householder having a Family." — passed April 10, 1850. § 587. Notice to the County Clerk of design to hold a Homestead Exempt, and Aclcnowlednment. To E. B. C, Esquire, County Clerk of County : Sir: You wUl please take notice, that I design to hold as a home- stead exempt from sale on execution, accordmg to the provisions of the act entitled "An Act to Exempt from Sale on Execution the Home- stead of a Householder having a Family." — passed April 10, 1850, — I Laws of 1850, chap. 260. HOMESTEAD EXEMPTION LA"W. 331 the following described property and premises, to wit: \_Describe tlve premises in full, in the same manner as in a rfeeci] Dated the day of ,18 Yours, &o. A.B. Comity, ss:' On tliis day of , in the year one thousand eight hundred and fifty-one, before me personally came A. B., to me known to be the individual who executed the above notice, and acknowledged that he executed the same for the pui-pose therein mentioned. W. W., Justice of the Peace in and for said county of § 688. Helease or Waiver of the Exemption. In consideration of the sum of one doUar to me in hand paid by C. D., of the town of , in the county of , and state of New York, the receipt whereof is hereby acknowledged, I do hereby release and waive any and all benefit of the act entitled "An Act to Exempt from Sale on Execution the Homestead of a House- holder having a Family," — passed April 10, 1850 — so that any property held by me as exempt under or by virtue thereof may be levied upon and sold on any execution issued against me for any demand owing to the aforesaid C. D. Witness my hand, this day of , 18 . A.B. [Add Certificate of Acknowledgment, as in § 687.] § 689. Oath to Jurors. You, and each of you, do solemnly swear, that you will well and truly perform the duties of a juror, in regard to the matters submitted to your consideration, according to the act entitled " An Act to Ex- empt from Sale on Execution the Homestead of a Householder having a Family," — passed April 10, 1850. 1 For other forms of ackuowledgmeDt, see Chapter I. 332 NEW CLERK'S ASSISTANT. § 590. Certificate of Jurors setting off a Portion, of the Premises, Supreme Comt, A.B. ^ against > County, County, ss: C. D. ) We, the undersigned jurors, summoned by the sheriff of said county, who holds an execution against C. D., the defendant in the above en- titled cause, in pursuance of the act entitled "An Act to Exempt from Sale on Execution the Homestead of a Householder having a Family," — passed April 10, 1850, — do hereby certify, that we have exam- ined the following described premises situate in the town of , in said county, to wit: [iiisert here a description of ike premises:'] which said' premises are owned by C. D. aforesaid, and are claimed by him to be exempt from sale on execution according to the act aforesaid, and that in our opinion the said premises* are worth thousand dollars, and may be divided without injury to the interests of the parties concerned therein : And we do hereby set off to the said A. B., the following described portion of the said premises, to wit: Idescribe the same ;] which last mentioned piece or parcel of land, including the dwelling house thereon, and the appur- tenances belonging thereto, is, in our opinion, worth thousand dollars. Dated , the day of 18 E, • F.; ) • H.. [; :o.,(fec.,) G. H., >• Jurors. &o.. § 591. Certificate that Property cannot he divided. Supreme Court, A. B. ^ against >■ County, ss : CD. ) We, the undersigned jurors, &c., [as in § 690 to the *, and then addi] are worth more than one thousand dollars, and cannot be di- vided without injury to the interests of the parties concerned therein And we do hereby appraise the value of tie said premises at thousand dollars. Dated, &c., [as in § 590.] HOMESTEAD EXEMPTION LA'W. ^3-T § 692. Notice of Sheriff to he Attached to the Copy of § 591, and Served on the Debtor, Supreme Court, A.B. against CD. Sir : You will please take notice that the foregoing is a copy of the certificate of appraisal this day made'byithe jurors, by me summoned as in said certificate mentioned ; and that, unless the surplus of the value of the premises described in said certificate, as appraised by said jurors, over and above one thousand dollars, be paid to me -within sixty days from the date of the service of this notice, the said premi- ses wiU be sold, by virtue of an execution bsued against you in the above entitled cause.' Dated the day of , 18 . Yours, &c., R T., Sherift of County. To Mr. C. D. 1 If the surplus is not paid within sixty days, the sheriff may advertise and sell the premises, as in other cases; and out of the proceeds of the sale, he must pay the execu- tian debtor one thousand dollars, which will be exempt from execution for one year theiv after, and apply the balance on the execution. The costs, and chareea of the eherifi*, must be deducted from such balance. CHAPTER XXV. JUSTICES' COUETS. PRACTICAL KEMARKS. 1. There are but two Mnds of actions in the Courts of Justice of this State, whether of record or otherwise, viz : civil and criminal actions.^ 2. Justices of the Peace have civil jurisdiction in the following ac- tions, and no other : 1. An action arising on contract, for the recovery of money only, if the sum claimed does not exceed one hundred dollars: 2. An action for damages for an injury to the person or to real pro- perty, or for taking, detaining, or injuring, personal property, if the damages claimed do not exceed one hundred dollars; , 3. An action for a penalty, not, exceeding one hundred dollars, given by statute; 4. An action commenced by attachment of property, as hereinafter specified; 5. An. action upon a bond, conditioned for the payment of money, not exceeding one hundred dollars, though the penalty exceed that sum; the judgment to be given for the sum actually due. Where the pay- ments are to be made by instalments, an action may be brought for each instalment, as it shall become due; 6. An action upon a surety bond taken by them, though the penalty or amount claimed exceed one hnndred dollars: 7. An action on a judgment rendered in a court of a Justice of the Peace, or of a Justice's or other inferior court, in a city; but no action can be brought on a judgnc-ent rendered by a Justice of the Peace, in the same county, within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the county, — or that the process in the original action was not personally served on the iefendant, or on all the defendants, — or in case of the death of some of ' Laws of 1849, chap. 438, (Code of Procedui-e,) § 4 JUSTICES' COURTS. 335 the parties, — or where the docket or record of the judgment has been lost or cl3stroyed.' 3. Justices may also take and enter judgment, on the confession of a defendant, where the amount confessed does not exceed two hundred and fifty doUai-s." 4. No Justice of the Peace has cognizance, however, of a civil ac- tion in which the People of tliis State are a party, except for penal- ties not exceeding one hundred dollars ; nor of an action in which the title to real estate comes in question ; nor of a civil action for an assault, battery, false imprisonment, libel, slander, malicious prosecu- tion, criming,! cenversation, or seduction ; nor of a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the Justice, exceeds four hundred dollars ; nor of an action against an Executor or Administrator, as such.' 5. Civil actions may be commenced in Justices' Courts, either by . the voluntary appearance of the parties, or by process. There are three different forms of process — summons, warrant, and attach- ment Where a suit is instituted without process, it will be deemed to have been commenced at the time of joining the issue : if a sum- mons or attachment be issued, the suit wUl be deemed commenced on the day when the process is delivered to the Constable ; if the process be a warrant, the suit will be deemed commenced at the time of the arrest of the defendant* 6. There are two lands of process by summons, generally distin- guished as a long summons and a short summons. A long summons is the usual process against all persons residing in the county where it issues ; and it is the only one which can issue, of course, in any case, against a freeholder, or an inhabitant of any county having a family. A short summons is the proper form of process to be issued in favor of a non-resident plaintiff, suing as such, when the defendant cannot be arrested under the provisions of the non-imprisonment act; and it is the only process, except an attachment, which can be issued, in similar cases, against a non-resident defendant Any other process would be void. But where there are joint debtors, one or more of whom reside in the county, suit may be commenced against them by lon^ summons.' 7. Warrants may be issued in actions for injuries to the person, rights, or property of another; or for taking or detaining personal property ; or for the recovery of money collected by a public officer , for official misconduct or neglect of duty ;- or misconduct or neglect I Laws of 1849, ch. 438, (Code of Procedure) Pari I. tille vl., § 53; Id., Part II. title i. 5 71. 3 Laws of 1849, chap. 43Si (Code of Pro- cedure,) Part'L, title vi ,563, eub. 8; 2 R. S. (3d ed.) 342, §§ 114-116 ; 9 Wendell, 669. 8 Laws of 1849, chaf . 438, (Code of Pro- cedure,) Part I., title vi., § 64. • 2 R. S. (3d ed.) 326, § 12, 13. » 2 R. S. (3d ed.) 326, 327, (. 14 et eeq.: Laws of 1831, chap. 300, SS 30-33 ; 15 Wen. dell, 652; 16 Id., 36; 17 Id., 617; 3 Hill, 323; 6 Id., 186; 6Id.,631; IDenio, 176; 2 Id., 95. 336 KEW CLERK'S ASSISTANT. in any professional employment ; subject, however, to the provisions of the statute which restrict the use of this process to the following Gases, viz: Where the defendant is a non-resident; where it appears to the satisfaction of the Justice, by the aflSdavit of the applicant, or ef any other witness, that the person against whom the warrant is desired, is about to depart from the county, with intent not to return thereto; where the defendant is an inhabitant of the county, having a family, or a freeholder of the same county, and it shall in like man- ner appear to the satisfaction of the Justice, that the plaintiff will be in danger of losing his demand, unless such warrant be granted*; where the plaintiff is a non-resident, and tenders to the Justice secu- rity for the payment of any sum which may be adjudged against him in the suit; and at the option of the Justice, against a resi- dent defendant, not a freeholder, nor an inhabitant haying a family ; or against a defendant upon whom a summons shall have, been served, only by leaving a copy, or in any other way than by reading or delivering a copy to him personally, and who shall not have appeared at the time and place appointed in such summons, nor shown good cause for not appearing.' 8. There are two kinds of attachments, long and short. The lat- ter issues against a non-resident defendant, and may be had when a short smnmons is also a proper process ; and either may be taken, at the option of the party. No affidavit is necessary on an applica- tion for a short attachment A long attachment issues, when it is made to appear to the satisfaction of the Justice to whom application is made, that the debtor has departed, qx is about to depart, from the county where he last resided, with intent to defraud his credi- tors, or to avoid the service of civil process; or that such debtor keeps himself concealed, with the like intent ; the same process is- sues, under the non-imprisonment act, when the Justice is satisfied that the defendent is about to remove from the county some of his property, with intent to defraud his creditors, or that he has assigned^ disposed of, secreted, or is about to assign, dispose of, or secrete, any of his property, with the like intent. The Revised Statutes limit the nature of demands, for which attachments may be sued out, to those existing against the debtor personally, whether liquidated or not, arising upon contract, or upon judgments rendered within-this ■State. The non-imprisonment act extends the process to suits for the recovery of any debt or damages, arising upon contract, express or im- ;plied, or upon any judgment, whether rendered in this State or not The demand, however, must be against the debtor personally. In all cases, the facts and circumstances relied on as the foundation for the issu- ing of an attachment must be set forth distinctly in the affidavit accom- ' ZR.'s. (3ded.)327, 328, 5518-23; Laws I 389: 7Hy434: 13Id.,-48; 15 Id., 654: W Of 1831, chap: 300; Laws of 1840, chap. 165 ; Id., 35; .17 Id., 61 ; 2 HlU, S96; 4 Denio, 176 Id., chap. 377 ; 2 Cowen, 429 ; 3 Wendell, | JUSTICES' COURTS. 337 panying ihe application. The only material difference between the pro- ceedings on attachments issued under the statute, and those issued under the non-imprisonment act, subsequent to the issuing of the pro- cess, is, that in the latter case, where property is attached, and a copy of the inventory and attachment is not personally served, and the de- fendant does not appear, the. plaintiff may take a short summons; and if the defendant be personally served therewith, or cannot be fotmd after diligent inquiry, the Justice may proceed to hear and determine the cause in the same manner as upon a summons per- sonally served.' 9. An affidavit for an attachment, stating facts and circumstances, on belief only, is fatally defective ; but if the party swears he has been informed of the facts set forth, the affidavit will be sufficient' 10. On an attachment against joint debtors, a Justice cannot render judgment, where one only of the defendants has been served with the process. The proceeding must be dismissed, or a summons issued.' 1 1. When the name of any defendant sued in a Justices' Court, is not known to the plaintiff, he may be described in a summons, or warrant, by a fictitious name ; and if a plea in abatement be inter- posed by such defendant, the Justice before whom the suit is pending may amend the proceedings, according to the truth of the matter, and proceed in the cause, in like manner as if thedefendant had been sued by his right name.' 12. It is no part of the official duty of a Justice to deliver a sum- mons to a constable.* 13. Where a summons is returned served by copy, and another summons is issued, the suit will be legally continued, even in cases affected by the statute of Umitations.' 14. The pleadings in courts of Justices of the Peace are — 1, the complaint by the plaintiff; 2, the answer by the defendant The pleadings may be oral, or in writing; if oral, the substance of them must be entered by the Justice in his docket ; if in writing, they must be filed by him, and a reference made to them in the docket The complaint must state, in a plain and direct manner, the facts constituting the cause of action. The answer may contain a denial of the complaint, or any part thereof, and notice, also, in a plain and direct manner, of any facts constituting a defence. Pleadings are not required to be in any particular form, but must be such as to enable 1 2R. S. (3d ed.) 32S, 5 27 et eeq.: Laws of 1831, chap. 300, S 34; Laws of 1842, chap. 107 : 19 Johnson, 196 : 3 Cowen, 206 : 6 Id., 234 10 Wendell, ^: 12 Id., 359: 13 Id., 46,404; 14 Id , ^ ; IS Id., 466, 479 ; 20 Id., 77,146,184: 23 Id,, 336; 24 Id., 485, j 6 Hill, S64; 6 Id., 311; 1 i)enio, 186. ' 4 Denio, 93. » 2Coraslock, 112. < Laws of 1330, chap. 32a > 3 Denio, 12. • 3 Denio, 12. 338 NEW CLERK'S ASSISTANT. a person of common understanding to know what is meant Either party may demur to a pleading of his adversary, or any part thereof, when it is not sufficiently explicit to enable him to understand it, or it contains no cause of action or defence, although it be taken as true ; if the court deem the objection well founded, it must order the plead- ing to be amended, and, if the party" refuse to amend, the defective pleading must be disregarded. In an action or defence, founded upon an account, or an instrument for the payment of money only, it will be sufficient for a party to deliver the account or instrument to the court, and to state, that there is due to him thereon from the ad- verse party a specified sum, which he claims to recover or set off.'^ 15. A variance between the proof on the trial, and the allegations . in a pleading, will be disregarded as immaterial, imless the court shall be satisfied that the adverse party has been nusled to his prejudice thereby. The pleadings in a Justices' Court may be amended, at any time before the trial, or during the trial, or upon appeal, when, by such amendment, substantial justice will be promoted. If tbe amendment be made after the joining of the issue, and it be made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment must be granted. The court may also, in its discre- tion, require as a condition of an amendment, the payment of costs to the adverse party, to be fixed by the court; but no amendment can be allowed after a witness is sworn on a trial, when na adjourn- ment will be thereby made necessary." 16. In case a defendant does not appear and answer, in an action before a Justice of the Peace, the plaintiff cannot recover without proving his case." 17. At the joining of the issue, the court may require of either party, at the request of the other, to exhibit his account or demand, or state the nature thereof as definitely as may be in his power, at that or some other specified time ; and in case of the default of the party, he will be precluded from giving evidence of such paiis thereof as shall not have been so exhibited or stated.' 18. If the defendant do not appear on the return of a summons or attachment, the Justice before whom the suit is brought may adjourn the cause to a time certain, not exceeding eight days, on the simple motion of the plaintiff, without oath,— and so if the defendant appear and do not object; but the defendant may object, and require as a condition of the adjournment, that the plaintiff, or his attorney, make oath that he cannot, for want of some material testimony, or witness, safely proceed to trial An adjournment on the application of the 1 Laws of 1319, chap. 438, (Code of Froce- 1 i Ibid., loc. cit, ihiiB.)PartI., tills vi., 164, > Ibid., loc. cit. I < Ibid., loc. cit, JUSTICES' COUBTa 339 plaintiff cannot be granted, at any other time tlian on the return of a summons or attachment, or the joining of issue without process, except upon an application for a commission, when the plaintiff is entitled to the same time and privileges as a defendant A defendant may make application for an adjournment, at the time of joining issue, in all cases, except where the suit is commenced by warrant on behalf of a non-resident plaintiff The defendant, or his attorney, may be re- quired, on such application, to make oath that he cannot safely pro- ceed to trial, for die want of some material testimony, or witness, to be specified by him. In addition to such oath, the defendant must, if required, execute the bond, a form of which is hereinafter given. A defendant may have a second or further adjournment, on giving security, if required, and proving, by his own oath, or otherwise, that he cannot safely proceed to trial, for want of some material testimony, or witness ; and that he has used due diligence to obtain such testi- mony, or witness. Where a suit is commenced by a non-resident plaintiff, the first adjournment is to be not less than three nor more than twelve days, unless the parties and Justice otherwise agree. In no case can the time of adjourning a dause exceed ninety days from the time of joining the issue, except with the consent of parties. A Justice may adjourn a cause, with or without the consent of parties, on his own motion, at the time of the return of a summons or attach- ment, or of joining issue without process, not exceeding eight days ; and he may hold a cause open, or adjourn it, on issuing an attach- ment for a witness, or a new venire. Justices have a discretion to exercise in refusing or granting an adjournment, which will not be interfered with on appeal, except there be a clear abuse of that di> cretion." 19. Consent will ^ve a Justice jurisdiction in respect to, parties, but not as to the subject matter of a suit' 20. A Justice of the Peace may, when an issue of fact shall have been joined before hint, upon the application of a party showing the materiality of the testimony of a witness beyond the reach of a subpoena, issue a commission to one or more persons to examine such witness on oath, upon intej^ogatories to be settled by the Justice ; and whenever, the defendant neglects to appear, or to plead in such action or suit> and the plaintiff makes appUcation for a commission to take the deposition of a material witness, the Justice may issue a com- mission without notice, — the interrogatories accompanying the same being proposed by the plaintiff, and settled by the Justice.' > 2 R. S. (3d. ed.) 335, 336, S 6S, el sea. ; 8 '■ Jahnson,426; 11 Id., 407- 13 Id., 828: 15 Id., I 492; lCowen,112,234,253;2Id.,i3S!7Id, 869; 1 Wendell, 464: 3 Id., 420; 10, Id., 497; 11 Id., 461,554; 3 HiU, 323 ■ 7 Id., 77. « 12 Johnson, 285 ; 17 Id., 63 ; 3 HilL 323. ' Laws of 1838, chap. 243 ; Laws of 1811, chap. 138 ; Laws 0/1847, chap. 329, 840 NEW CLERK'S ASSISTANT. 21. It must be made distinctly to appear, on an application for a commission, that the witness is material, and that he does not reside in the county where the suit is pending, nor in an adjoining county. An affidavit, stating that the witness is in " another county," and that he " is, or may be, material," is not sufficient* 22. Witnesses may be required to attend before any Justice of the Peace, in the same, or in an adjoining county, in pursuance of a sub- poena duly served." 23. A Justice of the Peace must enter judgment forthwith, on the yerdict of a jury; he cannot wait until the next day.' 24. When there is no jury, a Justice must render his judgment within four days after the trial. It need not be entered on his docket within that time, but a memorandum thereof must be made on the papers in the action.* 25. The plaintiff must be present, either in person or by attorney, when a verdict is rendered.' 26. A Justice of the Peace,.on the demand of a party in whose favor he shall have rendered a judgment, must give a transcript thereof, which may be filed and docketed in the office of the Clerit of the County where the judgment was rendered. The time of the receipt of the transcript by the Clerk must be noted and entered in the docket ; and from that time the judgment will be a judgment of the County Court. A certified transcript of such judgment may be filed and docketed in the Clerk's office of any other county, and with the like effect," in every respect, as in the county where the judgment was rendered, except, that it shall be a lien, only from the time of filing and docketing the transcript. But no such judgment for a less sum than twenty-five dollars, exclusive of costs, wiU be a lien upon real property.* 27. Where a transcript of a judgment is docketed in the office of the Clerk of the city and county of New York, such judgment will have tJbe same effect as a lien, and be enforced in the same manner as a judgment of the Court of Common Pleas of such city and county.' 28. Executions may be issued on a judgment in a Justice's Court, whether rendered before or after the passage of the act of 1849, at any time within five years after the rendition thereof, and must be made returnable sixty days from the date thereof. ,Where a judgment is docketed widi the County Clerk, the execution must be issued by him to the Sheriff of the County, and be executed in the same manner as other executions and judgments of the County Court, or, in the city and county of New York, of the Court of Common Pleas.' 17 Hill, 77. • 3 R. S. (3d. id.) 337, & 8L et seq: • 3 Denio, 12. 4 2 Comstock, 134. > 3 Denio, 12. • Laws of 1^9, chap. 438, (Code of Froc» dure, Pan I., title vi., § 63. < Ibid., Fait I., title rii., S 68. • Ibid., Pan I., title t1., § 6*. JUSTICES' COURTS. 341 29. A Justice of the Peace may renew an execution issued by him from time to time, by an endorsement specifying the amount due, if any thing has been paid or collected thereon, and the date of the renewal; the endorsement must be signed by the Justice.' 30. An execution issued by a Justice may be renewed while yet unsatisfied, though levy has been made ; provided there be not suffi- cient time to advertise and sell under if 31. The docket of a Justice is good evidence before himself, with- out proving its identity, or showing his official character.' 32. Where the statute requires a " bond " to be execute^ in any proceeding had before a Justice, a mere covenant, or agreement in writing, to become holden, on certain conditions, is not sufficient 33. Courts of Justices of the Peace, are not courts of record, and judgments rendered before them will be barred by the statute of limitations, even though docketed in the office of the County Clerk, at the expiration of six years from the vendition thereof 34. The Justices' Courts in the city of New York, and Justices' Courts in other cities, have jurisdiction in all civil actions similar to those in which Justices of the Peace have jurisdiction ; and, also, in actions upon the charters or by-laws of the corporations of their re- spective cities, where the penalty or forfeiture does not exceed one hundred dollars.' 35. Justices of the Peace have power to issue process for crimes committed in the county where they reside, but not for those com- mitted in another county, even if the offender be in the county where the Justice resides.' 36. Courts of Special Sessions are to be held by a single ma^s- trate, and all offences triable before such courts are to be tried with or without a jury, at the election of the prisoner. Any criminal warrant or process issued for an offence triable before a Court of Special Sessions, must authorize the officer executing it, to take the offender before some ma^trate in the town or city where the offence was committed, provided the magistrate issuing the same reside in some other town or city. The city of New York is excepted from the operation of this provision.' ' 2 R. S. {3d. ed.) 347, } 144. « 1 Denio, S74. • 1 Denio, 43*^. t 1 Denio, 184. • 4 Barbour's S. C. Rep., 442. • Laws of 1849, chap. 438, (Code of Froc» dura,) Fart I., title vii., 66 66, 67. ' 6 Hill, 164. • Laws of 1845, chap. 180, §§ 16,26. 342 NEW CLERK'S ASSISTANT. FORMS. § 593. Summons} Town of ,) ^. County, ) To any Constable of the said County, greeting: The people of the State of New York command you to summon A- B. to appear before me, the undersigned, one of the Justices of the Peace of the town aforesaid, at my office, \or, as the ease may ie,] in the said county, on the day of , at o'clock, in the noon, to answer C. D., in an action arising on contract, \or, in an action for damages for an injury to the person of the said C. D. ; or, as the cause of action may 5e,] to his damage one hundred , dollars or under. And have you then there this precept.. Witness my hand, the day of , 18 . J. H. B., Justice of the Peace. § 594. Affidavit/or Short Summons by Non-Resident Plaintiff. County, ss: C. D., being duly sworn, says that he has, as he verily beheves, a good cause of action, arising on contract, [or, on a judgment founded on contract,] against A. B., upon which, according to the provisions of the 31st section of the act to abolish imprisonment for debt, and to punish fraudulent debtors, no warrant can issue against the said A. B ;* and that this deponent resides in the town of , in the county of , and not within the said county of ; and this ■ deponent prays a short summons against the said A. B., on giving security, according to the statute. Sworn to, this day ) C. D. of ,18 , before me, ) C. C, Justice of the Peace. § 595. Affidavit for Short Summons against Non-Resident Defendant. County, ss: C. D., being duly sworn, &c., \as m § 594 to the *, and then 1 A long summons must be made returnable I in not less than two, nor more than four days, in not leas than six, nor more than twelve days In computing the time, the day of the date is from the date thereof; and a short summons ' tr be excluded, and the return day included. JUSTICES' COURTS. 343 add:] and that the said A. B. resides in the county of dad out of the said county of ; and this deponent praj-B a short summons against the said A. B. C. D. Sworn, &c., [as in § 594.] I 596. Description of Parties suing in a Particular Character. Of Administrators. — A. B. and C. D., administrators of all and singular the goods and chattels, rights and credits, which were of E. F. deceased. Executors. — A. B. and CD., executors of the last will and testa- ment of E. F., deceased. Surviving Executor. — A. B., surviving executor of the last will, &c. Surviving Partner, or Joint Creditor. — A. B., survivor of A. B. and CD.. Husband and Wife. — A. B., and C B. his wife. Assignee of Bail Bond — A. B., assignee of A. P., Esq., Sheriflf of the county of Assignee of Insolvent Debtor. — A. B., assignee of E. F., an insol- vent debtor. Overseers of the Poor. — A. B. and C D., Overseers of the Poor of the town of , in the county of Plaintiff in an Action, for a Penalty. — A. B., who sues as well for himself, as for the Overseers of the Poor of the town of , in the county of § 597. Affidavit for Warrant, in an Action for a Wrong. County, ss: C D., being duly sworn, says that he has, as he verily believes, a good cause of action against A. B., for breaking and entering the close of the said C D., in the town of , in said county, and taking and carrying away therefrom, die, [set forth the cause of ac- tion.'] And this deponent further says, that the said A. B., who resides in said county of , is not a freeholder therein, nor an inhabitant thereof having a family, [or, that the said A. B. is not a resident of the said county of , but a resident of the county of ; or, that he, the said C D., is a non-resident of said county, and a resident of tlie county of , and is willing to give security for the payment of any sum. which may be adjudged against him in any suit to be commenced hereupon ; or, that the said 344 iTE-w CLERK'S ASSISTANT. A. B. lately informed E. R, m the presence of this deponent, that he was about to depart from said county of , with intent not to return thereto, [or state other facts and drcwmstances showing such intention;'] or, that this deponent will, as he verily believes, be in danger of losing his said demand, unless such warrant be granted, and that the following are the facts Siud circumstances on wMch that belief is founded, viz: [state the facts ;'\ and this deponent makes ap- plication for a warrant against the said A. B., according to the statute. Sworn, &c., [as in § 694.] C. D. § 598. Affidavit for Warrant, in an Action on Contract. County, ss : C. D., being duly sworn, says that he has, as he verily believes, a good cause of action against A..B., for money collected by the said A. B. in his official character as Constable, [or, for the official mis- conduct, [or, neglect of duty,] of the said A. B. as Constable ; or, for damages arising from the misconduct or neglect of the said A. B., in his professional employment as an attorney^ And this deponent fiirther says, that the said A. B. is a non-resident of said county of, &c., [or, as in § 597.] and, therefore, he makes application for a warrant against the said A. B., according to the statute. Sworn, (fee, [as in § 694.] C. D. § 599. Recognizance on Issuing Warrant, or Short Summons. County, ss: Be it remembered, that on the day of , 18 , appli- cation having been made to the undersigned, one of the Justices of the Peace of said county, by C. D., a non-resident of said county, for a warrant, [or, short summon^,] in his favor against A. B., in an action arising on contract, [or, as the cause of action may 6e;] E. F. thereupon personally came before me, and acknowledged that he owed to the said A. B. one hundred dollars, to be paid if default should be made in the following condition, viz : that the said C. D. shall pay to the said A. B. any sum which may be adjudged againsV him the said C. D., in the suit to be commenced by the said warrant, [or, short sununons.] H. T. C, Justice, &c. § 600. Written Security on Issuing Warrant, or Short Summons. County, ss: Application havmg been made to L. P., Esq., one of the Justices of the Peace of said county, by C. D., a non-readent of the said JUSTICES' COURTS. 345 county,, for a warrant in his favor, against A. B., in an action arising on contract, [or, as the cause of action may be:'\ Now, therefore, for value received, and according to the statute in such case made and provided, I do hereby agree with, and become bound to, the said A. B., that the said C. D. sliall pay to him any sum which may be ad- judged against the said C. D. in the suit to be commenced by the said warrant, [or, short summons.] Dated the day of , 18 . E. F. Signed, taken, and acknowledged, the ) day of ,18 , before me, J C. C, Justice, &c. § 601. Warrant in a Civil Action, County,) Town of ,P^- To any Constable of the said County, greeting: ■ The people of the State of New York command you to take A. B., and bring him forthwith before me, one of the Justices of tht Peace of the said town, to answer C. D. in an action arising on con- tract, \or, as the cause of action may 6e,] to his damage one hun- dred dollars, or under; and you are further required, after you have arrested the defendant, to notify the plaintiff of such arrest, and make return hereupon to me, of the manner in which you shall have executed this precept. Witness my hand, the day of ,18 . K H. R, Justice, &c. § 602. Application, for an Attachment, To J. B., Esq., Justice of the Peace of the Town of , in the County of : The subscriber applies to you for an attachment against the pro- perty of A. B., on the grounds set forth in the affidavit hereunto annexed. Dated the day of , 18 . CD. § 603. Affidavit for an Attachment under the Revised Statutes, County, jSs: C. D., being duly sworn, says, that A. B. is justly indebted to this deponent [or, to E. F.] m the sum of dollars, over and above all discounts which the said. A. B. has against him, as near aa 346 ifEW CUSRK'S ASSISTANT. he can ascertain the same ; which debt arose upon contract, [or, as the case may 5e/]* and that the said A. B. has departed from the said county of , where he last resided, with intent to defraud his creditors, or with intent to avoid the service of any civU process ; \or, tliat the said A. B. is about to depart from the said county of , (fee, as above; or, that the said A. B. keeps himself concealed with- in the said county of , where he last resided, with intent, &c., \as above :'\ and this deponent further says, &c., \here state distinctly the facts and circumstances necessary to satisfy the Justice that there are sufficient grounds for the attachment.^ Sworn, (fee, [as in § 594.] C. D. § 604. Affidavit for Attachment, wider the Nbn- Imprisonment Act. County, ss: C. D., being duly sworn, says, &c., [as in § 603 to the *, and then add:'\ and that the said A. B. is about to remove his property from the said county of , with intent to defraud his creditor^, [or, that the said A. B., has assigned, disposed of, or secreted, his property, with intent to defraud his creditors ; or, that the said A. B. is about to assign, dispose of, or secrete, his property, with intent to defraud his creditors ;] and this deponent further says, that, (fee. : [set forth the facts and circumstances, as directed in 8 603.1 Sworn, &c., [as in § 594.] C. D. § 605. Affidavit for an Attachment against a Non-Besiclent. Coimty, ss: C. D., being duly sworn, says, &c., [as in § 603 to the *, and then addf\ and that the said A. B. is a resident of the town of , in the county of , and out of the said county of ; and that no warrant can issue against him, on the demand of the said C. D., according to the act to abolish impnsomnent for debt, and to pimish fraudulent debtors ■ Sworn, (fee, [as in § 594.] C. D. §606. Bond on Attachment.^ !^now all men by these presents : That we, C. D., and E. R, are held and firmly bound unto A. B., in the sum of two hundred dol- I No bond ih necessary on an attachment against a non-resident. (23 Wendell, 336.) But a non-resident plaintiff must give security, as in otiier cases. ' JUSTICES' COURTS. 347 lars, [if under the non-imprisonment act, say, one hundred dollars,] to be paid to the said" A. B., his heirs, executors, administrators, or assigns ; for which paymenl^ well and truly to be made, we bind our- selves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of ,A. D. 18 .* Whereas the above bounden C. D. has made application to C. C, Esq., a Justice of the Peace of the town of , in the county of , for an attachment in his favor, \or, in favor of L. M.,] against the property of the said A. B., in pursuance of the provisions of the Revised Statutes, \or, of the act to abolish imprisonment for debt, and to punish fraudulent debtors:] Now, therefore, the condi- tion of this obligation is such, that if the said C. D. \or, L. M.] shall pay the said A. B. all damages and costs which he may sustain by reason of the issuing of said attachment, if the said C. D. \or L, M.] shall fail to recover judgment thereon ; and if such judgment be re- covered, and the said C. D. [or, L. M.] shall pay the said A. B. aU moneys which shall be received by him from any property levied upon by virtue of such attachment, over and above the amount of such judgment, and interest and costs thereon, then this obligation to be void; else of force. Sealed and delivered ) C. D. [l. s.] in the presence of J E. F. [l. s.] G. H. § 607. AttachmenL County, ) Town of ,r To any Constable of the said County, greeting: Whereas, C. D. has applied for an attachment against the property of A. B., against whom he has a claim for a debt of dollars, and produced satisfactory proof that the said A. B. is about to depart from the said county of , where he last resided, [or, ai the case may S«,] with mtentto defraud his creditors: Therefore, the People of the State of New York command you, to attach so much of the goods and chattels of the said A. B., as will be suflacient to satisfy the said claim, and safely to keep the same, to satisfy any judgment that may be recovered on this attachment; and that you make return of your prooeedbgs thereon to me, on the day^ of , at o'clock in the noon, at my office ji the said town. Dated the day of ,18 . G. H., Justice, &C. 348 NEW CLERK'S ASSISTANT § 608. Bond on Adjournment, in Action arising on Contract, Know all men by these presents, that we, A. B. and E. F., Before 6. H., Esq., one of the Justices of the Peace A. B. ) of the county of : County, ss: E. F., being duly sworn, says that he is a housekeeper, [or, free- holder,] now actually residing in the town of , in said county ; and that he is worth two hundred dollars over and above what Vml pay all his debts. E. F. Sworn, (fee, [as in § 594.] JUSTICES' COUETS. 349 § 611. Complaint in an Action arising on Contract. In Justice's Court, ^ P\ I Before C. C, Esq. agatmt J Complaint ^ A. B., plaintiff, complains that C. D., defendant, owes and is indebted to him in the sum of one hundred dollars, for goods, wares and merchandise, sold and delivered to [or, for work and labor per- formed for] the defendant, on the day of , 18 , [or, at various times between the day of , 18 , and the day of , 18 ,] whereupon the plaintiff demands judgment against the defendant for the one hundred dollars, [add here, with interest from the day of , 18 , if necessarif.^ A. B., Plaintiff § 612. Complaint for Injuring Personal Property. In Justice's Court, ^•?-, ) Before C. C, Esq., against > ^t i • i ^ jy I Complami A. B., plaintiff, complains that C. D., defendant, carelessly and violently ran against the carriage of the plaintiff, with the team and wagon of the defendant, on the day of , 18 , and broke and damaged the said carriage to the amount of twenty-five dollars ; whereupon, the plaintiff demands judgment against the de- fendant for the twenty-five dollars. A. B., Plaintiff § 613. Complaint for Breach of Warranty. In Justice's Court, ■^- ?• ) Before C. C, Esq. TT J Complaint. A. B., plaintiff, complains that C. D., defendant, sold a horse to the plaintiff, on the day of , 18 , for the sum of dollars, and warranted the same to be perfectly soimd, kind, and true, but the said horse is blind of the right eye, is vicious and imruly, and not true in the harness, whereby he is injured to the amoimt of fifty dollars ; whereupon the plaintiff demands judgment against the defendant for the fiffy dollars. A. B., Plaintiff 350 NEW CLERK'S ASSISTANT. § 614. Complaxni for Fraud or Deceit, In Justice's Court, ^?-, ) Before C. C, Esq. against >■ „ i ■ ^ ^ g J, I Complaint A. B., plaintiff, complains that C. D.,- defendant, sold a horse to the plaintiff, on the day of , 18 , for the sum of dollars, which said horse, to the knowledge of the defend- ant, was diseased of the heaves at the time of the sale, but the defendant did not inform the plaintiff thereof; whereby the said horse is injured to the amount of fifty dollars, and the plaintiff' demands judgment against the defendant for the same. A. B., Plaintiff § 615. Complaint for Conversion of Personal Property. In Justice's Court, p T\ \ Complaint. A. p., plaintiff, complains that on or about the day of , 18 , he was possessed, as of his own property, of a certain gold watch, of the value of one hundred doUars, which afterwards, and on or about the day of , 18 , came into the hands and possession of C. D., the defendant, who sold the same and converted the proceeds to his own use ; whereupon the plaintiff demands judg- ment against the defendant for the one hundred dollars.---^ A. B., Plaintiff § 616. Complaint for Injury to Real Property. In Justice's Court, ^■?\ ? Before C. C, Esq. Td! J Complaint A. B., plaintiff, complains that on or about the day of , 18 , C. D., the defendant, [or, the horses and cattle of C. D., the defendant,] broke and entered the close of the plaintiff, at , in the county of , and trod down and destroyed the grass and products of the soil there growing; whereby the plaintiff has sustained damage to the amount of fifty dollars, and he demands judgment against the defendant for the same. A. B., Plaintiff JUSTICES' COURTS. 351 § 617. Complaint by an Assignee. In Justice's Court, ■^?-, ? Before C. C, Esq. g yj ( Complaint A. B., plaintiff, complains that C.' D., defendant, was indebted to G. H., on the day of , 18 , in the sum of one hun- dred dollars, for medical services rendered to the said defendant pre- vious to that day, which said indebtedness has been duly assigned to the plaintiff; whereupon the plaintiff demands judgment against the defendant for the one hundred dollars. A. B., Plaintiff. § 618. Answer of Defendant In Justice's Court, ^•.^- I Before C. C, Esq. against K„™er C. D., the defendant, answers to the complaint, that on the day of 18 , he paid the indebtedness mentioned in the com- plaint, [or, that the plaintiff did not perform the work and labor for the defendant, mentioned in the complaint; or, that he did not war- rant the horse mentioned in the complaint to be perfectly sound, Hnd, and true.] C. D., Defendant § 619. Answer, with Notice. In Justice's Court ^ .^- ) Before C. C, Esq. C. D., the defendant answers to the complaint that he did not take, and does not detain the property, [or, did not break and enter the close,] mentioned in the complaint, as is therein stated ; and he OTves notice that he will prove on the trial of this action that the property mentioned in the complaint was taken, and is detained by him, with ihe consent and permission of the plaintiff, [or, that he broke and entered the close mentioned in the complaint in order to remove a quantity of wheat levied on by him as a constable of the county of , by virtue of an execution against the plaintiff, is- sued by C. C, Esquire, Justice of the Peace of said county, in favor of G. H., and dated on the day of , 18 .] C. D., Defendant 352 ifEW CLERK'S ASSISTANT. § 620. Oath on Application for an Adjournment.^ You do swear, that you will true answers make to sucli questions as shall be put to you, touching the necessity of an adjoununent in this cause. § 621. Oath of Surety on Adjournment. You do swear that you will true answers make to such questions as shall be put to you, touching your competency as surety for A B., on his application to adjourn this cause. § 622. Examination of Witness, on the Application 6f the Defend- ant for an Adjournment, in a Cause commenced by War- rant at the Suit of a Nbn-Besident Plaintiff. In Justice's Court, CD) ■ . ■ { Before G. H., Esq., one of the Justices of the f T. t Peace of the County of County, ss: L. M., a witness attending, produced and sworn, by and on behalf of the plaintiff in this cause, being duly sworn, on his direct exami- nation by the plaintiff, says : \set forth the testimony.'] Sworn, (fee, \as in § 594.] L. M. Town of , ) T'S. 623. Suhpcena. County, The People of the 'State of New Yoric, to E. F., L. M., &o., &c, Greeting : "We command you, and each of you, that all business and excu- ses being laid aside, you and each of you be and appear, in your proper persons, before the undersigned, one of the Justices of the Peace of the said town, at his office in , in the said county, on the day of , at o'clock in the noon, then and there* to testify those things which you or either Before G. H., Esq., one of the Justices of the Peace of A. B. ) the County of : Sir : Take notice that an application for a commission to be directed to S. T., of the of , to examine K P., of the same place, a witness in the above entitled cause, upon interrogatories to be. annexed to such commission, will be made to G. H., Esq., at his office in the town of , on the day of , 18 , at o'clock in the noon. Dated , the day of . , 18 . C. D.,Plaintiff. To A- B., Defendant JUSTICES' COURTS. 355 § 630. Oath of Service of Notice. You do swear, that you will true answers make to such questions as shall be put to you, touching the service of notice of an application for a commission in this cause. § 631. Oaih on applying for Commission. fou do swear, that you will true answers make to snch questions as shall be put to you, touching the necessity of issuing a commission in this cause. § 632. Commission.^ County, ss: To S. T., of the of : Whereas it appears to me, the undersigned, a justice of the Peace of the town of , in said county, that K P., of the of , aforesaid, is a material witness in a certain action now depending before me, between C. D., plaintiflf, and A. B., defendant: Now, therefore, confiding in your prudence and fidelity, and in pursuance of the statute, I have ap ■ pointed, and by these presents do appoint you. Commissioner to ex- amine the said witness ; and for that purpose, do authorize you, at certain days and places, to be by you appointed, dOigentiy to exa- mine the said witness, on the interrogatories hereto annexed, on oath to be taken before you ; and to cause such examination to be reduced to writing, and signed by such witness and yourself, and return the same, annexed hereto, to me, enclosed under your seal. Given under my hand, at the town aforesaid, the day of , 18 . G. H., Justice of the Peace. § 633. Commissioner's Summons to Witness. County, ss: Whereas, the imdersigned has received a commission, issued by G. H., Esq., a Justice of the Peace of the county of , directed for the examination of R P., a witness in a cause depending before the said Justice, between C. D., Plaintiff, and A. B., defendant : You, the. I Where a commission is issued to a person not familiar with our laws, it woula be well to annex to the commission a copy of S 16, of An. 2 of title 3, of Chap. 7, of part 3 of the Re- vised Statutes, in the same manner as in the case of commissions issued out of courts of record. 356 NEW CLERK'S ASSISTANT. eaid R P., are therefore required to be and appear before me, the said Commissioner, at my dwelling house, in the town of , on, &c., then and there to be examined, and to testify the truth, ac- pording to the best of your knowledge, for and on behalf of the said plaintiff, [or, defendant,] and herein you EU-e not to fail Dated the day of , 18 . a T. § 634. Oath to Witness Examined on a Commission. You do swear, that the answers to be given by you to the interro- gatories proposed to you by the Commissioner here present, to exe- cute a commission directed to liim, issued by G. H., Esq., a Justice of the Peace of the county of , in a certain action there depending before him, between C. D., plaintifl^ and A. B., defendant, shall be the truth, the whole truth, and nothing but the trutL § 635. Deposition of Witness before Commissioner. Deposition of R P., a witness produced, sworn and examined, on . oath, on the day of , 18 , at &c., by virtue of a com- mission issued to 8. T., by G. H., Esq., a Justice of the Peace of the county of , in a certain cause depending before the said Jus- tice, between C. D., plaintiff, and A. B., defendant The said R P. deposes as follows : To the first interrogatory, he saith, [give aniwer of witness^ To the second interrogatory, he saith, &c. R P. Subscribed and sworn before me, ) this day of , 18 . j S. T., Commissioner. § 636. Endorsement of an Exhibit produced before the Commis- sioner. On the day of , 18 , at the execiition of a commis- sion issued by G. H., Esq., a Justice of the Peace of the county of , for the examination of R P., a witness in a certain action depending before the said Justice, between C. D., plaintiff, and A. B., defendant, the within paper writing marked "A," was produced and shown to the said R P., a witness sworn and examined, and by him deposed unto at the time of his examination as a witness under such commission. S. T., Commissioner. JUSTICES' CODETS. 357 § 637. Venire. Town of ,) g. County, j To any Constable of the said County, greeting: The People of the State of New York command you to summon twelve good and lawful men, in the town of , qualified to serve as jurors, and not exempt from serving on juries, in courts of record, and who are in no wise of kin to either party, or interested in the suit hereinafter mentioned, to appear before me, one of the Justices of the Peace of said town, at my oflSce in said town, on the day of , 18 , at o'clock in the noon, to make a jury for the trial of an action arising on contract, [or, as thb cause of action may Se,] between C. D., plaintiff, and A. B., defen- dant : And you are also required to make a list of the persons sum- moned, which you will certify and annex to this venire, and make return thereof to me. Witness, (fee, \as in § 623.] § 638. Oath on Objection to Constable's Serving the Venire. You do swear, that you wiU true answers make to such questions as shall be put to you, touching the reasons why H. C. should not execute the venire in this cause. § 639. Juror's Oath.^ You do swear, well and truly to try the matter in difference be- tween C. D., plaintiff, and A. B., defendant, and, unless discharged by the Justice, a true verdict give, according to the evidence. § 640. Oath of Witness. You do swear, that the evidence you shall give, relating to this matter in difference between C. D., plaintiff, and A. B., defendant, shall be the truth, the whole truth, and nothing but the trutL 1 &T other forms of oaths, see those previously giren, in Cliapter XI. 358 NEW CLERK'S ASSISTANT. § 641. Constable's Oath on -Retiring with Jwry. You do swear, in the presence of Almighty God, that you will, to the utmost of your ability, keep the persons sworn as jurors on this trial, together, in some private and convenient place, without any meat or drink, except such as shall be ordered by me; that you will not suffer any communication, orally or otherwise, to be made to them ; that you will not communicate with them yourself, orally or otherwise, unless by my order, or to ask them whether they have agreed on their verdict, until they shall be discharged : and that you will not, before they render their verdict, communicate to any per- son the state of their deliberations, or the verdict they have agreed on. § 642. Confession of Jvdgmertt. In Justice's Court, CD. ) against > Confession for $ A. B. ) In the presence of G. H., Justice of the Peace, I do hereby confess judgment, on a demand •arising on contract, \or as the nature of the demand may fie] to the plaintifif in the above entitled action, for dollars, and consent that the said Justice enter the same against me accordingly. Dated the day of , 18 . A. B. § 643. Affidavit where the Confession is for a Sum exceeding Fifty Dollars. County, ss: We, C. D. and A. B., the parties named in the foregoing \or, an- nexed] confession of judgment, being duly sworn, severally say, that the said A. B. is justly indebted to the said C. D., in the sum of dollars, over and above all just demands which the said A. B. has against the said C. D. ; and that the above \or, annexed]con- fession is not made, or taken, with a view to defraud any creditor. Subscribed and sworn, before me, ) C. D. this day of , 18 . | A B. G. H., Justice, && JUSTICES' COURTS. 359 § 644. Transcript of Judgments In Justice's Court, CD. A. B. Judgment rendered for the plaintiff, against the defendant, May 6, 1846, for $28 02 Costs, 1 90 $29 92 Fee for transcript, to be added, 25 County, ss: I certify that the above is a true copy of a judgment rendered by and before me, and now remaining unsatisfied upon my docket; that the said judgment was rendered in the absence of the defendant, upon contract; [or, as the case may Se;] and that E. F. and O. P were the witnesses sworn on the part of the plaintiff therein. Dated the day of ,18 G. H., Justice, &c. § 645. Uxemiion. Town of ,|gg. County, \ To any Constable of said town, greeting : Whereas, jndg-ment has been rendered before me, one of the Jus- tice of the Peace of the said county, against A. B., defendant, in £a,vor of C. D., plaintiff, for dollars and cents : Therefore, the People of the State of New York command you, to levy the amomit of the said judgment, with interest from the day of , 18 , on which day judgment was rendered, until received, of the goods and chattels of the said defendant, (except such goods and chattels as are by law exempted from execution,) and bring the money before me sixty days from the date hereof, to render to the said plaintiff: and have you then there this precept [If the defen- dant may be arrested on the execution, add here: And if no goods or chattels can be found, or not sufficient to satisfy tliis execution, you are further commanded to take the body of the said A. B., and con- vey him to the common jail of the said county, there to remain untii this execution shall be satisfied and paid.] Witness my hand, the day of , 18 . G. H., Justice of the Peace. Damages, Costs, Judgment, Poutiiiage, Amount, 360 IfETV CLERK'S ASSISTANT. § 646. Renewal of Exeetdion. The within execution is hereby renewed, [If necessary, add: for the sum of ' dollars, with interest from this date.] Dated the day of ,18 G. H., Justice. § 647. Complaint to obtain Svrety of the Peace. County, ss: A. B., of said county, being duly sworn, says, that on the day of , 18 , one C. D., of the town of , in said county, did threaten to beat and wound \or, kill, or as the case may he,'] him, the said A. B. ; and that hs hath just cause to fear that the said C. D. will beat and wound \or. Mil, as the case may lei him, the said A. B. ;* wherefore this deponent prays that the said oflfender may be bound by recognizance, to answer fie said offence at the next Court of Sessions to be held in the said county, and in the mean- while to keep the peace. A. B. Sworn, &c., [as in § 594.] § 648. Peace Warrant Town of ,) g. Coimty, y To any Constable of the said County, greeting: Whereas, A. B. hath this day made complaint, upon oath, before me, G. H., one of the Justices of the Peace of the said town, that on the day of ,- 18 , one C. D., of, &c., [as in § 647 to the *, and then add:"] and the s^d A. B. ha,th thereupon prayed surety of the Peace: Therefore, the people of the State of New York command you forthwith to apprehend the said C. D., and bring him before me, at my office in said town of , to be dealt with according to law. Witness my hand, this day of ,18 . G. H., Justice of the Peace. § 649. Commitment on Foregoing Complaint} County, ss: To any Constable of the said County, greeting: Whereas, A. B. this day made complaint to me in writing, on oath, that C. D., on the day of instant, [or, last pasl^] ■ For form of lecoenizance, sea $ 7081 JUSTICES' COURTS. 301 threatened to, &c., [as in the complaint i] And whereas, it appearing to me, upon the examination of the said complainant, and E. F., and O. P., witnesses, duly made on oath, reduced to •writing, and sub- scribed by them, that there was just reason to fear the commission of the said offence by the said 0. D. ; and he being brought before me on my warrant, was required to enter into recognizance in the sum of dollars, with sufficient surety, to appear at the next Court of Sessions to be held in the said county, and not to depart the same without leave, and in the meantime to keep the Peace towards the people of this State, and particularly towards the said complainant. And the said C. D. having refused [or, neglected,] to find such secu- rity, you are therefore commanded, in the name of the People of the State of New York, forthwith to convey him to the common jail of the said county, and to deliver him to the keeper thereof, who is hereby required to receive the said C. D. into his custody, and tiim safely keep in the said jail, until he shall find such security, or be discharged by due course of law. Witness, ifec, [as in § 648.] § 630. Warrant to discharge Prisoner on Finding Security. County, ss: G. H. and S. T., Esqrs., two of the Justices of the Peace of the said County, to the Keeper of the Common Jail of the said County, greeting : These are to command you forthwith to discharge out of your cus- tody C. D., if detained by you in said common jail, for no other cause than what is specified in his warrant of commitment, made by the said G. H.. dated the day of , 18 , for not finding sureties of the Peace ; he having, since his said commitment, found such sureties before us. Given under our our hands and seals, this day of ,18 G. H., Justice, [l. s.] S. T., Justice, [l. s. j § 651. Complaint for Assault and Battery. County, ss: A. B., of said county, being duly sworn, says, that on the day of ,18 , one C. D. did violently assault and beat him, the said A. B., at the town of , in said county ; where- fore this deponent prays that the said offender may be dealt with ac- cording to law. A. B, Sworn, &c., [as in § 5^4.] 362 NEW CLERK'S ASSISTANT. § 652. Assault and Battery Warrant. Town of ,) ^. Comity, j ■ To anj Constable of the said County, greeting: Whereas A. B. hath this day made complaint, upon oath, before me, G. H., one of the Justices of the Peace of the said town, that on the day of , 18 , at the town of , in said county, one C. D. did violently assault and beat him, the said A. B. : Therefore, the People of the State of New York command you forth- with to apprehend the said 0. D., and bring him before me, at my office in the said town of , [or, if the offence he committed in another town, say: take him before S. T., Esq., or any other magi- strate resident and being in the town of ', aforesaid,] to be dealt with according to law. Witness, &c., [as in § 648.] § 653. General Form of Warrant. County, ss: To any Constable of the said county, greeting: Whereas, A. B. has made complaint, upon oath, before me, G. H., one of the Justices of the Peace of the said county, on this day of , 18 , that, &c., \_state the offence, as in the complaint:^ Therefore, the People of the State of New York command you forth- with to apprehend the said C. D., and bring him before me, at my ■ office, in the town of , in said county, [or, change the form as in ^ 652, if the offence was committed in another town, and is triable before a Court of Special Sessions,'] to be dealt with accord- ing to law. Witness, &c., [as in § 648.] § 654. Complaint for Grand or Petit Larceny. County, ss: A. B., of said county, being duly sworn, says, that certain personal property of the said A. B., (or, as the case may be,"] to wit: [de- scribe property,] of the value of dollars, or upwards, was stolen and feloniously taken from his dwelling house in the town of , in said county, on the day of ,18 ; and that this deponent suspects that C. D. has stolen and taken the same, as aforesaid;* wherefore he pays process to apprehend the said offender. A B. Sworn, (fee, [as in § 594.] JUSTICES' COURTS. 863 § 655. W'lrrant for Larceny. County, ss: To any Constable of the said County, greeting: Whereas, A. D. has made complaint, upon oath, before me, G. H., one of the Justices of the Peace of the said county, that on the day of , 18 , certain personal 'property of the said A. B., to wit: [describe property as in the complaint,^ of the value of dollars, or upwards, was stolen and feloniously taken from his dwelling house in the town of , in said county; and that he suspects that C. D. did steal and take the same as aforesaid :* rherefore, &c., [as in § 652, to the end.J § 656. Complaint/or Murder.' County, ss: A. B., of said county, being duly sworn, says,* that on the *ay of instant, [or, last past>] at the town of , in said county, one M. P. was feloniously, wilfully, and of malice afore- thought, killed and murdered: and that this deponent has just cause to suspect, and does suspect, that the said murder was committed by R B., [or, by a man [describe his person,'] but whose name is un- known w the deponent] Sworn, &c., [as in § 594.] § 657. Complaint for Murder by Poisoning. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one M. P. died ; and that this deponent has just cause to suspect, and does suspect, that on the day of , afore- said, one R D. did feloniously, wilfully, and of malice aforethought, administer to the said M. P. a certain deadly poison, called ar^nic, by reason whereof the said M. P. languished a short time and then died. Sworn, (fee, [as in § 594.] I The forma of warrants to accompany the complaints for murder, and the subsequent forms to § 705: are not giren, for the reason that no difficulty can be experienced in pre* paring them from §^ 618, 693, 653, and 655. It is only necef?sary to insert in the general form (5 653)(he precise langauge of the com- plaint, commencing ai the word " that," after the * m each form, and concluding with the command to arrest, as in § 648. Where the word " deponent " occurs, the name of the Individual should be inserted in full. 364 HEW CLERK'S ASSISTANT. § 658. Qamplaint for Murder hy Stabbing. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past»] at the town of , in said county, one K D. did, in the presence of this deponent and other witnesses, feloniously, wilfully, and of malice aforethought, stab one M. P., with a butcher's knife, and give him several mortal wounds, of which the said M. P., died immediately, [or, languished a short time and then died.] Sworn, &c., [as in § 594.] § 669. Complaint for Murder by Shooting. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , , in said county, one K D. did feloniously, wilfully, and of malice afore- thought, fire and discharge a gun, [or, pistol,] loaded with powder and ball, at one M. P., and give him one [,or, several] mortal wound, [or, woimds,] of which the said M. P., &o., [as in § 658, to the end.j § 660. Gomplokdfor Murder hy Gutting Throat. County, ss: A. B., of said county, being duly sworn, says,^ that on the day of instant, [or, last past,] at die town of , in said county, one R D., feloniously, wUfuUy, and of malice afore- thought, with a bowie knife, made an assault upon, and did strike and cut the throat of M. P. therewith, and did give him one mortal wound thereon, of which the said M. P., &o., [as in § 658, to the end.'\ § 661. Complaint against Accessory After the Fact. County, ss: A. B., of said county, &c., [as in either of the preceding com- plaints for murder, to the end, and then add:"] And that afterwards, to wit, on the day of instantj \or, last past,] at the town of , in said county, one K S., well knowing the said R D. to have done and committed the said felony and murder, did feloniously and wilfully conceal [or, aid, comfort and assist]>the said JUSTICES' COURTS. SG5 R. D., ■with the intent and in order that the said R J), might avoid, or escape from, arrest, [or, trial; or, conviction and punishment,] for the said felony and murder. Sworn, &c., [as in § 594.] § 662. Complaint for Arson, in the First Degree. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] in the night time, at the town of , in said county, one R. D. did unlawfully, wilfully, ma- liciously and feloniously, set fire to and burn the dwelUng hoTise of one M. P., situate in said town ; there being at the same time some human being, to wit, [mention who,J in the said dwelling house. Sworn, &c., [as in § 594.] § 663. Complamtfor Arson, in the Second Degree. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, &c., [as in § 662, to the end, substituting "in the day time "/or "in the night time; " or, say, at the town of , in said county, in the night time, one R D. did unlawfully, wilfully, maiiciously and feloniously, set fire to and burn the warehouse of one M. P., situate in said town ; which said warehouse was adjoining to, [or, within the curtilage of,] the inhabited dwelling house of the said M. P., whereby the said dwelling house was endangered.] Sworn, &c., [as in § 594.] § 664. Complaint for Arson, in the Third Degree. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, at the town of , in said county, in the day time, one R D. did Tyilfully, maliciously and feloniously, set fire to and burn the warehouse, &c., [as in § 663, to the end; ' or, in the night time, one R. D. did unlawfully, wilfully, maliciously and feloniously, set fire to and bum a certain school house, situate in school district number , in said town.] Sworn, 70 ifEW CLERK'S ASSISTANT. upon the said A. B., and him, the said A. B., did then and there, with the said deadly t?-eapon, beat and ill-treat, with intent to kiU him, the said A. B. ; [or, did, with and by means of his hands, feet and fists, and by such force as was likely to produce death, feloniously assault and beat the said A. B., with intent, &c., as above.'] Sworn, &c., [as in § 594.J § 679. ■ Complaint for Poisoning Food. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past] at the town of , in said county, one R D., with intent to injure and Mil one M. B., and divers other persons, did maliciously and feloniously mingle a certain poison called arsenic, with certain food, [or, drink ; or, medicine,] in order that the same might be taken by the said M. B., and other persons. Sworn, &c., [as tn § 594,] § 680. Complaint for Poisoning Well. County, ss: , A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D., with intent to injure and kill one M. B., and one or more of the members of his family, and divers other persons, did maliciously and feloniously mingle a certain poison, called arsenic, ivith the waters of the well belonging to the said M. B., and situate near his dwelling house, to which the said M. B., and the members of his family, and divers other persons of the said town, were used to resort for the purpose of obtaining water for drinking and culinary . purposes, in order that the said poison, so mingled with the waters ■aforesaid, might be taken by the said M. B., and one or more of the members of liis family, and divers other persons. Sworn, &c., [as in § 594.] § 681. Complaint for Assault, with Intent to Bob, or Commit Burglary. County, ss: A. B., of said county, being duly sworn, says,* that on the day of • instant, [or, last past,] at the town of , in said JtJSTICES' COURTS. 371 county, one R. D. did feloniously make an assault upon the said A. B., with intent to commit robbeiy upon the said A. 6., by feloniously taking the money of the said A. B. from his person, by violence thereto, and against his mil; [or, ■with intent to commit burglary in the dwelling house of the said A. B., situate in the town of .] Sworn, ifec, [as in § 594.] ' § 682'. Complaint for Burglary. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R D. did feloniously and burglariously break and enter the dwelling house of the said A. B., situate in the said town, by pick- ing the lock of the outer door thereof; [or, by breaking the fasten- ing of one of the window shutters thereof; or, by unlocking the outer door thereof, by means of false keys,] ivith intent to steal, take and carry away, from said dwelling house, divers goods and chattels therein, belonging to the said A. B. ; the wife and family of the said A. B. being at the time in said dwelling house ; [or, with intent to rob the said A. B. of his goods and chattels, in his presence and against his wUl, by force and violence to his person, he, the said R D., being at the time armed with a dangerous weapon, to wit, with a pistol ; and the s^d A. B., and his family, being in the said dwell- ing house.] Sworn, &c., [as in § 594.] § 683. Complaint for Felony and Burglary in Shop. County, ss : A. B. of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R D. did feloniously and burglariously break and enter the shop of the said A. B. by [describe the manner,~\ being within the curtilage of the dwelling house of the said A. B., there situate, but not forming part thereof, &c., [as in § 682 to the end, omitting the allegation in regard to the family being present.'^ Sworn, (tc, [as in § 594.] § 684. Complaint for Burglary in entering Store. County, ss : A. B., of said coimty, being duly sworn, says,* thai on the day of instant, [or, last past,] at the town of , in 372 NEW CLERK'S ASSISTANT. said County, one R. D. did feloniously and burglariously break and enter the store \>i the said A. B., there situate, by [describe the man- ner,^ in which goods and merchandise were then kept for sale, with intent feloniously to steal, take and carry away, the goods and chattels of the said A. B. therein, to wit, the goods and merchandise afore- said, or some part or portion thereof Sworn, &c., [as in § 594.] § 685. Complaint for Constructive Bwrglary. County, ss: A. B., of said county, being duly sworn, says,* that on the ilay of instant, [or, last past,] at the town of , in «aid county, one R. D. did feloniously and burglariously break and enter the dwelling house of the said A. B., situate in said town, by knocking at the outer door thereof, and demanding to speak with ■ the said A. B., and, upon the said A. B. opening the door for that purpose, rushing and entering into the said dwelling house, with in- tent to rob the said A. B. of his goods and chattels, in his presence and against his will, by force and violence to his person ; the said A. B. and his family being at the time in said dwelling house. Sworn, (fee, [as in § 594.] § 686. Complaint for Forgery. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did falsely and feloniously forge and counter- feit [or, alter,] a certain paper writing, being, or purporting to be, a will [or, deed,] by which a right or interest in real or personal pro- perty was, or purported to be, transferred, with intent to defraud the said A. B., [or, a certain paper writing, purporting to be a certificate of the acknowledgment of the execution of a certain deed or convey- ance from the said Al B. to S. T., of certain lands situate in said county, before one G. H., a Justice of the Peace ; which said deed or conveyance was of a nature, or proper, to be recorded according to law, with intent to defraud the said A. B. ; or, did falsely and felo- niously make, forge and counterfeit, a certain pQjmissory note, pur- porting to be the promissory note of the said A. B., for the payment of dollars to C. I)., thirty days after date, with intent to de- fraud the said A. B.] Sworn, &c., [as in § 694.] JUSTICES' COURTS. 87 :j § 687. Complaint for Passing, or Offering to Pass, OowUerfeii Bank Notes. County, ss: A. B., of said County, being duly sworn, says,* that on the day of instant, \or, last past,] at the town of , in said county, one K D. did feloniously sell and exchange, \or, offer to sell and exchange,] to and witH the said A. B., for a valuable con- sideration, to wit, the sum of ten dollars in silver coin, \or, goods and merchandise of the value of ten dollars,] two forged and coun- terfeit negotiable notes, commonly called bank notes, purporting to be the promissory notes of, and to have been issued by, the Bank, for the payment of the sum of five dollars each ; he, the said R. D., well knowing the said bank notes to be forged and counter- feited, and with the intent to deceive and defraud the said A B. Sworn, &c., [a* in § 594.] § 688. Complaird for Altering or Counterfeiting Bank Notes. Coimiy, ss: A. B., of said county, being duly sworn says,* that on the day of instant, \or, last past,] at the town of , in said county, one R D. did feloniously counterfeit, [or, counterfeit and alter,] a certain bank or promissory note, purporting to be the promissory note of, and to be issued by the Bank, for the payment of the sum of ten dollars, \_if the charge is for altering a note, insert here: in such a manner as to make the same resemble and purport to be a bank or promissory note for the payment of the sum of one hundred dollars,] with intent to defraud the said bank, or some person or persons, or body politic or corporate, to this deponent unknown. Sworn, &c., \as in § 584.] § 689. Complaint for Obtaining Property by a False Token, or by Falsely Personating Another. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one 'R. D. did designedly, falsely, and feloniously, by color of a certain false token or writing, [or, counterfeit letter,] ob- tain from the said A. B., certain goods and chattels, of the value of doUars, to wit: [describe the property ;^ [or, did falsely 374 KEW CLERK'S ASSISTANT. and feloniously personate and represent himself to be one C. D., and did then and there, and in such assumed name and character, obtain a certain horse of the value of dollars, intended to be deliv- ered to the said C. D.] Sworn, (fee, [as in § 594] § 690. Complaint for Obtaining Money, or Property, by False Pretences. County, ss: A. B., of said county, being duly sworn, says,* that oa the day of ~ instant, [or, last past,] at the "town of , in said county, one R. D. did designedly and feloniously, and by the false pretence that he, the said R. D'., was sent and authorized by one C. D., \or, that he owned a farm, containing one hundred acres, or thereabouts, situate in the town of , in said county, free of all incumbrances; or, that he was worth dollars, after the payment of all his debts and liabilities; or, that he owned and was possessed of personal property to the vaiue of dollars, and was not a householder, or man of family, whereby the same would be exempt from execution against him ; or, that he was entirely free and clear from all debts and liabilities, of every name and descrip- tion,] demand and receive \or, obtain on ci'edit,] from the said A. B., a large sum of money, to wit, the sum of dollars, [or, goods and merchandise of the value of dollars,] with the intent to cheat and defraud the said A. B. Sworn, (fee, [as in § 594.] §. 691. Complaint for Robbery. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, \or, last past,] at the town of , in said county, one R. D. did violently and feloniously make an assault upon him, the said A. B. ; and, by putting him, the said A. B., in bodily fear and danger of his life, chd then and there steal, take and carry away, &c., [describe property tahen\ Sworn, (kc, [as in § 594.] § 692. Complaint for Embezzlement. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, \or^, last past,] at the town of , in said JUSTICES' COURTS. 375 county, one R. D., being a servant [or, clerk] of the said A B., and wot being an apprentice, nor within the age of eighteen years, did feloniously embezzle, and convert to his own use, without the consent of the said A. B., [describe property,'\ belonging to the said A. B. Sworn, (fee, \as in § 594.] § 693. Complaint for Receiving Stolen Goods. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did feloniously receive or buy, of one 0. P., certain goods and chattels, ; to wit : [describe the property^ he the said R. U., well knowing the* said goods and chattels to have been feloniously stolen and taken from him, the said A. B. Sworn, &c., [as in § 594.] I 694. Complaint for Perjv/ry. County, ss: A. B., of said county, being duly sworn, says,* that in a certain action at law, tried on the day of instant, [or, last past,] at the town of , in said county, before H. R. F., Esq., one of the Justices of the Peace of the said county, in which the said A. B. was plaintiff and one C. D. defendant, the said Justice having jurisdiction over the said action, and full power and authority to try the same, and to administer oaths to all witnesses sworn upon such trial, one R. D. was produced as a witness on the part of C. D., the defendant aforesaid, and was duly sworn to speak the truth, &c., [follow the language of the oath administered:^ and that the said R D., being interrogated as such witness, whether the said A. B. was at the dwelling house of the said C. D., on the day of ,18 , which inquiry was material and pertinent to the issue joined in the action aforesaid, did then and there, to wit, at the time and place aforesaid, falsely, wilfully and corruptly, depose and swear, that the said A. B. was at the dwelling house of the said C. D., on the said day of , 18 , whereas, in truth and in fact, the said A. B. was not at the dwelling house of the said C. D., on the said day of , 18 ; whereby the said R. D. did then and there, to wit, at the time and place aforesaid, wil- fully and corruptly swear falsely, and commit wilful and corrupt perjury. Sworn, &c., [as in § 594.] . 376 KEW CLERK'S ASSISTANT. § 695. Complaint for Bigamy. Comity, ss: A. B., of said county, being duly sworn, says,* that on tlie day of instant, [or, last past,] at the town of , in said county, one E. D., being then married to M. D., did wilfully and feloniously iaarry and take to wife, one E. B. ; the said R. D. well knowing that his said former wife, M. D., was then living and in fuU life. Sworn, &c., [as in § 594.] § 696. Complaint for Marrying the Wife of Another. County, ss: , A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in .said county, one R D. did knowingly, unlawfully and feloniously, marry, and take to wife, one M. K, she being then married, and the wife of R. R. Sworn, etc., [as in § 594] § 697. Complaint for Malicious Mischief. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did wilfully and maliciously administer to a certain horse, the property of the said A. B., a certain deadly poison, called arsenicj by mixing the same with the food of the said horse. Sworn, &c., [as in § 594.] § 698. Complaint for Malicious Trespass, or for Girdling Trees. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did wilfully, maliciously and unlawfully, cat down and destroy [or, wilfully and maliciously girdle,] nertain grow- mg trees, situate on the land of the said A. B., in sai^ town Sworn, (fee, [as in § 584.] JUSTICES' COURTS. 377 § 699. Complaint for Procuring Abortion. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R D. did wilfully and unlawfully administer a cer- tain drug called " savin," [or, did use and employ a certain instru- ment cjuled a "forceps,"] on the body of E. M., she being then pregnant, with intent thereby to procure the miscarriage of the said £. M. Sworn, (fee, [as in § 594.] § 700. Complaint for Malcing an Affray, County, ss : A. B. of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did, in a tumultuous manner, make an affray, wherein one R B. was assaulted, beat and abused, by the said R D., without any just and reasonable cause. Sworn, &c., [as in § 694.] § 701. Complaint for Cruelty to Animals. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past»] at the town of , in said county, one R D. did cruelly and maliciously kill [or, maim ; or, beat and torture] a certain bay gelding horse belonging to him, the said R, D., [or, to one O. D.] Sworn, &c., [as in § 594.] § 702. Complaint for a Rout, or Riot. County, ss: A B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, R D., D. D., A D., &o., &c., did unlawfully, tumultu- ously and routously, assemble together, to the manifest terror and disturbance of the citizens then and there being, with an intent mu- tually to assist each other, against all who should oppose them, in the execution of a certain enterprise, to wit, the assault and beating of , one T. M., with force and violence, and against the peace : and being so assembled, together with divers other persons unknown, they did, 378 NEW CLEEK'S ASSISTANT. afterwards, to wit, on the day and at tlie place aforesaid, proceed in a noisy, riotous and tumultuous manner, towards the house of the said T. M., in order to assault and beat him, the said T. M. ; \if the assault was committed, add: and did then and there violently and maliciously assault and beat the said T. M.] Sworn, (fee, [as m § 694.] § V03. Complaint for Selling Unwholesome Food. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D.- did knowingly, unlawfully and wickedly, sell to one M. B., a quarter of lamb, which had become tainted and unwhole-^ some. Sworn, &c., [as in § 594.] § 704. Complaint for Disturbing a Religious Meeting. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did wilfully and unlawfully disturb, interrupt and disquiet, an assemblage of people, collected for the purpose of re- ligious worship, by loud and profane discourse, [or, by rude and riot- ous noises ; or, by rude and indecent behavior.] Sworn, (fee!, [as in § 594.] § 705. Complaint to Obtain a Search Warrant. County, ss: A. B., of said county, being duly sworn, says, that certain personal property of the said A. B., [or, of one C. D.,] to wit : [describe the property f] of the value of dollars, or upwards, was stolen and feloniously taken from his dwelling house in the town of , in said county, on the day of instant, [or, last past:]* and that this deponent suspects that R. D. has stolen and taken the same as aforesaid ; and that the said property, or a part thereof is now concealed in the dwelling house of the said C. D., in the said county ; wherefore process is applied for to search the same. Sworn, (fee, [as in § 594.] A.B, JUSTICES' COURTS. 3:9 § 706. Search Warnint. County, ss: To the Sheriff of said County, or to any Constable of the Town [or, City] of , in said County, greeting: Whereas, A. B. has made complaint, upon oath, bcfoie me, J. H. B., one of the Justices of the Peace of the said county, that, (fee, [as in § 705, to the *, and then add:'^ and that he suspects that R. D. did steal and take the same, as aforesaid ; and that the said pro- perty, or a part thereof, is now concealed in the dwelling house of the said R. D., in said county : Therefore, the people of the State of New York command you to search the place where the said property is suspected to be concealed, in the day time, [or, as well in the niglit Ume, as in the day time,] and that you bring the same before me. Witness, &c., [as in § 648.] § 707. Oath of Complainant, or Witness on Complaint. You do swear in the presence of Almighty God, that you will true answers make to such questions as shall be put to you, toucliing this complaint against C. D. § 708. Recognizance in Justices' Courts. State of New York, >g^. County, S We, C. D. and E. F., of , in said county, acknowledge ourselves to be severally indebted to the people of the State of New York ; that is to say : the said C. D. in the sum of dollars, and the said E. F. in the sum of dollar.s to be well and truly paid, if default shall be made in the condition following : The condition of this recognizance is such, that if the said C. D. shall personally appear at the next Court of Oyer and Terminer, [or, Court of Sessions,] to be held in and for said county,* then and there to answer to a complaint against him for, &c., [state the contr plaint,'] and to do and receive what shall, by the court, be then and there enjoined upon him : [if the recognizance is entered into by a witness and surety, say: then and there to give evidence on the part of the said people against C. D., charged with, &c., [as the of- fence may he,] as well to the grand jury as to the petit jury,]* and- shall not depart the court without leave ;] [in a recognizance on a peace warrant insert here: and in the meanwhile shall keep the peace towards the people of this State, and particularly towai-ds A hbO NEW CLERK'S ASSISTAIfT. B., and- oiial all that part of the form between the two **,] then this recognizanee to be void; otherwise of force. Taken, subscribed, and acknowledged, ) CD. [l. s.l the day of , 18 , before me, J E. F. [l. a.' G. H., Justice, &c. § 709. Becord of Conviction at Special Sessions. State of New York, ) g. County, 3 ' > . Be it remembered, that at a Court of Special Sessions, held y the undersigned, a Justice of the Peace of the said county, this day of , 18 , at his office in the town of , in said county, C. D. was brought before the said court, charged" on the oath of A. B., with having, on the day of ,18 , at the town of , in said county, &c., [state the offence:'] which charge, [or, charges,] being stated in the warrant by me issued, [or, issued by S. T., Esq., one of the Justices of the Peace of the said county,] was [or, were] distinctly read to the defendant in open court, to which he plead not guilty, [or, guilty :] whereupon such proceeding's were had in the «aid court, that the defendant was con- victed of the charge [or, charges] above specified,* and the court rendered judgment thereon, that the said C. D., &c., [as the judg- ment may "ie.] In witness whereof, I have hereunto subscribed these presents, the day of , 18 . G. H., Justice of the Peace. § 710. Commitment from Spedal Sessioiis. State of New York, ) g^. County, J ■ / To any Constable of the said County, greeting : At a Court of Special Sessions, duly held by the undersigned, &o., [as in § 709, to the *, and then add .•] and the court having rendered judgment thereon, that the said C. D., (fcc, [as the judgment may be;1 Therefore the people of the State of New York command you to convey the said C. D. to the common jail of the said county, the keeper whereof is' hereby required to keep him in safe custody in the said jail, until the judgment so rendered be satisfied, or he be dis- charged by due course of law. Witness, &c., [as in § 648.] CHAPTER XXVI. LANDLOED AND TENANT. PBACTIOAL REMARKS. 1 The relation of landlord and tenant exists, wherever there is a contract for the possession and profits of lands or tenements, on one side ; and a recompense, by payment of rent, or some reciprocal con- sideration, on the other. The contract is called a lease, or demise, and may be for life, for a term of years, or at the -will of one of the parties. If the lessee, or tenant, parts with any portion of the term, the contract assigning such portion is called an underlease.' 2. The law will imply a tenancy, from the mere occupation of pre- mises, pending the execution of a lease; or an occupation and payment of rent under an invalid agreement; or where a tenant for years holds over after the expiration of his term, with the landlord's consent; or from the mere payment of rent, where it bears any reasonable proportion to the value of the premises. And where the tenant continues in possession for two weeks after the expiration of his term, though alledging that he does not intend to remain, the landlord may regard liim as a tenant for another year, if he thinks proper to do so." 3. A bargain for rooms in a boarding-house is not a lease.' 4. Leases for a year, or any less time, may be made by a verbal agreement; in all other cases, they must be in writing, and if for life, executed under seal, and in the presence of a witness.* 6. A covenant to pay rent, founded upon a lease for five years, not reduced to writing, Ls void for want of consideration." 6. A lease of three years, or for any longer period, must be recorded in the county where the premises are situated, in the same manner as conveyances of real estate ; otherwise it is void as against i7Cowen, 326. I < 2 R. S. (3 d ed.) 22, § 137 ; Id 194, 5 8; 16 » 4 Cowen, 350, 473 ; 1 Denio, U3. Wendell, 465 ; 21 Id. , 492 ; 10 Paige, 393, 537. • 1 Denio, 602. I » 7 Hill, 83. 382 NEW CLEEK'S ASSISTANT. a subsequent purchaser in good faith, and for a valuable consideration. Leases for life or lives, or for years, in the counties of Albany, Ulstei, Sullivan, Herkimer, Dutchess, Columbia, Delaware and Schenectady, in the State of New York, need not be recorded.' 7. In South Carohna, a conveyance of an estate in land for hfe,.or lives, must be in writing, signed, sealed and delivered. In Virginia and Kentucky, the same rule prevails as to all estates or interests in land exceeding a term of iive years; and in Rhode Island and Ver- mont, as to all estates exceeding a term of one year. In Louisiana, all conveyances of land must be in writing, and registered in the office of a notary.^ 8. A lease for years, without saying how many, is good for twc years. In the city of New York, if no time is agreed on as to the duration of an agreement for the occupation of lands or tenemeniS; it will be deemed valid until the first day of May next after posses sion is given." 9. Where a lessor consents to a change of tenancy, and accepts a substituted tenant, the first tenant is discharged.' 10. A new lease, if vaUd, whether by parol or not, will operate a= a surrender of a former lease." 11. The interest of a tenant under a lease executed by a mortga- gor, subsequent to the execution of a mortgage, is extinguished by i. foreclosure and sale under such mortgage." 12. Where a fraudulent representation is made by a landlord, en, to the property demised, or the extent of his rights, the lesaea ia ui- titled to a deduction from the rent for the fraud.' 13. Interest is recoverable on a covenant for the paymenc of rent, from the time the rent is due, even where the rent is payable in grain or services, the value of which is not hquidated by the lease.' 14. A covenant by the lessee to pay assessments runs with the lease, and the assignee of the term is bound by it.' 15. There are four kinds of leases — -for life or lives, for years, at will, and iy sufferance. A tenant at will is one who occupies under an agreement to be determined ai the pleasure of either of the par- ties. One who enters under an agreement to purchase, or for a leasei but has not paid rent, is ai tenant at will ; a parol gift of lands has also been held to create this species of tenancy. If the agree- ment be to let premises so long as the parties choose, reserving a compensation to be paid daily, it creates a tenancy at will. A notice to quit terminates a tenancy at will, and turns it into a tenancy from year to year. Where a tenant holds over after the expiration of his I2R. S. (3(1 ed.) 40,51 ; Id., 47, §5 44,49 ; ' Wendell, 485; 6 Id., 213 ; 8 Id., 260. * 4 Kent's Comuientariea, (2d ed.) 451. . » 2 R. S. (3il ed.) 29, J 1. t 2 Barbour's S. C. Rep., 180. » 2 Barbour's S. C. Rep., 180. e 3 Denio, 214. ' 1 Comstock, 305. » 2 Comslock, 135. » 2 Comstoclt, 394. LANDLORD AND TENANT. 383 term, or where a person selling lands refuses to deliver them up, and continues in possession, a tenancy by sufferance is ci-eated.' 16. No lease or grant of agricultural land, for a longer period than twelve years, made subsequent to the first day of January, one thou- sand eight hundred and forty-seven, in whicli any rent, or service of any kind, is reserved, will be valid ; and all lines, quarter sales, and other like restraints upon alienation, reserved in any grant of land subsequent to that day, will likewise be void." IT. A tenancy at will, or by suflferance, may be terminated by the landlord's giving one month's notice in writing to the tenaiit In the Eastern States, three months, and in the Middle and Southern States, six months' notice is required. A tenant liiay also give notice of his intention to quit the premises, and if he does not yield pos- session at the time specified in his notice, he is liable to pay double rent' 18. A tenancy from year to year may be determined, in New York and Vermont, by a notice of at least half a year, (182 days, or six calendar months,) ending with the period of the year at which the tenancy commenced. In Massachusetts, reasonable notice is required, and a notice of sixtyllays has been held sufficient In Pennsylvania, the notice is one of three months, in all cases.'' 19. Where a tenancy is for a short period — as for a quarter, a month, or a week — the length of the notice must be regulated by the letting ; as a month's notice for a month's letting, and a week's notice for a week's letting.' 20. Distress for rent has been abolished in the State of New York. In aU cases where the right of re-entry is reserved and given to a grantor, or lessor, in any grant or lease, in default of a sufficiency of goods and chattels whereon to distrain, such re-entry may now be made at any time after default in the payment of the rent, provided fifteen days' notice in writing, of the intention to re-enter, be given by the grantor or lessor, his heirs or assigns, to the grantee or lessee, his heirs, executors, administrators, or assigns ; and this, notwith- standing there be a sufficiency of goods and chattels to saiisfy the rent,. provided the same were taken in distress.' 21. The mode of re-entry above provided, by gi^'ing a notice of ■fifteen days, does not repeal that under the Kevised Statutes ; the former is merely an additional mode.' 22. A tenant or under tenant, or his assigns or legal representa- tives, may be removed from any premises occupied by him, by any 1 4 Johnson, 160; 4 Cowen, 349 ; 11 Wen- dell, 019; 23 1(1., 616. 2 Amended Constitution of New York, Ar- ticle I., M 14, 15. a 2R, S. (3d ed.) 30. 55 7-9; U Wendsll, 616. * 4 Kent's Commentaries, (2d ed.) Ill- 113; 1 Johnson, 3-2ti; S Cowen, 13. 6 4 Kent's Commentaries. (2d ed.) 113. » Laws or 1*16, chap. 274. ' 2 Barbour's S. C. Rep., 316. 384 NEW CLERK'S ASSISTANT. Judge of the County Courts of the c6unty, or by any Justice of the Peace of the city or town where such premises are situated ; or by any Mayor or Recorder of the city where such premises are situated ; or in the city of Nev/ York, by the Mayor, Recorder, any Justice of the Marine Court, or any one of the Justices of the Justices' Court of the city of New York; where such tenant holds over and continues in possession of the premises, or any part thereof, after the expira- tion of his term, witliout permission of the landlord ; or where the tenant holds over without permission after default in the payment of rent, and a demand has been made of the rent, or three days' notice in writing served on the tenant, requiring payment of the rent or possession of the premises ; or where the tenant or lessee of a term of three years, or le*, has taken the benefit of any insolvent act, or been discliarged from liability to imprisonment ; or where one holds over and continues in possession of any real estate which has been sold under an execution against him, after a title under such sale has been perfected.' 23. Rent previously due may be collected by action, after the sum- mary removal of the tenant for non-payment of rent' 24. If any tenant, being in arrear for rent? desert the demised premises, and leave the same unoccupied and ttncultivated, any Jus- tice of the Peace of the countv may, at the request of the landlord, and upon due proof that the premises have been so deserted, go upon and view tlie premises ; and upon being satisfied, upon supli view, that the premises have been so deserted, he shall affi.x a notice in writing upon a conspicuous part of the premises, requiring- the tenant to appear, &c., as in-the form hereinafter given, at some time to be specified in the notice, not less than five nor more than tw^enty days, after the date thereof.' 25. Where any forcible entry is made into any lands or posses- sions : or where the entry is made in a peaceable manner, and the possession held by force, the person so forcibly put out, or so forcibly holden out, of possession, and the guardian of any such person being a minor, may be restored to such possession, by making complaint to a Justice of the Supreme Court, or County Judge ; any Mayor, Re- corder, or Alderman, of any city ; or, in the city of New York, in addition to 'the officers already named, to any Justice of the SuperioB, or Marine Court, or any Justice.* 26. An affidavit made by an agent, under the statute authorizing summarj' proceedings to recover possession of land, must state the ■ ? II. S. (3a eil.) 603, § 28 ; Laws of 1849, chap, 193 : 5 Cowcn, 448 ; 8 Id., 68 ; 5 Wen- dell, 2Sl; 9Id,,2?7; 11 III., 016; 15 Id., 236; 17 Id., 464; 19 Id., 103; 21 Id., 687; I Hill, 612 : 6 Id., 314, 507 j I Denio, 190. ' SUenio, 452. » 2 a. S. (3d ed.) 603, 5S 24. 25. « 2 a. S. (3(1 ed.).'J C. D. fi. b.1 G.H. ) LANDLORD AND TENANT. 389 § 720. Lease and Chattel Mortgage. * Tliis agreement, made the day of . 18 , between A. B., of, &c., of the first part, and C. D., of, ]] not suffer any person to speak to them, nor speak to them yourself, unless to ask them if they have agreed upon their verdict, until they have agi-eed on their verdict, or are sooner discharged by me. So help you God. § 743. Security for Rent on Proceeding for Nbn-PaymetU.' We hereby jointly and severally engage to pay A. B. the sum of dollars, for rent due him for the occupation of, [describe the premises,] and for the costs and charges of a certain application to remove the luidersigned C. D. from the said premises, under the provisions of the statute authorizing summary proceedings to recover ' SiJT of the jurors summoned are to be drawn hy the magistrate, in the same manner as in justices' courts. The finijing of the jury before a justice of the peace, or his decision, where no jury is called, must be entered in his docket, and judcjment rendered therefor. The judgment must also include the costs of the prevailing party, according to the rales pre- ecnbcU (or smiilar services in civil actions in justices' courts, and the warrant fr)r delivery must direct the collection of such costs, or an execution may he issued for that purpose (Laws of 1849, chap. 193.) Where proceedings are had before a justice of the peace, Ihev may be removed to the County Court by appeal. (See the note to § 743, p. 403. ) > Upon giving security satisfactory to the magistrate, the issuingof the warrant of removal will be stayed. LANDLORD AND TENANT. 401 the'possesaoif of land in certain cases, within ten days from the date hereof. Dated and sealed, this day of , 18 . C. D. [l. s.] E. F. L.M. L. S.J L. B. § '74:4c. Notice to Remove, in a case of Tenancy aX Will, to be Served as in § 7S2. To 0. D., of : You are hereby required to remove from, and quit the premises which you now hold of me, situate in the village of , in the county of , within one month after service of this notice. Dated the day of ,18 Yours, (fee, A. B. § 745. Affidavit to be Made by the Landlord to obtain Summons, in a Case of Tenancy at Will. County, ss: A. B., of , in said county, being duly sworn, says, that ance the day of , in the year , C. D., of the same place, has held and occupied the house and lot in the of , on street, where the said C. D. now resides, as the tenant of this deponent, and at his will, and mthout any cer- tain tinif agreed on for the termination of said tenancy ; and that this deponent caused a notice in writing to be served on the said C. D., in due form of law, on the day of last past, requiring him to remove from the said premises within one month from the day of service thereof ; And this deponent further says, that the said time has expired, and that the said (J. D., or his assigns, hold over and continue in possession of the said premises after the expiration of the said time, without the permission of this deponent Sworn, &c., [as in § 731.] A. B. § 746. Summons thereon to the Tenant, to Remove or Show Cause. To C. D., of : Whereas, A. B. has made oath in writing, and presented the same to me, that since the day of , in the year ' , you have held and occupied the house and lot in the of 402 NEW CLEEK'9, ASSISTANT. in street, where you now reade, as his tenant, and at his will, without any certain time agreed on for the termination of said tenancy; and that he caused a notice in writing to be served on you in due form of law, on the day of last past, requiring you to remore from said premises witliin one month from the day of the service thereof ; and that the said time hath expired, but that you, or your assigns, hold over and continue in possession of said premises after the expiration of said time, without the permission of the said landlord : Therefore, in the nams of the people of the State of New York, you are hereby summoned and required, forthwith to remove from the said premises, or show cause before me, at my office, in the town of , in said county, on the day of instant, why possession of the' said premises should not be delivered to the said landloril. Witness, &c., [as in § 732.] , § 747. Warrant to Remove the Tenant. To any Constable of the Town of , , , in the County of , greeting : Whereas, A. B. made oath in writing, and presented the same to me, that since the ■ day of , in the year , C. D., of , has held and occupied the house and lot in the of , in street, where he now resides, as Ms tenant and at his will, without' any certain time agreed on for the termina- tion of .said tenancy ; and that he caused a notice in writing to be served on him, tlie said tenant, in due form of law, on the day of last, requiring him to remove from said premises within one month from the day of the service thereof : and that the said time has expired, but that the said tenant, or liis assigns, held over and continued in possession of said premises after the expu-ation of said time, without the permission of said landlord ; whereupon 1 issued a summons, requiring the tenant to remove from said premises, or show cause before me, at a certain time now pajj;, why the landlord should not be put in possession of said premises ; and due proof of- the service of said summons having been made to me, and no good cause against the landlord's application having been shown, or any way appearing : Therefore, the people of the State of New York bomtoand. you to remove all persons from the said premises, and put the said A. B. into the full possession thereof Witi^ess, (fee, [as in § 732.] LANDLORD AND TENANT. 403 § 748. Affidavit for Appeal to Comity Court}- County, ss: C. D., of said county, being duly sworn, deposes and says, that on the day of 18 , A; B., of , in said county, made and presented to G. H., Esquire, a Justice of the Peace, in and for said county, his affidavit, of which the following is a copy, to wit: [Insert here the affidavit^ "Whereupon the said Justice issued his summons, dated on the day of , 18 , requiring this deponent forthwith to remove from the premises, in the said affidavit of the said A. B. men- tioned, or to show cause before the said Justice, at his office in , on the day of , 18 , at o'clock in the noon, why possession of the said premises should not be delivered to the land lord ; [If the summons is informal, insert a copy of it;'\ on which said day, to wit, the day of , 18 , the said A. B. and the said C. D. appeared before the said Justice, whereupon the fol- lowing proceedings were had : [Here state the proceedings, with the evidence of the witnesses, if any were sworn.'\ Deponent further says, that upon such hearing, the Justice gave judgment for the said A. B., that the said premises in his said affi- davit mentioned, should be delivered to him as the landlord ; \or, against the said A. B., and that the said premises in his said affidavit mentioned, should not be delivered to him as the landlord] And deponent assigns the following grounds of error, upon which he appeals to the County Court of the said county of , to wit: [State the grounds of error distinctly and condsely.'\ Sworn, (fee, [as in § 731.] C. D. I hereby allow the within appeal, this day of , 18 . J. P. H., County Judge, 1 The pr&ceedings before a JoBCice of the Peace, under the act authorizing the removal of tenants, &c., may be removed bv appeal to the County Court of the county, in the same man- ner, and wiih the like eflect, and upon like security, as appeals from the judgment of Justices of the Peace in civil actions : but the decision of tlie County Judge must be a reversal or a/fTinnance of the justice's judgment, and will be final, r But where the tenant appeals, and desires the issuing of the warrant or execution to be stayed, security must also be given for the payment of all rent, accruing or to accrue subsequent to the application to the Justice. Th& security must in all cases be approved by the County Judge at the time of allowing tha appefd, and served on the justice witn the affidavit for appeal. (Laws of 1849, chap. 193.> 40^ NEW CLERK'S ASSISTANT § 749. Ifotice of Appeal} In the matter of") A. B., landlord, ( Summary proceeding to recover possession of against f land, before G. H., Esq., Justice of the Peace. C. D., tenant J Sir: Please take notice, that C. D., above named, appeals from the judgment rendered against him by G. H., Esquire, Justice of the Peace aforesaid, on the day of last, which judgment is mentioned and referred to in the -within [or, annexed] affidavit, and herewith served on you, to the County Court of the county of ; and that the said appeal will be heard by the Hon. J. P. H., County Judge, at his office in the city of , on the day of next, at ten o'clock in the forenoon. Dated , July 30th, 18 . CD. ToA.B. § 750. Undertaking on Appeal. In the matter of] A. B., landlord, I Summary proceeding to recover possession of land,' against | before G. H. Esq., Justice of the Peace. C. D., tenant J C. D., above named, having appealed to the County Court of county; from the judgment rendered against him in this proceeding, [describe the judgment :"] Now, therefore, in order to stay the execution of the said judgment, and in consideration thereof, WB, L. M. and S. T., undertake and promise to, and with the said A. B., that if judgment be rendered against the said C. D., on the said appeal, and execution thereon be returned unsatisfied in whole or in paxt, we will pay the amoimt unsatisfied : [If the appeal is made by a tenant, add: And we do further promise and undertake, to and with the said A. B., that the said C. D. shall punctually pay all rent accruing or to accrue upon said premises subsequent to the applica- 1 A copy of the affidavit for appeal, and a notice of the appeal, must bo served on the op- posite party, within twenty days after the rendition of the judgment, and also on the juslice. If the^arty be a resident of the county, the service may be personal, or by leaving the copy of tne affidavit and notice at his residence, with some person of suitable age and tUscrelion; if lot a resident, the service may be on the attorney or agent, if any, who ia a resident of tba city or county, who appeared for him in the trial. LANDLORD AND TENANT. 405 tion to the Justice, at the time or times when the same becomes due and payable, and that in default thereof, we will pay the same.] Witness our hands and seals, this day of 18 . L. M. [l. 8.1 S. T. [l. s.] I approve of the above undertaking and the surety [or, sureties,] therein mentioned. J. P. H., County Judge. § 751. Petition and Affidavit, where Premises are Vacated. To S. T., one of the Justices of the Peace of the county of ; The petition of A. B., of in said county, respectfully showeth: That he demised to C. D., of, &c., the premises lately occupied by the said C. D., on street, in the village of , in said county, for the term of one year from the day of . , one thousand eight hundred and , at the yearly rent of dollars, payable quarter yearly, that the said C. D. entered into the possession of the said premises as tenant thereof, by virtue of the said demise, and is now indebted to your petitioner in the sum of dollars, for one quarter's rent of the said premises, due tlie day of ,18 ; and that he has deserted the same, leaving the said rent in arrear, and the premises unoccupied and imcultivated. Your petitioner, therefore, requests that you go upon and view the premises, and if satisfied, upon such view, that the premises are so deserted, that you aflSx a notice in writing upon a conspicuous part thereof, requiring the tenant to appear and pay the said rent Dated the day of , 18 . A. B. County, ss: A. B., of said county, being duly sworn, says, that the facte set forth in the above petition subscribed by him, are true. Sworn, &c., las m § 731.] § 752. Notice of Justice on Foregoing Petition. NOTICE. To C. D., of : You are hereby notified, that at the request of A. B., your land- lord, and upon due proof made to me that he had demised to you the premises upon which this notice is affixed, and that you were in arrear for one quarter's rent, amounting to dollars ; and that you had deserted the premises, leaving such rent in arrear, and left 406 HEW CLERK'S ASSISTANT. them unoccupied and uncvdtivated, I have viewed tiifi said premises, and am satisfied, upon such view, that the same have been so desert- ed; Therefore, you are hereby required to appear, on the day of , at o'clock in the noon, at the place where this notice is affixed, and pay the rent due, or the landlord will be put in possession of the premises. Dated the day of , 18 . S. T., Justice of the Peace § 753. Mecord of Justice, where Premises are Deserted.' State of New York, )g. Coimty, J Be it remembered, that on the day of , one thousand eight hundred and , A. B., by petition presented to me, set forth that he had demised to C. D., &c., [as in petition;] and for which there is now due to the said A. B., for arrears of rent for the same, the sum of dollars ; that C. D. deserted the premises, leaving the said rent in arrear, and left the premises un- occupied and uncultivated; whereupon, at the request of the said A. B., and upon due proof of the facts set forth as above, I did go upon and view the premises, and was satisfied, \ipon such view, that the premises were so deserted : Therefore, a notice in writing was affixed by me upon the front door of the dwelling-house thereupon, requiring the said C. D. to appear on the day of , at o'clock in the noon, at the place where the said notice was so affixed, and pay the rent due ; at which time and place I again viewed the premises, and the tenant not appearing and denying tnat any rent was due to the landlord ; nor he, nor any per- son for hun appearing to pay the rent in arrear, I did put the said A. B., the landlord, in possession of the premises above mentioned, free and clear of any demise to the said C. D., the same being by law from thenceforth declared void. Witness my hand, this day of , 18 . S. T., Justice, &c. ^ If the tenant appear at the time specified in the notice, and deny that any rent is due to the landlord, all proceedings will cease ; but if, upon the second view, the tenant or some one for him, does not appear and pay tiie rent in arrear, then the Jtistice n)ay put the land lord into possession, and any demise of the premises to the tenant willafrom thenceforth, be- come void. An appeal from the Justice's proceedings may be made by the tenant, at any titne within three months after such possession is delivered, to the County Court of the county. Security is to be given satisfactory to the Justice, as in § 704, and he is also to be served with notice of the appeal. The Justice must serve the landlord with the like notice of the appeal J and return the proceedings had before hirn to ihe court, within ten days after thenotice and security shall be given by the tenant. The court is required to examine the proceedings, and hear the proofs and allegations of the parties, in some summary way, and tfuch court may order restitution of the premises to be made to the tenant, with rosts to be "pai& by the landlord ; iu case of alhrmaliou, cost may be awarded against the tenant. LANDLORD AXD TENANT. 407 § 754. ^ond on Appeal from Justice'n Proceedings. Know all men, &c. ; [as in the usual form, to ike condition, and fhen add:] Whereas, certain proceedings have been had, at the in- Btance of A. B., against C. D., before S. T., one of the Justicesof the Peace of the county of , under color of the pro- visions 'of the statute authorizing summary proceedings to obtain possession of demised premises when deserted by the tenant; whereby the said A. B. was, on the day of last, put into the possession of certain premises by him demised to the said C. D., from which proceedings the said C. D. hath appealed to the County Court of said county. Now, therefore, the condition of this obligation is such, that if the said C. D. shall well and truly pay to the said A. B. all costs of such appeal which may be adjudged against such tenant, then this obliga- tion shall be void; otherwise of full force. Sealed and delivered ) C. D. [l. s.] in presence of > E. F. [l. s.J A. M. ) I approve of this bond as the security for the appeal therein men- tioned. - S. T., Justice. § 755. Notice to the Justice of the Appeal To S. T., Esq., Justice of the Peace : Sir : I have appealed, and do hereby appeal, to the County Court of the county of , from your proceedings at the instance of A. B., by which he has been put in possession of the premises lately occupied by me, in, the town of , > ^^ *'^^ county of , under color of the provisions of the statute authorizing summary pro- ceedings to recover possession of lands in certain cases : And of this you will take notice, and return the proceedings had before you to the said court, within ten days. Dated the day of ,18 . Yours, &c., 0. D. I 756. Notice to the Landlord of the Appeal ToA. B.: Sir: You will take notice, that C. D., upon giving the required security, has this day appealed to the County Court of the county of , from my proceedings at your instance, and by winch you have been put in possession of the premises situate in , in said county, and demised by you to the said C. D., for the term of years. Dated this day of , 18 . Yours, ifec, S. T., Justic& 408. NEW CLERK'S ASSISTANT. § 757. Complaint for Forcible Entry, and Affidavit.^ County, ss: The complaint of A. B., of , in said county, to G. H., Esq., County Judge of said county, showeth : That C. D., of , afore- said, on the day. of , in the year , at -the town of , in the county of , aforesaid, did unlawfully make a forcible entry into the lands and possessions of this complainant, to wit: the dwelling-house and appurtenances of this complainant there situate, bounded, &c., [insert hoimdariesf\ and then and there did violently, forcibly, and unlawfully, and with strong hand, eject and expel the complainant from his said lands and possessions, wherein this complauiant had, at the time aforesaid, an estate of freehold, \or, such other estate, as the case may Se,] then and still subsisting ; and that the said C. D. stUl doth hold and detain the said lands and pos- sessions from the said A. B., unlawfully, forcibly, and with strong hand, and against the form of the statute in such case made and pro- vided. Dated this day of , in the year A.R County, ss: A. B., of . , in said county, being duly sworn, says, that the facts and circumstances stated and set forth in the foregoing com- plaint, by him signed, are true. Sworn, &c., \asin § 731.] A B. § 758. Precept to Summon the Jury of Inqmry. County, ss: To the Sheriff, or any Constable, of the County of : In the name of the People of the State of New York, you are here- by commanded to cause to come before me, at the house of , in the town of , in said county, on the day of in- stant, at o'clock in the noon, twenty-four good and lawful inhabitants of the said county, duly qualified by law to serve as jurors, 1 The complaint may be made by anjr party in the actua] and peaceful possession oflanda at the time a forcible entry i« made, or in the constructive possession where there is a forci- ble holdings out. Upon receiving the complaint, the Judge issues the i^ecept to summon a jury, to the Sneriff or a Constable of the county, and at the same time notifies the party agamst whom the complaint is made, of the time and place of trial : which notice is to be served in the same manner as directed in the note to § 732. At the time appointed for tho return of the precept, the Judge admmisters an oath to the persons returned summoned, who appear, not bemg less than thirteen, nor more than twenty-three, well and truly to in- quire into the matters complained of, and a true inq^uisitiop thereon to make. .The jury then proceed to inquire into the matter, and hear the testimony ; the inquisition is to be made and signed before the Judge, and delivered to him. LANDLORD AND TENANT. 409 to inquire upon their oaths for the said people, of a certain forcible entry and detainer unlawfully made by C. D., as is said, into the dwelling-house of one A. B., in the town of , in said county, against the form of the statute in such case made and provided. And have you then there this precept. Given under my hand, the day of , in the year G. H., County Judge. § 'JB9. Notice to the Person Complained of. To CD.: On the complaint of A. B., of the town of , in the county of , made to me, the undersigned, G. H., County Judge of said county, that you did unlawfully make a forcible entry into the dwelling-house of the said A. B., situate in said town, and bounded, [insert description,'] and then and there did violently, forcibly, un- lawfully, and with strong hand, eject and expel the said A. B. from his Sbld dwelling-house, and do still unlawfully and forcibly, and with strong hand, detain and hold the said dwelling-house, and the posses- sion thereof, from the said A. B. : I have this day issued my precept, directed to the Sheriff, or any Constable, of said county, commanding him to cause to come before me, at the house of , in the town of , in said county, on the day of instant, at o'clock in the noon, twenty-four good and lawful inhabitants of the said county, duly qualified by law to serve as jurors, to inqidre upon their oaths of the said forcible entry and detainer ; of all which you are notified. Dated this day of , 18 . G. H., Coimty Judge. § 760. Affidavit of Service of Preceding Notice. County, ss: R R, of said county, being duly sworn, says, that on the day of instant, he served a notice, of which the annexed is a copy, on C. D., by delivering the same to him personally, \or, by delivering the same on the premises in question, to A. D., the son of the said C. D., of the age of twenty years and upwards, because the said C. D. could not be found ; or, by affixing the same on the front door of the house in question, there bemg no person on the premises • or, by affixing the same on the post at the principal entrance ol widl 410 KEW CLEEK'S ASSISTANT. premises, being a public and suitable place, and there being no house or person on said premises.] Sworn, &c., [as in § 731.] R. F. § 761. Inquisition of the Jury. • State of New- York, ) . County, j An inquisition taken at tlie house of , in the town of , in the county of , on the day of , in the year , by the oaths and affirmations of E. F., &c., [inserf the names of the jurors sworn, or by whom the inr quisition is signed,'] inhabitants of said county, duly qualified to serve as jurors, before G. H., Esq., County Judge of said county, who say upon their oaths and affirmations aforesaid, that A. B., of the town of , aforesaid, long since had an estate of free- hold, \or, as the estaie may 6e;] in the dwelling-house, with the ap- purtenances, situated in the town of , aforesaid, and bounded, &c., [as in complaint;'] and that the said A. B. was long since lawfully and peaceably possessed thereof; and that his said es- tate and possession so subsisted and continued, until C. D., of the same place, on the day of , X^e depositions taken before the Judges should be reduced to writing^ and entitled as in § 772. The certificate of thi physicians, and other papers, together with a report of the proceedings and the decision, are to be filed by the Judge in the office of the County Cleric Be is also required to report the facts to the Board of Superrisors. 27 CHAPTER XXVin. MECHMICS' MD LABORERS' LIEN. PRACHCAL REMARKS. 1. Any person who, by virtue of any contract ■with the owner or his agent, or any person who, in pursuance of any agreement with any such contractor, and in conformity with the terms of the contract with such owner or agent, performs any labor, or furnishes materials, in building, altering or repairing, any house or other building, or ap- purtenances, in the several cities of the State, and in the villages of Williamsburgh, Geneva, and Canandaig-ua, has a lien upon such house or building, and appurtenances, and upon the lot on which the same may stand, to the extent of the owner's interest therein ; but the ag- gregate of all the liens for labor and materials, in any case, is not to exceed the price stipulated to be paid therefor by the owner or his agent In order to perfect this lien, specifications of the work to be performed, or materials to be furnished, stating the prices to Ije paid therefor, or a true copy of the contract, if there be any in writing, must be filed in the office of the Clerk of the county, and a notice thereof served on the owner, or his agent, within twenty days after making such contract, or commencing such labor, or furnishing such materials. The County Clerk enters in a book alphabetically, the names of the owners, and opposite to them the names of the contract- ors, or laborers, or other persons claiming a lien, and the lot of land on which the work is to be done, or materials furnished, and the time of filing the specification, or copy of the contract The book in w;hich these entries are made, is called " The Mechanics' and Labor- ers' Docket'' The lien thus created, takes eflfect from the time of the filing of the specification, or copy of the contract, and continues in force for the space of one year thereafter. 2. In order to enforce this lien, the OTvner, contractor, laborer, or MECHANICS' AND LABORERS' LIEN. 419 person furnishing materials, must serve a notice on the other party, personally, to appear and submit to an accounting and settlement, in the Court of Common Pleas of the city and county of New York, or in the County Court, or any Justice's Court of such county, (except ■ in New York,) or in the Marine Court in the city of New York, as in the form hereinafter given. Within ten days after service of such notice, the owner, or his agent, is to be personally served with a bill of the particulars of the amount claimed to be due, and with a notice to produce a bill of particulars of any offset which may be claimed, within ten. days thereafter. If the contractor, laborer, or person fur- nishing mateiials, doe's not appear and produce his claim, in pursu- ance of the notice to be served, as aforesaid, he loses his lien. If the owner does not appear, his default may be entered, and a writ of inquiry issued to the SheriflF ; or, if in the Marine Court of the city of New York, or in a Justice's Court m any other city or county, the damages may be assessed, and judgment rendered, and execution issued thereupon, as in actions on contract Where the parties ap- pear, issue must be joined on the claims made ; notices of set-off and of trial, if necessary, be served ; and the same proceedings had as in actions on contract 3. Within thirty days after labor has been performed, or materials furnished, the person claiming payment therefor must either deliver to the owner, or his agent, a statement in writing, signed by himself and the contractor, specifying how much is due, or take the neces- sary proceedings against the contractor, as above dbected ; otherwise the lien wiU be lost 4. The owner is required to pay the amount agreed to be due by the statement of the laborer and contractor, or the judgment, if any be recovered ; which will be deemed a payment on the contract K the owner neglect to pay the sum due, for ten days after service of the statement or of a Hanscript of the judgment, the Clerk of the county, on having filed with him a duplicate copy of the statement signed by the laborer, or person furnishing materials, and the con- tractor, as aforesaid, with an aflSdavit that the same is a true copy, or a transcript of the judgment, with an aflSdavit of demand of the amount due, of the owner or agent, and of the refusal or neglect to pay, may issue an execution against such owner, in the same form as upon a judgment recovered on contract, on the day of the attach- ing of such lien, reciting that such execution is issued pursuant to the tenth section of the act of 1844 ; which execution will be sub- ject to the jurisdiction and control of the coui-t, as are also the liens and judgments docketed by virtue of the foregoing provisions. 5. Any person who shall furnish materials, or perform any labor, as above specified, may certify to the owner, or his agent, at any time previous to, or during the progress of the work, that he will discharge euch owner, or his agent, from any liability on the lien ; and such 420 NEW CLERK'S ASSISTANT. certificate; executed by the person in presence of a subscribing wit- ness, will be conclusive in barring such person from any lien.' 6. There is a special lien law applicable to the county of Richmond only, which may be found in Volume III, of the Revised Statutes, (3d ed.) p. 7 17. FORMS. § 773. Notice to Owner or Agent, of FUing Specification. . Sir: You will 'please to take notice, that I have this day filed in the oflSce of 'the Clerk, of the county of , a specification of work, [or, materials,] contracted to be performed [or, furnished] by me, and the prices agreed to be paid for the same, by E. F., of the citv \or, village] of : and that the said work is [or, materials arej to be done \or, furnished] upon and for the dwelling-house known as number , in street, in said city, [or, village.] Dated , the day of , 18 . CD, To Mr. A. B., of § 774. Notice of Filing Contract. Sir: You will please to take notice, that I have this day filed in the office of the County Clerk of the county of , a true copy of a contract, made and executed between E. F., of the city [or, village] of , and the undersigned C. D., dated the day of , 18 : and that the said cofttract relates to work or labor to be done [or, materials to be furnished] on or about the dwelling-house known as number , in street, in said city, [or village.] Dated, 1 Kent's Commentariea, (2d ed.) 421 ; 2 Wheaton, 269 ; 6 Id., 49. NATURALIZATION. 425 than Ms own oath, that he has resided five years, at least, ,within the United States, and -one year, at least, within the State where the court is held; and if he shall have arrived after the peace of 1815, his residence must have been continued for five years next preceding his admission, without being at any time, during the said five years, out of the territory of the United States. " He must satisfy the court that, during that time, he has behaved as a man of good moral charac- ter, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. He must, at the same time, renounce any title, or order of nobUity, if any he has.' 3. The children of persons duly naturalized, being minors at that" time, wUl, if dwelling in the United States, be deemed citizens. If aiiy alien shall die after his declaration, and before actual admission as a citizen, his widow and children will be deemed citizens.'^ 4. Any alien who may purchase and take a conveyance of lands or real estate in the State of New York, or to whom tJie same may be devised, or would descend if he were a citizen, and who shall have filed the deposition or affirmation, a form of which is hereinafter given, or who may file the same within one year from the time of such pur- chase, devise, or descent cast, may hold or convey such land or real estate, during the term of five years from the 10th day of April, 1843, in the same manner as if he were a citizen.' 5. A married woman, who is an alien, may be naturalized.* FORMS. 8 781. Declaration of Intention, and Certificate of Cleric. I, A B., do declare on oath, that it is lona fide my intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to all and any foreign prince, potentate, state, and sovereignty, whatever ; and particularly to Victoria, Queen of the United Kingdom of Great Britain and Mand, [or, as the name and title of the sovereign may bei\ Sworn in open court, this ) A B. day of , 18 , before me, j W. B., Clerk of the Court of 1 Lawa of U. S., 1802, chap. 28; Id., 1813, chap. W4 ; Id., 1866, chap. 32 ; Id,, 1824, chap, 186; Id., 182ti, chap. 106; 7 Hlll,.66, 137. a 2 Kent's Commentaries, (2d ed.) 64, 66 ; Laws of Ij. S. 1804 chap 47, • 2 R. S. (3d ed.) 4, 5, §§ 16-21 ; Laws of 183U, chap. 171; Laws of 1836, chap. 339; Laws of 1838, chap. 32 ; Laws of Viii, chap. 87; Laws of 1846, chap. 115; 6 Paige, 114; 6 Id,, 418; 20 Wendell, 338; 21 Id., 09; 3 Hill,67, * 20 Wendell, 338. 426 NEW CLERK'S ASSISTANT. I, W. B., Clerk of the Court of , being a court of record, having common law jurisdiction, and Oath. State of New York, )g. County, J E. R, of said county, being duly sworn, doth depose and say, that he is a citizen of the United States ; that he is well acquainted with the above named CD.; and that the said C. D. has resided within the limits, and under the jurisdiction of the United States, for five years last past, and, for one yfear last past, within the State of New York ; and that during the same period he has behaved himself as a man of good moral character, attached to the prhiciples of the Constitution of the United States, and well disposed to the good or- der and happiness of the same. And he further saith, that, at the time the said C. D. arrived in the United States, he had not attained his eighteenth year. Sworn, &c., [tw in % 783.] E. F § 786. Declaration of Intention to become a Citizen for Three Years past. 1, C. D., do declare, on oath, that it is bona fide my intention, and has been for the last three years, to become a citizen of the United States, and to renounce forever all allegiance to all and every foreign prince,-potentate, state; and sovereignty, whatever, and particularly to Ferdinand, Emperor of Austria. C. D. Swoim, &c., \_as in § 783.] § 787. Certificate of Citizenship. United States of America; State ) of New York, County, j Be it remembered, that on the day of , in the year of our Lord one thousand eight hundred and , A B., late of , in the kingdom of France, at present of , in the State of 1 aforesaid, appeared in the Court of *'2^ NEW CLEEK'S ASSISTANT. (the said court being a court of record, having comsion law juris- diction, and a clerk and seal,) and applied to the said court to be admitted to become a citizen of the United States of America, pur- suant to the directions and requisitions of the several acts of Con- gress in relation thereto: And the said A. B. having thereupon produced to the court such evidence, made such declaration and renunciation, and taken such oath as are by the said acts required; thereupon it was ordered by the said court, that the said A. B. be. admitted, and he was accordingly admitted by the said court, to be a citizen of the United States of America. In testimony whereof, the seal of the said court is hereunto affixed, this day of , in the year one thousand eight hundred and , and in the year of our independence the [l. s.] By the Court. W. B., Clerk. [jpbr the form, of the oath, see § 784.] § 788. Deposition of Alien to enable him to hold Heal Estate} United States of America; State ) of New York, County, p®' A. B., being duly sworn, doth depose and say, that he is a resident of vthe State of New York, and intends always to reside in the Uni- ted States, and to become a citizen thereof, as soon as he can be naturalized ; and that he has taken such incipient measures as the laws of the United States require, to enable him to obtain naturali- zation. Sworn to before me, this ) . , day of , 18 . J G. H., County Judge. 1 The depoGition, or affirmation, is to be made, or taken, before any officer authorized to take the proof of deeds, and is to be filed and recorded in the office of the Secretary of StatA. CHAPTER XXX. OFFICIAL OATH AND BOND. PRACTICAL REMARKS. 1. All persons elected or appointed to any civil office in this State, and in the several counties and cities thereof, are required to talie the official oath of office. Supervisors, Town Clerks, Assessors, Over- seers of the Poor, Commissioners of Highways, and Town Sealers, are also required to take such oath, within ten days after receiving notice of their election or appointment 2. Official bonds are to be executed within the time prescribed for taking the oath of office, unless otherwise directed by law. 3. Overseers of Highways, and Poundmasters, are requu-ed to give notice to the Town Clerk, in writing, signifying their acceptance of their respective offices, within ten days after receiving notice of their election or appointment 4. The official oaths and bonds of town officers are to be filed with the Town Clerk, except that the bond of a Collector is to be ffled with the County Clerk, and that Justices of the Peace are required to file their oaths of office, within fifteen days after the first day of January next after their election, in the offices of the County Clerks of their respective counties.' « 5. A person elected to the office of Justice of the Peace, and not taking the oath, but entering upon the duties of the office, is Justice de facto, although he is guilty of a misdemeanor.' ' Amneded Constituiion of New York, Art. lii j 1 R. S. (3cl ed.) 123, 5 122, et seq. j Id., 393, $ 29, til seq. >. 2 Barbour'a S. C. Rep., 32U. 430 NEW CLERK'S ASSISTANT. FOEMS. § 789. Official Oath. I do solemnly swear, \or, affirm,] that I will support the Constitu- tion of the United States, and the Constitution of the State of New York, and that I will faithfully discharge the duties of [give the title of the office\ according to the best of my ability. A.B. Sworn and subscribed, this day ) of ,18 , before me, j P. v., Qerk of the County of § 790. Notice of the Acceptance of a Town Office. To C. D., Clerk of the Town of , in the County of : Take notice, that I hereby accept the office of Overseer of Higl* ways of district No. , in said town of bated the day of , 18 . O. P. § 791. Instrument to he given by a Constable and his Sureties. H. C. B., chosen [or, appointed] Constable of the town of , in the county of ; and L. M. and S. T., as sureties of the said H. C. B., do hereby jointly and severally agree to pay to each and every person who may be entitled thereto, all such sums of money as the said Constable may become liable to pay, on account of any execution which shall be delivered to him for col- lection. I Dated .the day of , 18 . Executed in the presence of, and ) H. C. B. the sureties approved by, f L. M. E. F., Supervisor, [or, C. D,,Town S. T., Clerk] of the Town of u s. L. s'. L. S.' § 792. Sheriff's Bond.^ Know all men by these presents : That we, A. P., L. M., and S. T., of the town of , in the county of, , are held and • The penal sum of the Sheriir '8 bond in the city of New York, la twenty thousand dollars : and there must be two sureties. In other counties, the bond must be In tho penal sum of ten thousand dollars, with two or more sureties. OFFICIAL OATH AND BOND. 43J finnly bound unto the people of the State of New York, in the penal sum of thousand dollars, to be paid to the said people ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and seve- rally, firmly by these presents. Sealed with our seals, and dated the day of , A- D. 18 .* Whereas, the above bounden A. P. hath been elected to the office of Sheriflf of the county of , aforesaid, at the general election [or, at a special election] held therein, on thg day of : Now, therefore, the condition of the .above obligation is such, that if the said A. P. shall well and faithfully, in aU things, perform the du- ties and execute the oflSce of Sheriflf of the said county of , during his continuance in the said office, by virtue of the said elec- tion, without fraud, deceit, or oppression, then the above obligation to be void ; else to remain in full force. . _ - Executed in the presence of, and ) the sureties approved by, j P. v.. Clerk of the County of A. P. L. S. L. M. L .8. & T. L. S. § 793. Oath of Sheriffs Sureties, io he Indorsed on, the Bond. I, L. M., one of the sureties named in the within bond, do solemnly swear, that I am a freeholder within the State of New York, and worth the sum of thousand dollars, over and above all debts whatsoever owing by me. L. M. Sworn and subscribed, this day ) of , 18 , before me, J P. v.; Clerk of the County of § 794. Bond of a Deputy Sheriff. Know all men by these presents; That we, G. H., S. T., and 0. P., of the town of , in the county of , are held and firmly bound unto A. P., Esquire, Sheriff of the said county of , in the penal sum of thousand dollars, to be paid to the said A. P. ; for which payment, &c., [as in § 792 to the *, and then add:~\ Whereas the above bounden G. H. has been appointed to the of- fice of Deputy Sheriflf in and for the said county of , by the above named A. P., Sheriflf, as aforesaid ; Now, therefore, the condi- tion of this obligation is such, that if the said G. H. shall save and keep the said A. P. harmless of and from any liability incurred by 432 NEW CLERK'S ASSISTANT. and through any act of the said G. H., as such deputy, as aforesaid, then -this obligation to 'be void, otherwise of force. Signed and sealed in presence of C. D. G. H. 'l. s.' S. T. L. S." 0. P. L. S." § 795. General Form of an Official Bond. Know all men by these presents : That we, A. B., C. D., and E. F., of, (fee, are held and firmly bound unto the people of the State of New York, [or, the officer, or officers, to whom the bond is to be given,'\ in the penal sum of dollars, to be paid to the said fieople, [or officer, or officers, as aforesaid;^ for which payment, &c., as in § 792, to the *, and then add:^ Whereas, the above bounden A. B. has been appointed [or, elected] to the office of , [c/ive the title of the office i] Now, there- fore, the condition of the above obligation is such, that if the said A. B. shall, (fee., [follow the language of the statute prescribing the form of the condition,'] then the above obligation to be void ; else to re. main in full force. Signed and sealed in 1 A. B. presence of > C. D. G. H. y E. F. L. S. 'l. b.' L. 8.' CHAPTER XXXL PARTNERSHIP. PRACTICAL REMARKS 1. Partnership is a contract between two or more persons, to place their money, effects, labor and skill, or some or all of them, in any- lawful commerce or business, and to divide the profit, and bear the loss, in certain proportions. Universal partnership is a contract by which the parties agree to make a common stock of all the property ' they respectively possess. Particular partnerships are such as are formed for any business not of a commercial nature. Commercial partnerships are formed for the purchase of personal property, and the sale thereof, either in the same state, or changed by manufacture ; or for carrying persons or personal property, for hire, in ships or other vessels, or conveyances.' 2. The leading principles of a contract of partnership are, a com- mon interest in the stock of the company, and a personal responsi- bility for the partnership engagements.' 3. In order to constitute partners, between the parties, there must be a voluntary contract, and each party must engage to bring into the common stock something that is valuable, whether it be money, property, or services ; and there must also be a communion of profits. The shares must be joint, though it is not necessary that they should be equal.' 4. A parol agreement to enter into partnership immediately, is valid, — so, also, is an agreement to enter into partnership in future, if the parties really go into partnership.* < 3 Kent's Commentaries, (2cl ed.,> 23, et seq ; Story on Partnership, 2, et seq. 3 3 Kent's Commentaries, (2d ed.,) 24. • 4 Kent's Commentaries, (2d ed.) 25 ; 9 Johnson, 307 ; 10 Id., 226 j 15 Id , 409 : 16 Id., 34,489: 1 Wendell, 457; 18 Id., 175: 1 HUI,. 572; 3 id., 16!>. 4 Paige, 148. * 2 Barbour's Ch. Rep , 336. 434 NEW CLERK'S ASSISTANT. 5. Persons are answerable to the world as partners, if tliejr per- mit their names to be used in a firm, or participate in the profits of a trade : and each individual is liable to the whole amount of the debts, without reference to the proportion of his interest* . 6. Where two or more persons agree to have any business in which they are jointly concerned, carried on in the name of one, his name is the co-partnership name- or title.^ 7. A partner cannol bind his co-partner by a contract under seal, (except it be a release^ or an assignment of a chose in action due to the firm,) without his previous assent, or subsequent indorsement.' 8. Part owners of ships are generally regarded as tenants in com- mon, and not as partners, or joint tenants.' 9. A co-partnership cannot be proved by general reputation ; but other facts and circumstances must be adduced in order to establish 10. On an execution against one of several co-partners, the property of the firm may be seized, removed and sold, by the ofiBcer, and the purchaser at the sale will become a tenant in common with the other partner or partners ; but the right which such purchaser may acquire will be subject to the adjustment of the partnership concerns, and the debts of the firm must be first satisfied out of the partnersliip effects." 11. After the dissolution of a partnership, neither party can make any disposition of the partnership effects, inconsistent with the primary duty of paying the partnership debts ; though either party may re- ceive payment of debts due the firm, and apply the amount received on the partnership liabilities.' 12. After the dissolution of a partnership, the promise of one partner will not revive a debt barred by the statute of limitations ; for the dissolution revokes the presumed agency, except so far as relates to winding up the business of the firm.' 13. A species of partnership, similar to the French system of com- mandite, may be formed in this State, by two or more persons, for the transaction of any mercantile, mechanical or manufacturing business. Such partnerships may consist of one or more persons, who shall be called general partners, and shall be jointly and severally responsible as general partners in other cases ; and of one or more persons who shall contribute, in actual cash payments, a specific sum, as capital, to the common stock, who shall be called special partners, and who 1 9 Johnson, 470; 14 Id., 315 ; 19 Id., 226 j 1 WendeU,467;6 Id., 274; 6 Id., 263; 18 Id., 175. f 1 Denio, 402. > 9 Johnson, 285: 19 Id., 513; I Wendell, 326: 9 Id., 437; 12 Id., 53; 20 iil., 251 ; 2 Hill, 595 i 5 Id., 163. < 1 Johnson, 106 ; 20 Id., 611. » 20 Johnson, 176; 11 WendeU, 96; 20 Id., 81 ; 3 Hill, 333. • 3 Denio, 12t , 2 Barhour'a Ch. Rnp. 167. ' 2 Barbour's S. C. Rep., 62?. ' 2 Comstock, 622. PARTNERSHIP. 435 shall not be liable beyond the fund so contributed by him, or them, to the capital.* 14. In order to form a limited partnership, a certificate must be made and signed by the parties, as in the form hereinafter given. An affidavit of one or more of the general partners must also be mado, stating that the sums specified in the certificate as having been con- tributed by the special partners, have beei; actually and in good faith paid in cash. The certificate must be acknowledged and filed, with the affidavit, in the office of the Clerk of the county in which the business is to be carried on ; and, if such business is to' be conducted in more than one county, transcripts of the certificate and acknowledg- ment must be filed in such other counties. The terms of the partner- ship, when registered, are to be published for at least six weeks im- mediately after such registry, in two new^spapers, to be designated by the Clerk of the county, and to be published in the senate district in which the business shall be carried on." 15. In publishing the terms of a limited partnership, they must be in all respects truly stated, in each newspaper, or the special partners will become liable as general partners." 16. The general partners only may transact the business of a lim- ited partnership. A special partner may examine into the state of the partnership concerns, and advise as to their management; but his name cannot be used in the transactions of the firm ; nor can he interfere in the management thereof, either as agent, attorney, or otherwise, without rendering himself hable as a general partner. The business is to be conducted under a firm, in which the names of the general partners only can be inserted, without the addition of the word " company," or any other general term.* 17. Every association, or company, formed for the purpose of the transportation of passengers or property, either by boats, vessels or stages, is required to make a statement of the names of the persons composing such association, or company, and to file a copy thereof in the office of the Clerk of each county through which its business is transacted. Until such statement be filed, no suit will be abated, on account of the non-joinder of any of the members of the association, or company, against which the action may be brought' ■ 2 R. S. (3d ed.,) 19, 5§ 1, 2; 7 Paige, ess. > 2 R. S. (3d ed.,) 49, 60, § 4, at seq. ; 24 WendeU, 496 ; 6 Hill, 309 ; 6 Id., 479. > 3 Demo, 436. 4 2 R. a (3d ed.,) 60, i 13 ; Id., 61, & 17 j 24 Wendell, 496 : 6 Hill, 309 6 Id. , 479. > Laws of 1836, Clup. 3S5. 436 NEW CLERK'S ASSISTANT. FORMS. § 796. Articles of Co-partnership. — General Form. Articles of agreement, made the day of , one thou- sand eight hundred and , between A. B., of, &c., of the one part^ and C. D., of, &c., of the other part, ■witnesseth, as follows : The said parties above named have agreed to become co-partners in business, and by these presents do agree to be co-partners together, under and by the name, or firm of B. and D., in the business of wholesale dry goods merchants, and in the buying, selling and vending all sorts of goods, wares and merchandise, to the said business belonging, and to occupy the store No. , in street, in the city of ; their co-partnership to commence on the day of 18 , and to continue for the term of five years from thence. next ensuing, fully to be complete and ended ; and to that end and purpose, the said A. B. and 0. D. have delivered in as capital stock, the sum of twenty thousand dollars, share and share alike, to be used and em- ployed in common between them, for the support and management of the said business, to their mutual benefit and advantage. And it is agreed, by and between the parties to these presents, that at all times during the continuance of their co-partnership, they, and each of them, will give their attendance, and do their and each of their best endeavors, and, to the utmost of their skUl and power, exert themselves, for their joint interest, profit, benefit and advan- tage, and truly employ, buy, sell and merchandise, with their joint stock, and the increase thereof, in the business aforesaid : And also, that they shall, and will, at all times during the co-partnership, bear, pay and discharge, equally between them, all rents and other expenses that may be required for the support and management of the said business; and that all gains, profits and increase, that shall come, grow, or arise, from or by means of their said business, shall be di- vided between them, the said co-partners, share and share alike ; and all loss that shall happen to their said joint business, by ill commodi- ties, bad debts, or otherwise, shall be borne and paid equally between them : And it is agreed, by and between the said parties, that there shall be had and kept, at all times during the continuance of their co-partnership, perfect, just and true books of account, wherein each of the said co-partners shall enter and set down, as well all money by them, or either of them, received, paid, laid out and expended, in and about the SMd business, as also all goods, wares, commodities and merchandise, by them, or either of them, bought or sold, by reason or on account of the said business, and all other matters and things PARTNERSHIP. 437 whatsoever, to the said business and management thereof in anywise belonging ; which said books shall be used in common between the said co-partners, so that either of them may have access thereto, with- out any interruption or hindrance of the other : And also, the said co-partners, once in each year, during the continuance of the said co- partnership, as aforesaid (to wit : on the day of , in each year,) or oftener if necessary, shall make, yield and render, each to the other, a true, just and perfect, inventory and account, of all the profits and increase by them, or either of them made, and of all loss by them, or either of them, sustained ; and also, of all pay- ments, receipts and disbursements, and of aU other things by them made, received, disbursed, acted, or suffered, in their said co-partner- ship and business ; and the same account being so made, they shall, and will, clear, adjust^ pay and deUver, each to the other, at the time, their just share of the profits so made as aforesaid. And the said parties hereby mutually covenant and agree, to and with each other, that during the continuance of the said co-partnership, neither of them shall, nor wUl, indorse any note, or otherwise become surety for, any person or persons whomsoever, without the consent of the other of the said co-partners : And at the end, or other sooner determination of their co-partnership, the said co-partners, each to the other, shall and wiU make a true, just, and final account, of all things relating to their said business; and in all things truly adjust the same, and all and every stock and stocks, as well as the gains and increase thereof, which shall appear to be remaining, either in money, goods, wares, fixtures, debts, or otherwise, shall be divided between them, share and share alike. In witness whereof, the said parties to these presents have here- nnto set their hands and seals, the day and year above written. Signed and sealed in ) A. B. [l. s.] presence of J C. D, [l. ft.] G. H. § 191. Articles of Co-partnership between Oowvtry Merchants. Articles of agreement made and entered into, this day of , A. D. 18 , between A. B., of, &c., of the one part, and C. D., of, (fee, of the other part, witnesseth, as follows : The said A. B. and C. D. have joined, and by these presents, do join them- selves, to be co-partners together, in the business of general country merchants, and all things thereto belonging: and also, in buying, gelling and retailing, all sorts of wares, goods, merchandise and com- modities, and all kinds of produce usually kept and sold in- a country fit'Ore, and in such commission business as may appertain to the same- 438 KEW CLERK'S ASSISTANT. vhich said Co-partnership is to be conducted under the name, style and firm, of B. and D., at the village of , in the town of , aforesaid, and shall continue from the day of , 18 , for and during, and unto the end and term of years, from thence next ensuing, fully to be complete and ended : And to that end and purpose the said parties to these presents have, the day of the date hereof, delivered in as stock, the sum of dollars, share and share alike, to be used, laid out and em- ployed, in common between them, for the management of the said business of merchandising, as aforesaid, to their mutual, benefit and advantage,' And it is agreed between the said parties to these pre- sents, that the capital stock of the firm hereby constituted, shall be made and kept up to the sum of dollars, share and share alike; that the same may at any time be reduced, or extended, by agree- ment between the parties hereto; and that the said capital stock, together with all credits, goods, wares, or commodities, bought or obtained by the said firm, by barter or otherwise, shall be kept, used and employed, in and about the business aforesaid ; and for that pur- pose, each partner shall have power to use the name of the firm, and to bind the same, in making contracts and purchasing goods, at the city of New York, or elsewhere, and in otherwise trading, buying and selling, on account of the said firm, and for the benefit and be- hoof thereof, and not otherwise; provided, however, that neither partner shall contract liabilities in the name, and on the credit of the firm, in purchasing and replenishing their stock of goods and mer- chandise, to exceed the sum of dollars, without the consent of the other partner: And also, that neither of the said co-partners shall, or will, during the said term, exercise, or follow, the toade, or business, of merchandising, as aforesaid, in the county of , aforesaid, for his private benefit or advantage ; but shall, at all Ijmes, do his best endeavor, in arid by all lawful means, to the utmost of his skill, power and cunning, for the joint interest, profit, benefit and advantage, of the firm aforesaid; and truly employ, buy, sell and merchandise with the stock aforesaid, and the increase and profit thereof, in the business of merchants aforesaid, without fraud or covin ; and also, that the said parties shall and wiU, at all times du- ring, the said copartnership, bear, pay and discharge, equally between them, all rents and other expenses, &c., [as in the preceding form to the end; or, insert such other special covenants as the parties may req'uireJ] In witness, &c., [as in § 796.] PARTNERSHIP. 439 § 798. Agreement to JRenew Partnership, to he Indorsed on the Original Article. Whereas, the partnership formed by, and mentioned in, the within article of agreement, has this day expired, \or, will expire on the day of next,] by the limitations contained herein : It is therefore hereby agreed, that the sam« shall be continued, on the same terms, and with all the provisions and restrictions in said agree- ment mentioned, tor the further term of years from this date, [or, from the day of next] Witness our hands and seals, this day of , 18 . In presence of ) A. B. [l. s.] G.H. f C. D. [L.S.] § 799. Agreement of Dissolution, to he Indorsed on the Original Article. By mutual consent of the undersigned, the parties to the within agreement, the partnership thereby formed is wholly dissolved, except so far as it may be necessary to continue the same for the final liqui- dation and settlement of the business thereof ; and said agreement is to continue in force until such final liquidation and settlement be made, and no longer. Witness, &c., \as in § 798.] § 800. Certificate of Limited Partnership. State of New York, ) ^^ . County, 5 This is to certify, that the undersigned have formed a limited part- nership, pursuant to the provisions of the Revised Statutes of the State of New York, under the name or firm of B. & D. ; that the general nature of the business to be transacted is the buying and sell- ing groceries, and such other articles as are usually dealt in by' whole- sale and retail grocers : that A. B. and C. D., who respectively re- side in the city of New York, are the general partners ; that E. F., who resides at , in the county of , in the State of New York, and L. M., who resides at , in the county of , in the State of New Jersey, are the special partners ; thai the said E. F. has contributed the sum of ten thousand dollars, as capital towards the common stock, and the said L. M. has contributed 440 NEW CLERK'S ASSISTANT. tlie sum of five thousand dollars, as capital towards the common stock ; and that the said partnership is to commence on the day of ,18 , and is to terminate on the day of , 18 * Dated this day of , one thousand eight hundred and . A. B. C. D. E. F. L.M. § 801. Certificate of Acinowledgment. County, ss: On this day of ,18 , A. B., C. D., E. F., and L. M., known to me to be the persons described in, and who made and signed the preceding certificate, came before me, and severally acknowledged that they had made and signed the same. M. U. Judge of New York Common Pleas. § 802. Affidavit to be Filed with the Certificate. I County, ss: A. B., of said county, being duly sworn, says, that he is one of the general partners named in the above certificate, and that the sums specified in the said certificate to have been contributed by the special partners to the common stock, have been actually and in good faith paid in cash. Subscribed and sworn before me, ) A. B. this day of , 18 . ) M. U., &c. § 803. Designation of the Newspapers in which the Publication is to be made. Let the terms of the limited partnership between A. B., C. D., E. F., and L. M., be published in the , and the , which papers are published in • , in county. J. C., Clerk of the City and County of New York. ■ The certificate must be acknowledged, (not proved,) before a Justice of the Supreme Court, or a Judge of the County Courts, in the same manner as conveyances ol^ real estate. The affidavit may be made before a Judge, or a Commissioner of Deeds, or the County Clerli; PARTNERSHIP. 441 § 804. Notice to he Published. NOTICE OF LIMITED PARTNERSHIP. Notice is hereby ^ven, that A. B., and C. D., who respectively reside in the city of New York ; E. F., who resides at , in the county of , in the State of New York, and L. M., who resides at , in the county of , in the State of New Jersey, have formed a limited partnership, pursuant to the provisions of the Revised Statutes of the State of New York, for the buying and selling groceries, and such other articles as are usually dealt in by whojpsale and retail grocers', in which, all the parties interested are the said A. B. and C. D., who are the general partners, and the said E. F. and L. M., who are the special partners; that the said E. F. has contributed, &c., \as in § 800 to the *.] Dated New York, Julv 1st, 1847. A. B. CD. iiO., (be. > The pTace where the baeinesB is to be earned on maybe inserted here, although the Batute does oot eeem to require it. , CHAPTER XXXn. PATENTS. PRACTICAL REMARKS. 1. Patents are granted to any person, or persons, for the term of fourteen years, for any new and useful ai't, machine, manufacture, oi composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter, not known or used by others, before his or their discovery or invention thereof and not, at the time of the application for a patent, in public use, or on sale, with his or their consent, or allowance, as the inventor or discoverer.' 2. A patent may also be granted, for the term of seven years, for a design for a manufacturer; or for a design for the printing of woolen, silk, cotton, or other fabrics ; or a design for a bust statute, or bas-relief, or composition in alto or basso-relievo ; or an impression or ornament to be placed on any article of manufacture ; or a pat- tern, or print, or picture, to be either worked into, or worked on, or printed, or painted, or cast, or otherwise fixed on any article of man- ufacture ; or a shape or configuration of any article of manufacture iioij before known or used by others. Such design, impression, or configuration, must be entirely new and original. A patent for a design, impression, or configuration, can issue only to a citizen, or to citizens, of the United States; or to an alien, or aliens, who shall have resided one year in the United States, and taken the oath of his or their intention to become a citizen, or citizens." 3. Where the term for which a patent is granted is fourteen years, it may be renewed for seven years, on apphcation, in writing, to the Commissioner of Patents, notice of which application must be pub- lished in one or more of the principal newspapers in Washington, and in such other papers published in the section of the country ' Laws of U. S., 1836. | ' Laws of U. S., 1842. PATENTS. 443 most interested, adversely to the extension, as the Commissioner may direct; and any person may appear and show cause against such extension, to the Board, composed of the Secretary of State, Com- missioner of Patents, and Solicitor of the Treasury, who are author- ized to decide the question. 4. The assignment of a patent may be to the whole, or to an un- divided part, by any instrument in writing. All assignments of pa- tents, or conveyances of the right to use the same, in any specified district, must be recorded in the patent office, within tliree months from the date of the same. 5. Before any inventor can receive a patent for any new invention . or discovery, he must deliver a written description of his invention or discovery, specifying the manner in which the same is made, or com- pounded ; the improvement therein which he claims as his own inven- tion or discovery; and the appUcation of the principle or character which distinguishes it from other inventions. The application must also be accompanied by duplicate drawings and written references, when the nature of the case will admit, wMch are to be signed by the patentee, and attested by two witnesses, except when the specification refers to them by letters or figures. A model, or a specimen of the ingredients and of the composition of matter, must also be dehvered at the patent office, or to one of the agents appointed to receive models, &c. 6. A caveat, setting forth the design and purposes of any inven- tion, may be filed in the patent office by any citizen ; or by an alien who shall have been a resident in the United States one year next preceding, and shall have made oath of his intention to become a citizen ; who shall have made any new invention, on paying the sum of twenty dollars, which will be deemed part of the reg-ular fee, if the patent is afterwards issued. If an appHcation be made, within one year after filing the caveat, for a patent for any invention which may interfere with that specified in the caveat, the Commissioner is required to give notice by mail to the person filing the same, who will be required to file his specifications, 18 , and that the annexed drawing [or, sketch] is, as he verily believes, a true delineation of the invention described in the said letters patent G. H., Justice, &c. CHAPTER XXXin, PENSION TOUCHERS. PRACTICAL REMARKS. 1. When application is made for the payment of a pension, the identity of the person must be established by afiSdavit, setting forth a copy of the original certificate, &c., as in the following forms. The deposition must be signed by the deponent, and where the pension has been increased since the certificate was given, the magistrate will note the fact. The requisite depositions may be taken before any of- ficer authorized to administer oaths. 2. Where a pension has remained unclaimed, by any pensioner, for the term of fourteen months after the same became due and payable application must be made to the Department of the Interior, at Wash- ington ; and in such case, additional proof of the identity of the ap- pUcant will be required. 3. All interlineations in pension-TOUchers should be carefully noted by the magistrate, before the execution. 4. When application for the payment of a pension is made by an attorney, he must deposit with the agent the power of attorney, duly acknowledged, and dated on or subsequent to the day on which the pension claimed became due, together with an affidavit made by him- self. 6. In all cases of payments upon a power of attorney, the Justice of the Peace, or Magistrate, before whom the power is executed, must have lodged with the agent, the certificate of the clerk of some court of record, under the seal of the court, that he is legally authorized to act as such, and, also, a paper bearing his proper signature, certified of be such, by the clerk of some court of record. 6. In case of the death of any pensioner, the arrears due to him at the time of his death, must be paid as follows : PENSION VOUCHERS. 453 r. To the widow of the deceased, or to her attorney, proving her- self to be such before a court of record ; or, II. If there be no widow, then to the executor or administrator on the estate of such pensioner, for the sole and exclusive benefit of the children, to be by him distributed among them in equal shares ; but the arrears of pension are not to be considered a part of the assets of the estate, nor as liable to be applied to the payment of the debts of such estate, in any case whatever. 7. In case of the death of a pensioner who is a widow, leaving chil dren, the amount of pension due at the time of her death, must be paid to the executor or administrator, for the benefit of her children, as directed in the foregoing paragraph. 8. In case of the death of a pensioner, whether male or female, leaving children, the amount of pension in arrear may be paid to_ any one, or each of them, as they may prefer, without the intervention of the administrator. If one of the children is selected to receive the amount due, he, or she, must produce a power of attorney from the others for that purpose, duly authenticated. , 9. If there be no widow, child, or children, then the amount due n pensioner, at the time of his death, must be paid to the legal repre- sentatives of the deceased. 10. Where an executor or administrator applies for the pension, due to a deceased person, he must deposit with the agent for paying pensions, a certificate of the Clerk of the Court, Judge of Probate, Register of Wills, Ordinary, or Surrogate, as the case may be, sti- ting that he is duly authorized to act in that capacity, on the estate <>*' the deceased pensioner, and, if a male, that it has been proved to his satisfaction that there is no widow of the said pensioner living. 11. The original certificate of pension must be surrendered at the time the moneys due a deceased pensioner are paid ; or, if such certifi- cate cannot be obtained for surrendry, substantial evidence of the "dentity, and that due search and inquiry have been made for the certificate, and that it cannot be found, must be produced. The date of the pensioner's death must be proved before a court of record. 12. Where facts are proved before the clerk of a court, his certi- ficate, stating the same, under his seal of office, must be obtained. 13. When the guardian of a pensioner applies for a pension, he iiust, in addition to the evidence of the pensioner's identity, deposit with the pension-agent a certificate from the proper authority, stating that he is, at that time, acting in that capacity, and also, satisfactory evidence that his ward was living at the date the pension claimed be- came due. 14 Pension agents are authorized tc administer all oaths required to be administered to pensioners or their attorneys, and to charge the same fees as magistrates are authorized to do by the laws of their re- spective States. ' ) Laws of n. S. 1810. *54 HEW CLEKK'S ASSISTANT. FORMS. § 821. Oath of Pensioner. State of ' I oa • County, ) Be it known, that before me, G. H., a Justice of the Peaee, in and for the county aforesaid, duly authorized by law to administer oaths, personally appeared A. B., and made oath, in due form of law, that he is the identical person named in an original certificate in his pos- session, of which (I certify) the following is a true copy ; [insert here a copy of the certificate of pension, including names and dates;'] that he now resides in , and has resided there for the space of years last past, and that previous thereto he resided in ;* and that he has not been employed, or paid, in the army, navy, or marine service of the United States, from the day ef , to .* Sworn and subscribed, this ) A- B. day of ,18 , before me, j G, H., Justice of the Peace.^ § 822. Certificate, where Pension has not been Brawn for Fourteen Moriths — to be Annexed to the Foregoing Deposition. State of , County, May 1st, 1849. I, G. H., a magistrate in the county above named, do hereby cer- tify, that I have the most satisfactory evidence, viz : [state what the evidence is, whether personal knowledge, or the affidavits of respect- able persoTis, giving their natnes:] that A. B., who has this day ap- peared before me to take the oath of identity, is the identical person named in the pension certificate, which he has exhibited before me, numbered , and beaiing date at the War Office, the day of , 18 , and signed by W. L. M., Secretary of War. Given under my hand, at , on the day and year above written. G. H., Justice of the Peaca 1 where the pension has been increased since the certiiicate was given, the magistrate must note tliat fact. In the case of a revolutionary pensioner, that part of § 821 between the two 's may be omitted. PENSION VOUCHERS. 455 § 823. Certificate of the Clerk, to Accompany § 822. Stateof New York, >^. County, \ I, W. B. , Clerk of the Court, of the county and State aforesaid, do hereby certify, that G. H. is a Justice of the Peace, in and for said county, duly commissioned and qualified ; that his com- mission was dated on the day of , 18 , dnd- will uxpire on the day of ,18 ; and that his signatm-e above written is genuine. C -] Given under my hand, and the seal of said county, this L'-^-l day of ,18 . W. B., Clerk. § 824. Power of Attorney, and Acknowledgment. Know all men by these presents : That I, A. B., of , a revolutionary [or, an invalid, as the case may ie,] pensioner of the United States, do hereby constitute and appoint E. F. my true and lawful attorney, for me, and in my name, to receive from the agent of the United States for paying pensions in Albany, State of New York, my pension from the day of , 18 , to the day of , 18 . Witness my hand and seal, this day of ,18 Sealed and dehvered in ) A. B. [l. s.] presence of ( CD. i.h State of County, Be it known, that on the day of ,18 , before the subscriber, a Justice of the Peace in and for said county, duly authorized by law to administer oaths, personally appeared A. B., above named, and acknowledged the foregoing power of attorney to be his act and deed. In testimony whereof, I have hereunto set' my hand, the day and year last above mentioned. G. H., Justice of the Peace. § 825. Oath of the Attorney. 8Uie of , ) . County, j ■ Be it known, that on the day of ,18 , before the subscriber, a Justice of the Peace in and for said county, duly au- thorized by law to administer oaths, personally appeared E. F., the attorney named in the foregoing power of attorney, and made oath 456 NEW CLERK'S ASSISTANT. that he has no interest whatever in the money he is authorized to re- ceive, by virtue of the foregoing power of attorney, either by any pledge, mortgage, sale, assignment, or transfer; and that he does not know or believe that the same has been so disposed of to any person whatever. Sworn and subscribed, the day and year ) E. F. last above mentioned, before me, J G. H., Justice of the Peace. § 826. Oath, of G^uardian for Pensioner, State of ' I • County, j Be it known, that before me, H. T. C, a Justice of the Peace in and for said county, duly authorized by law to administer oaths, per- sonally appeared Gr. H., guardian of A. B., and made oath, in due form of law, that the said A. B. is still living, and is the identical pereon named in the original certificate in his possession, of which (I certify) the following is a true copy : [insert here a copy of the cer- tificate of 'pension, inclvding names and dates i\ That he resides in , and has resided there for the space of years past, and that previous thereto he resided in Sworn and subscribed, tliis ) G. H., Guardian, day of , 18 , before me, j H. T. C, Justice of the Peace. § 827. Oath of a Widow, a Pensioner. State [or. Territory] of ' I ss • County of , ) ' Be it known, that before me, G. H., a Justice of the Peace, duly authorized by law to administer oaths, in and for the county afore- said, personally appeared M. B., and made oath, in due form of law, that she is the identical person named in an original certificate in her possession, of which (I certify) the following is a true copy : [laser/ here a copy of her certificate of pension, including names and dates:^ That she has not intermarried, but continues the widow of the above mentioned A. B. ; and that she now resides in , and has resided there for the space of years past; and that previous thereto she resided in ; of the truth of whioh statements I am fully satisfied. Sworn to and subscribed, this ) M. B. day of ,18 , before me, j G. H., Justice of the Peace. PEKSIOJSr VOUCHEES. 457 § 828. Oath of a Widow, who drew a Periston under the Act of March Zd, 1843. United States of America, State of County, Be it known, that before me, G. H., a Justice of the Peace, in and for the county aforesaid, duly authorized by law to administer oaths, personally appeared M. B., and made oath, in due form of law, that she is the identical person who drew a pension under the act of the 3d of March, 1843, on account of the revolutionary service of her husband, the late, \insert here the name and rank of the husband,^ at the rate of $ per annum ; that she now makes this affidavit for the purpose of drawing a pension under the act of Congress, passed on the l7th of June, 1844, entitled "An Act to continue the pensions of certain widows ; " that she has not intermarried, but con- tinues to be a widow ; that she now resides in , in the county of , and State of , and has resided there for the space of years past; and that previous thereto she resided in Sworn to and subscribed, this _ day ) M. B. of , 18 , in presence of >• R P. before me, ) G. H., Justice of the Peace. 8 829. Oaih of Identity for the Widow, or Child, of a Deceased Pensioner. State of 'Iss: County, j Be it, known, that before rae. G. H., a Justice of the Peace in and for the county afore-said, dulv authorized by law to administer oaths, personally appeared M. B., and made oath, in due form of law, that she \or, he] is the widow \or, son; or, daughter] of A. B., the iden- tical person who was a pen.sioner. and is now dead, and to whom a certificate of pension was issued, which is herewith surrendered : That the deceased pensioner resided in , m the State of , for the space of years bef«p« his death; and thai previous thereto he resided in .' Sworn and subscribed, this ) M B. day of , 18 , before me, \ G. H., Justice of the Peace. 1 Where the pension has been increasori, the magistrate should ,. itft tJ'f 'tv Vf? above form may be used for an executor or administrator, by sudsi.-utinj, tbe i:>r» erwtutor" .,r "administrator" for " widow." or "administrator T ^^^ IfEW CLERK'S ASSISTANT. § 830. Power of Attorney for the Widow, or Child, of a Deceased Pensioner.^ Know all men by these presents : That I, M. B., of , in the sounty of , State of , widow [or, chUd,] of A. B., who was a revolutiopaiy [or, an invalid] pensioner of the United States, do hereby constitute and appoint E. F., my true and lawful attorney, for me, and in my name, to receive from the agent of the United States for paying pensions in , State of , the balance of said pension from the day of ,18 , to the day cf , 18 , being the day of his death. Witness my hand and seal, this day of ,18 Sealed and delivered ) M. B. [t. s.] in presei ice of (" CD. § 831. Certificate of the Court as to the Death of a Pensioner. State of ' I • County of , j " I, W. B., Clerk of the Court of , holden at , in and for , do hereby certify, that satisfactory evidence has been exhibited to said court, that A. B. was a pensioner of the United States at the rate of dollars per ; was a resident of the county of , in the State of , and died in the , in the State of , in the year 18 , on the day of ; that he left a widow, \or, left no widow; or, left a chUd, or, left children,] whose name is [or, whose names are] M. B., [or, R. B., C. B., &c., &c.] [If the certificate has been lost, insert here, in addition: And that the pension certificate of said pensioner has been lost, and, after due search and inquiry therefor, it cannot be found.] In testimony whereof, I have hereunto set my hand and affixed r 1 my seal of office, at , this day of , ■- ■-' in the year of our' Lord 18 W. B., Clerk of the § 832. Oath where Pension Certificate is lllegaMy Withheld. State of ' I ss • County, J Be it known, that before me, G. H., a Justice of the Peace, in and for the county aforesaid, duly authorized by law to administer oaths. 1 For forms of acknowledgment, and attorney's oath, see §§ 824 and 82.^ Where one of the children is appointed by the others to receive the balance, the attorney's oath is nt^t required. PENSION VOUCHERS. 459 porsoiuilly iippcarcid A. B., and made oath, in due form of law, that he [or, she] is the identical A. B. named in an original pension certi- ficate now illegally withheld by, [here state the facts respecting the detention of the pension certificate;'] that he [or, she] is entitled to a pension of [insert the amount to which the pensioner is entitled at the time of making the oath,] dollars per month ; that he [or, she] now resides in , and has resided there for the space of , years past ; and that previous thereto, he [or, she] resided in Sworn and subscribed, this ) A. B. day of , 18 , before me, t G. H., Justice of the Peace. § 833. Certificate of Magistrate and Clerk, to Accompany § 832. State of , 1 County, [-ss: May 1st, 1849. ) Conformably to the regulations of the War Department of the 27th of October, 1832, I, G. H., a magistrate in the county above named, do hereby certify that I have the most satisfactory evidence, viz : [state what the evidence is; whether personal knowledge, or the affidaiuits of respectable persons, giving their names,] that A. B., who this day appeared before me to take the oath of identity, is the iden- tical pensioner he [or, she] declares himself [or, herself] to be, in the annexed affidavit; and I am also satisfied that the statement made by him [or, her] in relation to the pension certificate, is true. Given imder my hand, at , the day and year above written. G. H. I, W. B., Clerk of the Court of county, certify that G. H. is a magistrate, as above, and that the foregoing certifi- cate, purporting to be his, is genuine. In testimony whereof, I have hereunto affixed my seal of office, P -, and subscribed my name, this day ( f L ■ I in the year W. B., Clerk of the Court of county CHAPTER XXXIV. PLANK AND TUENPIKE EOADS. PRACTICAL REMARKS. 1. Any number of persons, not less than five, may form them- selves into a corporation for the purpose of constructing and owning a plank or turnpike road, under the Laws of the State of New York In order to form such a corporation, notice of the time and place or places, where books for subscribing to the stock of such road will be opened, must be given in at least one newspaper, printed in each county through which the road is to be constructed. When stock to the amount of five hundred dollars for each mile of the pro- posed road has been subscribed in good faith, the subscribers may choose directors and make and sign articles of association, which articles are to be filed in the office of the Secretary of State ; and thereupon the subscribers will become a body corporate, clothed with the powers and privileges, and subject to the liabilities of corpo- rations generally, as contained in titles three and four of chapter eighteen of the first part of the Revised Statutes, (volume I, 3d edition, pp. 713-736.)' 2. The articles of association are not to be filed till five per cent on the amount of stock subscribed shall have been, in good faith, paid in to the directors in "cash, to be verified by the affidavit of at least three of the directors. Copies of the articles, and of the affidavit indorsed, certified to be correfct by the Secretary of State, may 6e read in any state court as presumptive evidence of the incorporation of the Company, and of the facts therein stated. ■ Laws of 1847, chap. 210; Id., chap. 287 ; I Laws of 1849, chap. 250: Laws of 18sn Id., chap. 398; Laws of 1848, chap. 360; I chap. 71. ' f • " ioow, PLAKIC ROADS. 401 3. Whenever a plank or turnpike road company desires to con- struct a road through any part of any county, application must be made to the Board of Supervisors, notice of which must be pub- lished for six successive weeks, in all the newspapers printed in the county, or in three, if there be more than three. Special moedngs of the Board of Supervisors may be called to hear the application, any three of the members thereof fixing the time of the meeting. The expenses of a special meeting are to be paid by the Company, for whose benefit the same is called. Upon the hearing of the ap- pUcation, owners of land on the line of the proposed road, and aU persons residing in the county, may appear and be heard ; and testi- mony may be taken by the Board, or by any judicial officer autho- rized by it. If the Board are of opinion that the public interests wiU be promoted by the construction of the proposed road, they may, by a majority vote, authorize the same to be laid out and constructed. 4. Where a road is authorized to be constructed by a Board of Supervisors, they must appoint three disinterested persons, not the owners of real estate in any town through which the proposed road is to be constructed, or in any town adjoining such town, as Commis- sioners to lay out the same. The Commissioners are required to hear aU persons interested; at such time or times as they may ap- point, to take testimony, to determine the width of the road, and to make an actual survey and description thereof, as laid out by them. The survey is to be signed and acknowledged in the same manner as conveyances of real estate, and recorded in the Clerk's office of the county. Where a road is proposed to be constructed in more than one county, Comnussioners are to be appointed in each county. Each Commissioner is entitled to receive two dollars per day for liis fees, to be paid by the Company. 5. No plank or turnpike road can be laid out through an orchard of the growth of four years or more, to the injury of fruit trees, or through a garden cultivated four years or more, unless with the con- sent of the owner of such orchard or garden; nor can any such road be laid out through any dwelling-house, or building con- nected therewith, or any yard, or inclosure properly appui-tenant thereto, without the consent of the owner; neither can a plank oi turnpike road company, bridge any stream navigable by vessels or steamboats, or in any manner so as to obstruct the passage of rafts twenty-five feet in width. ■6. Where the route of a plank or turnpike road has been laid out and surveyed by Commissioners, the Company may enter upon and take possession of the lands described in the survey, provided the same be purchased of the owners thereof But if, on account of the ina- bility or unwillingness of the owners to sell or convey, the right to such lands cannot be acquired, application must be made to the County Judge, by whom a jury will be drawn to hear the parties ' ^62 KEW CLERK'S ASSISTANT. interested, take tdstimony, and ascertain and assess the damages. The verdict of the jury will be final, unless applicatien be made within twenty days to the Supreme Court for a new trial, and un- less such application be granted. 7 Lands may be obtained by a plank or turnpike road company, for the construction of a road, by purchase of the owner or owners, and in such case no application to the Board of Supervisors will be necessary. An accurate survey must be made by a practical sur- veyor, signed by the President and Secretary of the Company, acknowledged by them, and recorded in the County Clerk's office. 8. Where it is desired to construct a plank or turnpike road on the line of a public highway, the Supervisor and Commissioners of Highways of any town, or a majority of them, if there be more than one Commissioner, may, with the consent in writing of at least two- thirds of all the owners of land along such highway, actually residing on the line of the proposed road and on such highway,, agree with the Company upon the compensation and damages. This agree- ment must be in writing, and must be filed in the office of the Town Clerk. In case such agreement be entered into, and an accurate survey be made, signed, acknowledged, and recorded, no application to the Board of Supervisors will be necessary ; otherwise, the dama- ges must be ascertained by a jury to be called by the County Judge; and if the Supervisor and Commissioners refuse to give their con- sent to the construction of the proposed road, application must be made to the Board of Supervisors for their assent Moneys received by Commissioners of Highways for compensation and damages, must be expended in improving the highways in their respective towns. 9. Three inspectors of plank and turnpike roads are to be ap- pointed by the Board of Supervisors in each county in which any such roads may be constructed. They hold their offices during the pleasure of the Board, and are allowed two dollars per day for their services, to be paid by the Company whose road they may inspect 10. Plank and turnpike roads are not to exceed four rods in width, except with the consent, of the owners of adjoining lands ; and the Commissioners, or Inspectors, may fix the width at four rods, or less than that if they choose so to do. 11. Whenever a plank or turnpike road Company has constructed three consecutive miles of their proposed road, they may apply to the Inspectors, or a majority of them, to inspect the road ; and if such inspectors, or a majority of them, certify that a sufficient num- ber of miles of road have been constructed according to law, upon filing their certificate, the Company will be authorized to take toU. Toll gates, however, are not to be erected within three miles of each other, on the same road. 12. The rates of toll on plank roads are not to excee^ one and a half cents per mile, for vehicles drawn by two animals — one-half cent PLANK ROADS. 463 per mile to be added for each additional animal more than two ; tliree-quarters of ■ a cent per mile, for every vehicle drawn hj one inimal ; or half a cent per mile, for eveiy score of sheep or swine, and for every horse and rider, or led horse. Turnpike companies may collect three-quarters of a cent per mile, for every vehicle drawn by one animal ; one and one-quarter cent per mile, for every vehicle drawn by two animals — one-quarter cent per mile to be added for every animal more tlian two ; one cent per mile, for every score of neat cattle ; and one-half cent per mile, for every score of sheep or swine. Rates of toUs may be determined by the distance between toll gates, instead of the distance actually traveled, except that where persons reside within one mile of a gate, only half tolls are to be exacted from them at such gate.' 13. Persons going to or from any court to which they have been summoned as jurors, or subpoenfed as witnesses ; going to or from any training at which they are by law required to attend ; going to or from religious meeting's; going to or from any funeral, or belong- ing to a funeral procession ; or going to any town meeting or election at which they are entitled to vote, for the purpose of voting, and returning therefrom ; are exempt from the payment of tolls at the gates of plank road companies. Farmers going to or returning from their work on their farms, when not employed in the transportation of other persons or their property, and troops in the actual service of the State, or of the United States, are also exempt from tolls on plank roads. Persons going to or returning from any grist mill or blacksmith's shop, where they ordinarily get their grinding or black- smith's work done, for the express purpose of getting grinding or blacksmith's work done, are exempt from the payment of toll at one gate only, within five miles of their residence, pro^^ded the plank road be constructed on a public traveled highway. 14. The business and property of a plank or turnpike road com- pany must be managed and conducted by a Board of Directors, ■ consisting of not less than five, nor more than nine, who are to be elected annually, after the first year, at such time and place as may be designated in the by-laws of the corporation. Vacancies are to be filled by the remaining directors, for the remainder of the year. 15.' It is the duty of the directors of every plank or turnpike road company, to make an annual report to the Secretary of State, under the oath of at least two of tlie directors, stating the cost of their road; the amount of their capital stock; the amount expended; the amount paid in ; the whole amount and the annual amount of tolls and earn- ings, in separate items ; the amount set apart tor a reparation fund ; and the amount of indebtedness of the company, with the object for which it accrued. < 1 Caines' 182 ; 23 Wendell, 193. 464 NEW CLEEK'S ASSISTANT. 16. Branches may be constructed by plank road companies, •with the written consent of a majority of the inspectors; and the capital stock may be increased, for that pxirpose, not exceeding two thou- sand dollars for each mile of additional road. 17. The inhabitants of any road district in the State may grade, gravel, or plank, the road cv roads in such district, by anticipating the highway labor of such road district, for one or more years, and applying it to the immediate construction of such plank or gravel road; and they will thereupon be exempt from the labor so antici- pated, except so far as their labor may be required to keep such road or roads m repair. Any road so constructed will be a free road. FOEMS. § 834. Notice of Subseription. PLANK ROAD NOTICE. Notice is hereby given, that books of Subscription to the capital stock of a company proposed to be incorporated for the construc- tion of a plank [or, turnpike] road from to , to be called " The Road Company," will be opened at the house of 0. P., in the city of , on the day of , 18 , and that such books wiU remain open at the said place until the whole amount of the capital stock shall be subscribed. Dated ,18 . § 835. Articles of Association for the Formaiion of a Plank Road Company. Articles of Association made and entered into this day of , by and between the persons whose names M:e hereunto subscribed; Witnesseth: First — That we, the undersigned, do hereby form ourselves into a Corporation, for the purpose of constructing and owning a Plank Road from to , wholly within the county of , \or, counties of , and ] and State of New York. Second — The name of such Corporation shall be , and the same shall continue years from the day of the date of these articles. PLANK ROADS. 465 Third — The capital stock of said Corporation sTiall be dollars, and shall be divided into shares, of dol- lars each. Fourth — There shall bb Directors of said Company, and A. B., C. D., &c., of tfie town of , Where a special meeting ie called to hear an application, eath member of the Board moar be notJhEied of the time and place of such meeting, at the expense of the Company; PLANK ROADS. 46"? of the said party of the first part, for the purpose of laying, con- structing, and using such plank road. Said road is to be laid out, constructed and used on the Jine of the highway, [or, as the case may Je,] leading from to , and to be not exceeding four rods in width, including the line and width of the present high- way. The route hereby mtended to be conveyed, begins at the north line of lands now owned by and occupied by , and runs thence northerly to the south line of land owned by and occupied by , in s■ R P. \ § 840. Consent of IiihabitatUs. We, the undersigned, owners of land along the highway leading from to , and residing on said highway, do hereby give our consent to the construction of a plank [or, turnpike] road on the line of said highway from to aforesaid, Witness our hands this day of , 18 . A. B. § 841. Release of Right of Way, by Supervisor and Commissioners. This Agreement, made this day of , between G. H., Supervisor of the town of , in the county of , and A, B., C. D., and E. F., Commissioners of Highways of said town, of the first part, and the Plank Boad Company oi the second part, Witnesseth : That the said parties of fjie first part do hereby sell and convey unto the said party of the second part, in consideration of dollars to them in hand paid, by the said party of the second part, the receipt whereof is hereby acknow- ledged, the right to use and occupy the highway, &c., [dsscribe the roiUe,"] for the purpose of constructing, owning and uang a Plank Boad thereon, during the time it shall be needed, or required, there- for by the said Company. Witness our hands, as such Supervisor and Commissioners of the town aforesaid, the day and year first above written. Signed in presence of ) Q. H., Supervisor. R. F, ) A B., ^ " CD., Commissioners of Highways of' the. E. F., Town of 468 NEW CLERK'S ASSISTANT. § 842. Achiowledgment of a Survey. State of New York, ) County,, P^ ' On this day of , 18 , before me, personally appeared A. B., C. D., and E. F., Commissioners appointed by the Board of Supervisors of the county of , to lay out a road, to be constructed by the Company, from to , [or, A. B. and C. D., the President and Secretary, respectively, of the Company,] and severally acknowledged that their signatures to the foregoing [or, within] survey of the said road, were true and genuine. Gr. H., County Judge! [Or any officer, authorised to take acknOwled^Trimts.^y ^ § 84:3. Ifoiiee to Pay in Installment. OfiBoe of the Koad Company, ^ July ,18 . ) Sir: . • By order of the Board of Directors of the Road Company, you are required to pay in to the Treasurer, at his ofiSce in , a second installment of per cent on your stock, on or before the ' day of , 18 . Yours, &o., S. G., Secretary. To Mr. A. R § 844. Proxy. [J'or Proxy, Oaths, and Affidavits, Power to receive Dividends, and other forms uied by Corporations or Stockholders, see Chapter VIL] ■ § 845. Notice of Drawing Jwry to Assess Damages. Office of the Company, ) July ,18 . ( To Mr. A. B. : Please take notice; That on the day of ,18 , at 10 o'clock A. M„Hon.J.'P.H., County Judgfr of . county,' wili ' For other forms, where the signatures are prored by a subscribing witnen, or the partin ne not knovniito the officer, see Qliap. I. PLANK ROADS. ' *o» attend a drawing from the grand jury-box of county, at the office of the County Clerk, in the city of Auburn, said drawing to be made by E. B. C, County Clerk of Cayuga county, pursuant to an order of said Judge, of twenty-four competent and disinterested Jurors, and as many more as said Judge shall direct, to ascertain the compensation and damages of each person owning land on or ad- joining the line of the road, running through the town of , in said county, on the straight road (so called) from to , between the north Une of said town and the house of C. D, ; said road being of the width of four rods, as surveyed by G. H., and located by L. M., S. T^ and V- W., Gomnjisicmers duly appomted by the Board of Supervisors of coimty for such purpose ; and also to ascertain the compensation and damages of the town of , for taking said road to construct a plaik toad thereon, [or, of the " persons owning land on the line of the said proposed road.'] By order of the Board of Directors. S. G., Secretaiy § 846. Notice of Meeting of Jvry. bhe July , 18 Office of the Company, ) ToMr. A.B. : Please take notice, That a jury drawn in pursuance of the Statute in such case made and provided, to ascertain the compensation and damages of the several owners of land on the line of the road, between the north line of the town of , and the house of C. D., on the line of the present highway, called the straight road, and being of the width of four rods, and also to ascertain the compen- sation and damages of the town of for the same, will meet^ pursuant to an order made by Hon. J. P. H., County Judge of county, at on the day of ,18 , at o'clock in the noon, to ascertain such damages and compensa- tion. By order of the Board of Directors. S. O., Secretaiy 1 If the jury are to asaess the damages both cf the town and private indiTiduals, it ehould be mentioned in thejiotice. CHAPTER XXXV. POOE LAWS. FBAOTICAL REMAKES. 1. The father, mother, and children, who are of sufficient ability, of any poor person who is blind, old, lame, impotent, or decrepit, so as to be unable to maintain himself, must, at their own charge, re- lieve and maintain such poor person, in such manner as shall be ap- proved by the Overseers of the Poor of the town; and upon the failure so to do, such Overseers may apply to the Court of Sessions of the county, to compel such reUef 2. Whenever the father, or mother, being a widow, or living sepa- rate from her husband, shall abscond from their children, or a hus- band from his wife, leaving any of them chargeable, or likely to be- come chargeable, upon the public, for support, the Overseers of the Poor may apply to any two Justices of the Peace of any county in which any estate, real or personal, of the said father, mother, or hus- band, may be situated, for a warrant to seize the same. In those counties where all the Poor are a charge upon the county, the Su- perintendents of the Poor have the same powers as Overseers of the Poor in respect to compelling relatives to maintain paupers, and the seizure of the properly of any parent absconding and abandoning his family.^ 3. Every person who is blind, lame, old, sick, impotent, or decre- pit, or, in any other way disabled, or enfeebled, so as to be unable by his work to maintain himself, must bo maintdned by the county or town in which he may be.^ • 1 R. S. (3d 6cl.,)78a, S 1. et soq.; 7 Cowen, I » 1 R. S. Od ed.,)7S3, 58, et sen. : Id.,7dt 235. Ul3j 21 Wendell, 181. >1 R. S. (3d ed.,} 784, J 14. POOE LAWS. 471 4. Three County Superintendents of the Poor are chosen at the 9)nnual November election, in each county in this State, except the city and county of New York, — one Superintendent being annually elected, — to serve for three years from the first day of January next after such election. The Board of Supervisors of any county may, however, at any annual meeting, direct only one Superintendent to be elected, who will hold his office for three years.' 5. Every person elected to the office of County Superintendent of the Poor, must, before the first day of January succeeding his elec- tion, take tjie oath of office, and execute a bond, conditioned as in § 847, to the Supervisors of the county, in such penalty, and with two or more sufficient sureties, as the board may direct and approve. The bond, with the approbation of the board indorsed by their clerk, is to be filed in the office of the County Clerk. In the recess of the board, the sureties may be approved by the County Clerk' 6. The County Superintendents constitute a corporation, by the name of the Superintendents of the Poor of the county in and foi which they are so elected, and have the general supervision and con- trol of the relief and support of the poor in such county. They are authorized to audit and settle all accounts, and to draw from time to time on the County Treasurer for all necessary expenses incurred in the discharge of their duties, and are required to account therefor, to the Board of Supervisors at their annual meeting.' 7. It is the duty of the Superintendents of the Poor of each county, during' the month of December in each year, to report to the Secretary of State, the number of paupers relieved, or supported, in such county, the preceding year, with the sex, and native country, of each pauper, and the expense of their support or maintenance.* 8. In those counties where all the poor are not a county charge, the Supervisors of the respective towns are required to report to the Clerk of the Board of Supervisors, within fifteen days after the accounts of the Overseers have been settled by the Board of Town Auditors, an abstract of all such accounts. These abstract& are to be delivered by the Clerk of the Board of Supervisors to the County Superintendents, to be included by them in their report to the Secre- tary of State.' 9. Every person of full age, who has been a resident and inhabi- tant of any town, for one year, and the members of his family who have not gained a separate settlement, will be deemed setfled in such town, so far as the provisions of law relative to the support of the poor are concerned.* 1 Laws of 19tr, chap. 493 ; Laws of 1849, 1 292 j 10 Wend., 612 ; 4 HiII.553 : 8 Paige ,409. chap. 1 16. < 1 R. S. (3d ed.,) 798, (. SI ; Laws uf 1842, > Laws of 1818, chap. 327 ; Laws of 1850, chap. 214 ; Laws of 1349, chap. 100. chap. 12. > IR. S. (3ded.,)799, IS83, S6. « 1 R. S. (3d ed.,) 785, 5 18, el ceq ; Laws • 1 R S. (3J ed.,) 788, « 33 ■ Lawn of 1830 •r 1831, chap. 277: Laws of 1832, chap. i&, chap. 320.' -172 ifEW CLERK'S ASSISTANT. 10. The electors of each town in this State, except in the counties of Montgomery, Kings and New York, have the power at their annual town meeting, to determine whether they will choose one or two Overseers of the Poor, and the number determined upon wfill be the number to be elected. Such overseers have the discretionary right to expend a sum not exceeding ten dollars, for the relief of one poor person or family, without any order from a Justice of the Peace there- for.' 11. The Overseers of the Poor in the several towns in the county of Livingston, may relieve poor persons within their respective towns, previous to their removal to the county house, but at the expense of such towns. The names of the persons so relieved must be entered in a book, which is to be laid before the Town Auditors at the time of auditing the accounts of such Overseers. The foregoing provisions may be extended to any county in the State, provided the Board of Supervisors, by resolution, declare their intention to adopt them." 12. It is not lawful for any oificer whose duty it is to provide for the maintenance, care, or support, of indigent persons, at public ex- pense, to put up at auction the keeping, care, and maintenance; of such person, to the lowest bidder ; and any contract so made with a bidder will be absolutely void.' 13. All idle persons, who, not having any visible means. to main- tain themselves, live without employment; all persons wandering abroad, and lodging in taverns, groceries, beer-houses, out-houses, market places, sheds, or bams, and not giving a good account of themselves ; all persons wandering abroad and begging, or who go about from door to door, or place themselves in the streets, highways, passages, or other public places, to beg or receive alms, are to be deemed vagTants, and may be taken before a magistrate, to be com- mitted to the county poor house, if proper objects for relief ; or, if otherwise, to the county jail. Children found begging are to be sent to the poor house, and may be bound out by the Superinten- dents, or Overseers of the poor, or Commissioners of the Alms house.* 14. If the committee, or the relatives of a lunatic or mad person, refuse or neglect to confine and maintain such person, the Overseers of the Poor may apply to any two Justices of the Peace of the city, or town, where such lunatic shall be found, for a warrant to appre- hend and confine such person.' 15. Overseers of the Poor may designate and describe any person whom they discover to be a habitual drunkard, in writing, and by written notice require every person dealing in spuituous Uquors or ' Laws of 184.", chap. 180. I » Laws of 1848. chap. 176. > Laws rf IS-IS, chap. 334 ; Laws of 1846, ! « 1 R. £ (3d ed.,) 802, S 1, et aeq. chap. 245 I M R. S. (3d ed ,) 805, § !, et acq. POOR LAWS. 473 any other person, not to give or sell spirituous liquors to such drunk- ard' 16. If any woman be delivered of a bastard child, which shall he ' chargeable, or likely to become chargeable, to any county, city, «• town ; or be pregnant of a child hkely to be born a bastard, and tp become so chargeable, the Superintendents of the Poor of the county, or any of them, or the Overseers of the Poor of the town, or any ot. them, are required to apply to some Justice of the Peace, to inquire into the facts and circumstances of the case. Superintendents of the Poor may compromise with, and discharge, putative fathers of bas» tards, upon such terms as they may think to be just When any such compromise is made, the mother may receive the money, on giving security for the maintenance of the child.' FORMS § 847. Bond of County Superintendent. Know all men by these presents : That we, G. H., C. D., and E. F.. of, &c., are held and firmly bound unto the Supervisors of the county of , State of , in the penal sum of dollars, to be paid to the said Supervisors, for which payment well and truly to be made, we bind ourselves, our, and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , A. D. 18 . Whereas, the above bounden G. H. has been duly elected to the office of County Superintendent of the Poor for the county of , aforesaid, to serve for the term of three years from the first day of January, A. D. 18 : Now, therefore, if the said G. H. shall faithfully execute the duties of his office, and shall pay, according to law, all moneys which shall come to his hands, as Superintendent of the Poor, and render a just and true account thereof to the Board of Supervisors, then the above obligation to be void; else to remain in full force. Signed and sealed in 1 G. H. [l. s.' presence of >■ C. D. fi- s.' AM. ) E. F. [l. 8.] The sureties in the above bond were duly approved by the Board of Supervisors, this day of , 18 . D. M, Clerk of the Board, ■ 1 K. .j. (3d ed.,) 817, § 1, et seq. I chap. 26 ; Laws of 1S38, chap. 202 ; 10 John • 1 R. S. l3d ed.,) 823, J 6; Laws of 1832, | son, 93 ; 3 Uilt, 116. ■*'74 NEW CLERK'S ASSISTANT. § 848. AppliccUion to Compel a Person to support a Poor Helative. To the Court of Sessions of the County of : * The application of the undersigned, E. F., Overseer of the Poor of the town of , in said county, respectfully represents : That A. B., a poor person, who is blind, [or, lame, old, impotent, or decrepit^ as the case may 4e,] so as to be unable by work to maintain himself, \or, herself,] is in the said town ; that C. B., who resides at ' , in the said county, is the father of the said A. B., and has failed, at his own charge, to reheve and maintain the said A. B. in such man- ner as has been approved by the undersigned: Wherefore, pursuant to the provisions of section 2, title 1, chapter 20, part 1, of the Re- vised Statutes of the State of New York, the undersigned hereby ap- plies for an order to compel the said C. B., who is of suflScient ability, to relieve and maintain the said A. B., in the manner to be in such order specified. Dated at the town of , this day of , 18 . E. F., Overseer of the Poor. § 849. Notice to Accompany the Foregoing Application.i ToC. B.: You will take notice, that on the day of , at ten o'clock in the forenoon, or as soon thereafter as a hearing can be had, the undersigned. Overseer of the Poor of the town of , wil'. apply to the Court of Sessions of the county of , at the court house in the town of , in said county, for an order to compel the relief applied for by the application, which will, at the time and place above mentioned, be presented to the said court, and of which the annexed is a copy. Dated at , this day of , 18 . E. F., Overseer of the Poor. § 850. Affidavit of Service. County, ss: E. F., of the town of , in said county, being duly sworn, says, that on the day of , he served a copy of the annexed notice and application, on C. B., therein named, by deliver- ing the same to him, [or, by leaving the same at his last place of resi- dence, with O. P., a person of mature age.] Sworn to, before me, this ) E. F. day of , 18 . f G. H., Justice, &c. 1 A copy of the appIicatioQ with the above notice, should be personally served on the parson to whom it is directed, or be lefl at his last place of residence with some person of mature age. It will be borne in mind, that in those counties where all the poor are a county charge, the application, (§ S18,} should be made by a County Superintendent and tlie forms (xom § 843 to §854, may be varied for the purpose. POOR LAWS. 475 § Sll. Warrant to Seise the Goods of an Absconding Father, Husband, or Mother. County, ss: To E. F., Overseer of the Poor of the Town of , in sdd county : It appearing to us,, two of the Justices of the Peace of said coun- ty, as well by the application and representation to us made by you, the said Overseer, as upon due proof of the facts before us made, that A. B., late of said town, has absconded from his wife and chil- dren, leaving the said wife and children chargeable [or, likely to be- come chargeable] to the public for support ; and that the said A. B. has some estate, real or personal, in said county, whereby the public may be wholly or in part indemnified against said charge : We there- fore authorize you, the said Overseer of the Poor, to take and seize the goods, chattels, effects, things in action, and the lands and tene- ments of the said A. B., wherever the same may be found in said county : And you will, immediately upon such seizure, make an inven- tory of the property by you taken, and return the same, together with your proceedings, to the next Court of Sessions of said county. Given under our hands, in the town of , this day § 852. Return of Overseer to the Foregoing Warrant County, ss. : To the Court of Sessions of said County : The undersigned, to whom the annexed warrant is addressed, on the day of , 18 , in the county of , therein mentioned, seized, by virtue of the said- warrant, the property of which an inventory is hereunto annexed; and the proceedings of the undersigned, subsequent to the said seizure, are as follows : [state the proceedings particularly. '\ All which is herewith respectfully re- turned. Dated, kc, [as in § 848.J § 853. Bond to be Qiven by Party where Property has been Seizedi Enow all men by these presents : That we, A. B. and L. M., both^ of the town of , in the county of , are held and 1 Upon iha ezecution of the bond and approval of the iecurity, by any two Justices of the town, the warrant must be discharged, and the property restored. ^^e NEW CLERK'S ASSISTANT. firmly bound unto E. F., Overseer of the Poor of the town of , in the sum of dollars, for the payment whereof to the said Overseer, or his successor in ofiSce, we bind ourselves, our heirs, ex- ecutors and administrators, jointly and severally,, firmly by these presents. Sealed with our seals, and dated at j this day of , 18 . The condition of this obligation is such, that whereas the said Over- seer of the Poor lately seized , the property of the said A. B., under a warrant issued by G. H. and S. T., two Justices of the Peace of the county of , upon due proof to them given, that the said A. B. had absconded from his wife and children, leaving them chargeable [or, likely to become chargeable] upon the public for support ; and the said A. B. having returned, and, being desirous of having his property so taken restored to him : Now, therefore, if the said wife and children so abandoned shall not become chargeable either to said town or county, then this obligation is to be void ; otherwise of force. Sealed and delivered, and the security 1 A. B. [h. s.] approved, by and before us, two. of > C. D. [l. s.J the Justices of the town of . ) g' m"' t Justices. § 854. Order to Discharge the Warrant, and to Restore Property. County, ss: To E. F., Overseer of the Poor of the Town of , in said county : Whereas, by a warrant to you directed, bearing date the : day of ,18 , you were authorized to seize the goods,. chattels, effects, things in action, and the lands and tenements, of A. B., upon, proof that he had absconded from his wife and children, leaving them chargeable to the public for support : And whereas, the said A. B. has returned, and now supports his wife and children so adandoned, \or, has given security to the Overseer of the Poor, satisfactory fo ■ us, that his said wife and children shall not become chargeable either to said town or county :] We do, therefore, hereby discharge the said warrant issued against the said A. B., and direct the property taken by virtue thereof to be restored to him. Given, &c., [cw in § 851.] POOR LAWS. 477 I 855. Notice from one Town to another,, in a C aunty where the Towns are Liahle to Support their own Poor, requiring the Overseer of the Town in which the Pauper has a Hesidence, to Provide for his Support} County, ss: To E. F., Overseer of the Poor of the Town of .in said county : •You are hereby notified, that A. B,, a pauper, who has gained, a settlement in your town, to which he belongs, is in the town of , in said county, and is- supported at the expense of the said town of , for which the undersigned is Overseer: iiou are there- fore requii-ed to provide for the relief xmd support ot UiRsaid pauper. Bated at , this day of , 18 . R R, Overseer of the Poor of the Town of § 856. Notice that the Allegaiion of Settlement uiil h* Contested. County, ss: To R. F., Overseer of the Poor of the town of ., in said county : ' Tou will take notice, tha,t the undersigned. Overseer of the Poor of the town of , in said county, will appear before th'e Su- perintendents of the Poor of the said county, at the poor house, [or, as the case may Je,] on the day of , at ten o'clock in the forenoon, to contest the alledged settlement of A. B., a pauper; as set forth in your notice of the instant myi !., [« Dated, &c., [as in § 849.] § 857. Subpoena of the Superintendents. County, ss: The People of the State of New York, to C. D. : You are hereby required personally to appear before the under- signed. Superintendents of the Poor of the said county, at the poor house, [or, such place as is designated in the notice,^ on the daj of ,18 , at ten o'clock in the forenoon, to testify in behalf of the Overseer of the Poor of the town of , in said county, concerning the alledged settlement of A. B., a pauper. Given under our hands, tms day of , 18 . T ■ W' I Superintendents of Ac, &c. ) ^^^ P""'"- 1 This notice shoutd be Berred on the Overseer by some person who can make oath to such eeirice, if the same should become necessary. If the Overseer on whom the notice is served desires to contest the settlement, he must, within ten days after such service, give notice to the other Overseer to appear before the Superintendents, in not less than ten and not more than thirty days from the service of such notice, and contest the settlement. The Superin* tondents are auihorleed to issue subpcenas, and to compel the attendance of witnesses on ih« hearing. 478 NEW CLERK'S ASSISTANT. § 858. Superintendents' Decision.' County, ss : We, the undersigned. Superintendents of the Poor of said county, having convened, as required by the Overseer of the Poor of the . town of , in said county, pursuant to notice, to hear and de- termine a controversy which had arisen between the said Overseer, and the Overseer of the town of , in said county, concerning the settlement of A. B., a pauper, do hereby decide, upon such hear- ing, as aforesaid, that the legal settlement of the said A. B., as such pauper, is [or, is not] in the said town of . And the under- signed hereby award to the Overseer of the Poor of the town of , the prevailing party, the sum of dollars, costs of said proceeding, by him expended. Given, &c., \as in § 857.] § 859. Superintendents' Notice that Pauper will be supported at the Expense of a Town, in a County where the Towns Supi port their own Poor.* County, ss : To E. F., Overseer of the Poor of the town of , in said county : A. B. a pauper, having been sent to the poor house as a county pauper, and the undersigned, Superintendents of the Poor of said county, having inquired into the fact, and being of Opinion that the said pauper has a legal settlement in the town of , in said county, pursuant to the provisions of Section 35, of title 1, of Chap- ter 20, of Part 1, of the Ke vised Statutes of New York, you are here^ by notified, that the expenses of the support of said pauper will be charged to the town of ,■ unless you, the Overseer of said town, within \in,sert the time, to he not less than twenty days'] after the ser- vice of this notice, show that the said town of ought not to be so charged. Given, &c., [as in § 857.] 1 The decision is to be entered $■ the book of the Superintendents, and a duplicate thereof filed in the office of the County Gierlc, within thirty days; such decision will be final and eonclnsiTe in the premises. The costs awarded cannot exceed ten dollars. ■ This notice is to be given within thirty days after the pauper shall hare been received; On the application of the Orerseer, the Superintendents may re-ezamlne the matted and take testimony, and make a final decoislon therein. POOR LAWS. 479 § 860. Decision of Superintendents, after He-examining Settlement of Pauper, on Application of the Overseer — to be entered and filed in the same manner as § 858. County, ss: We, the undersigned, Superintendents of the Poor of the said county, having, on the application of the Overseer of the Poor of the town of ., re-examined the subject matter of a notice duly served on him, of which the annexed is a copy, and taken testimony in relation thereto, do hereby decide that A. B., the pauper therein mentioned, has a legal settlement in the said town of , to which^ as such pauper, he belongs^ [or, has not a legal settlement in said town of .] Given, &c., [as in § 857.] § 861. Certifieaie of a Superintendent that a Person is a County Pauper, on the Application of the Overseer of a Town. Coimty, ss: The Overseer of the Poor of the Town of , having given notice to the undersigned, that A. B., a poor person, being in said town, should be supported as a county pauper ; I do hereby certify, {hat I have inquired into the circumstances, and am satisfied that the said pauper has not gained a legal settlement in any town in said county, and that the said A B. is chargeable to the said county. Dated at , this day of , 18 . Q. H., Superintendent of the Poor. § 862. Notice of Bearing on the Foregoing Certificate, lefore the Board^ County, ss: To E. F., Overseer of the Poor of the Town of , in said county : You are hereby notified, that on the day of , at ten o'clock in the forenoon of that day, the board of Superintendents of the Poor of said county will proceed to a hearing of the .allegalions and proofs which may be then presented in relation to the legal set- tlement of A B., in tiie town of ' ; and after such hearing. 1 Every case in which a certi6cate is granted must be reported to the board, who may, at Iheir nejt meeting, atfiim or annul it. Notice of tlie hearing should be serveil onihe Oyer- seer not less than twenty days previous thereto ; and the final decision of the Superintendents IB to be entered and filed as specified in the note to i B58. 480 HEW CLERK'S ASSISTANT. will aflSrm or animl the certificate given by G. H., one of the under- Hgned, onthe day of ,18 , declaring that the said A. B. was chargeable upon the county. Given, &c., [as m § 857.] § 863.' Decision of the Board of County Superintendents. County, ss: ., G. H., one of the Superintendents of the Poor of said county* having reported to the Board of County Superintendents of the Poor for said county, the case mentioned in the certificate, a duplicate \pr, copy] whereof is hereunto annexed) the said board, after due notice given to the Overseer of the Poor of the town of , in said county, and after hearing the allegations and proofs in the premises, do hereby annul [or, afilrm] the said, certificate, and decide that the legal settlement of A. B., named therein, is in the town of in said county. Given, &&, \as im § 857.] § 864. Decision ly the Board of Superintendents, upon the Refu- sal of the Svperintendent to give the Certificate. County, ss: Notice having been given by the Overseer of the Poor of the town of , in said county, to G. H., one of the Superintend- ents of the Poor of the said county, that A. B., a poor person, being in said town, should be supported as a county pauper, arid the said Superintendent having refused \or, neglected] to give the certificate prescribed by Section 36, Title 1, Chapter 20, Part 1, of the Revised Statutes, of the State of New York, and the undersigned, constitu- ting the Board of County Superintendents of the poor for said coun- ty,' having, on the application of the said Overseer, summarily heard the matter, do hereby determine and decide that the said pauper has not gained a legaJ settlement in any town of the said county* and should be supported as a county pauper, \pr, has gained a legaj settlement in the town of , in said county:] And we dg hereby award to the Overseer of the town of , the sum of , [not exceeding ten dollars^ costs of said proceeding, by him in this behalf expended Given, &c., [os m § 857.] POOR LAWS. 481 § 865. Order of the Overseer of a Town to Remove a Poor Per- son to the County Poor Home. County, ss: A. B. having applied for relief to me, the undersigned. Overseer of the Poor of the town of , in said cc.anty, I have inquired into his \or, her] state and circumstances, and it appearing that he \or, she] is in such indigent circumstances as to require permanent relief and support, and can be safely removed, I hereby order him [or, her] to be removed to the county house, to be relieved f>nd pro- vided for, as his \or, her] necessities may require, at the expense of said county, \or, town.] Dated, &c., \as in § 849.] § 866. Certificate of the Keeper of the Poor House, for the Ex- pense of Removing a Pauper. t2. Treasurer ot Treasurer of County ; Couaty : This certifies thai G. D.,ia entitled to two dollars. Fay G. D. two dollars and and cents, at the rale prescribed by the Superinten- cents for transporting dents, for transporting A. B. from the town of A. B., from to the to county poor house, being miles. county poor house. , May , 18 . , May , 18 . C. D., Keeper, No. Countersigned, L M ( ^^P'"- No. . ! § Se'r. Superintendent's Order to Expend over Ten Dollars. E. F., Overseer of the Poor of the town of , in said county, having applied to me for an order authorizing the expenditure of a greater sum than ten dollars for the relief of A. B., I have inquired into the facts of the case ; and being satisfied that the said A, B. cannot properly be removed to the county poor house, and that he is in need of further relief, I do hereby direct the continuance of the weekly allowance of dollars, until the expenditure amount to dollars over and above the sum of ten dollars. Dated, &c., [as in § 861.] § 868. Notice of the Improper Removal of a Pauper from another Couriiy.^ County, ss: To the Superintendents of the Poor of the county of : You are hereby notified, that A. B., a poor and indigent person, has been improperly sent, [or, carried ; or, brought ; or, removed ; 1 The notice is to be served on any one of the Superintendents^ who must den/Jthe allega. Uons contained therein, within thirty days, unless they acquiesce in the same. V 31 482 NEW CLERK'S ASSISTANT. or, enticed to remove, as, the case may ie,] from the said county of , to the county of , ■without legal authority, and there left, with intent to make the said county of , to which the said removal was made, chargeable with the support of the said pauper. You are therefore required, pursuant to the provisions of Section 59, Title 1, Chapter 20, Part 1, of the Revised Statutes of the State of New York, forthwith to take charge of such pauper. Given, (fee, \as in § 857.] § 869. Annual Seport of the Superintendents of the Poor, to tht Secretary of State. The Superintendents of the Poor of the county of , in pursuance of the provisions of the Revised Statutes for " the relief and support of indigent persons," present to the Secretary of State their annual report, as follows: The number of paupers relieved or supported during the year pre- ceding the 1st of December instant, was : of the persons thus reheved,' the number of county paupers was ; and the number of town paupers The whole expense of such support was . 8— — Of this sum, there was paid for transportation of paupers, Allowance made to Superintendents for their services, do do Overseers, do do .-_ do do Justices, do do dp do Keepers and officers^ do do do Physicians, for services and medicines, 1 The actual value of the labor of the paupers maintained, was The estimated amount saved in the expense of their support, in consequence of their labor, was ' The sum actually expended, over and above the labor and earn- ings of the paupers, divided by the average number kept during the year, gives dollars and cents per week, as the actual expense of keeping each person. The county poor house has acres of land attached to it, and the whole establish- ment is valued at i J._ $ The number of persons in the poor house on the Ist of December instant, was -Of this number, there were of males, • ^ do do females, Of the males, there were of 16 years of age and under, Of the females of the same age, Of the persons relieved or supported during the year, there were foreigners; lunatics; idiots; and mutes; of the mutes, were between the ages of 10 and 25 years. The number of paupers received into the poor house durin? the year, was Born in the poor house, Died during the year, „. Bound out, ,. - Discharged, ' -- Absconded, - - - The children in the poor house, over six and under sixteen years of age, have been instructed months, by a teacher at the poor house ; [or, sent to the district school house months,] and thij POOR LAWS. 483 whole number of children taught during the year, was \^TMs number is to embrace all the children who have been taught w the course of the year.] Givea (fee, \as in § 857.] § 870. Supervisor's Report for a Town, where all the Poor are not a County Charge, to be made to the Clerk of the Board of Supervisors. The Supervisor of the town of , in the county of , respectfully reports to the Clerk of the Board of Supervisors, as follows : The number of paupers relieved, or supported, in said town, during the year preceding the day of , 18 , as appears from the accounts of the Overseers of the Poor, was, &c., [as in the pre- ceding form to the *, omitting the allowance to the SuperintendewtSi ■ and inserting such other charges as there may be, and then add:'] Of the whole number of paupers relieved by the Overseers during the year, they report there were foreigners; lunatics; idiots; and mutes. The number of paupers under their charge at the time of auditing their accounts, is stated at ; of which were males, and , females. I hereby certify, that the foregoing is a coiTect abstract of the ac- counts- of the Overseers of the Poor of the town of , for the year ending on the day of , 18 , as the same have been settled by the Board of Town Auditors. Dated this day of , 18 . S. T., Supervisor. § 871. Complaint against a Beggar or Vagrant. County, ss: A. B., of the town of - , in said county, being sworn, says that E. F., now in said town, is an idle person, not having visible means to maintain himself, and living without employment ; and is, as the said deponent believes, a vagrant, within the meaning and intent of the statute, and this deponent therefore complains of the said E. F. Sworn, (fee, [as in § 850.] § 872. Warrant on Foregoing Complaint. Town of )gg. County, ) A. B., of the town of , in said county, has this day made complaint, on oath, before me, the undersigned Justice of the Peace. 484 NEW, CLERK'S ASSISTANT. of the said town, that K R, &c., [as in the complaint:] You are therefore hereby commanded, in the name of the people of the State of New York, forthwith to arrest the said E. F., and bring him be- fore me, the said Justice, at my office, in , aforesaid, to an- swer to tlie said complaint, and to be dealt ■with in the premises, according to law. Witness my hand, this day of 18 . G. H., Justice of the Peace. § 873. Record of Conviction of a Vagrant} County, ss: Be it remembered, that E. F. was this day brought before me, the undersigned, a Justice of the Peace of the town of , in said county, at my office in said town, upon the charge and accusation that he was found in the said town, an idle person, not having visible means to maintain himself, and living without employment, [or, as the case may be,] and a vagrant within the intent and meaning of the statute in such case made and provided ; and I, the said Justice, being satisfied, upou due and personal examination of said E. F., and by his confession now before me had and made, [or, upon competent testi- mony now before me had and g^ven,] that said charge and accusation are in all respects true, the said E. F. is therefore duly convicted be- fore me of being a vagrant, within the true intent and meaning of - said statute ; and it appearing to me that the said E. F. is not a no- torious ofiFender, and that he is a proper object for relief, I adjudge and determine that said.E. F. be committed to the county poor house of said, county, [or, the alms house ; or, poor house of the said town,] for the term of forty days, there to be kept at hard labor ; [or, it appearing to me that said E. F. is an improper person to be sent to the poor house, I do therefore adjudge and determine, that the said E. F. be committed to the common jail of said county for the term of thirty days.] Given under my hand and seal, this day of , 18 . G. H., Justice, &c. [l. b.] § 874. Commitment. County ss : To any Constable of said County, greeting , Whereas E. F. has been this day duly convicted before me, the undersigned Justice of the Peace of the town of , in ssud coimty, of .being a vagrant ; and inasmuch as it appears to me that ' It la tha duly ofevery peace officer to take any person whotn he inav discover to be a ra- ftant, before a magialrate for exaniinaiion. In such cases, no complaint or warrant will be necessary, The Justice has the power to commit a vagrant to the poor house for a terra not exceeding six months, and to the county jail not exceeding sixty days ; in the tatter case, ili* POOR LAWS. '80 Siud E. F. \i not a notorious oflfender, and is a, pvoper subject for relief, [or, is an improper person 'to be sent to the poor house,] I have Adjudged that the said E. F. be committed as hereinafter expressed : You are therefore hereby commanded, in the name of the people of the State of New York, to convey the said E. F. to the county poor house, [or, alms house ; or, town poor house,] the keeper whereof is required to keep him therein, at hard labor, for the term of forty days ; [or, to convey the said E. F. to the common jail of said county, the keeper whereof is required to detain him in safe custody therein, for the term of thirty days.] Given, (fee, [as in § 873.] § 875. Warrant to Commit a Child to the Ooumty Poor House} County, ss : To any Constable of said County, greeting : Whereas, complaint on oath, and due proot have this day been raade to me, one of the Justices of the Peace of said county, that a male [or, female] child of the name of A. B., has been found in' the town [or, city] of , in said county, begging for alms : You are therefore hereby commanded, in the name of the people of the State of New York, to convey the said child to the poor house in s£ud county, [or, town ; or, the alms house of said city,] the keeper whereof is required to detain, keep, employ and instruct, said cluld, in such useful labor as he [or, she] may be able to perform, until discharged therefrom bv the County Superintendents of the Poor, * [or, by the Commissioners of such alms house ; or, by the Overseers of the Poor,] or bound out as an apprentice by them. Witness, &c., [as in §872.] § 876. Warrant to Confine a LmiaUc* County, ss : To the Overseer of the Poor, and Constables, of the Town of , in said County, greeting : A. B., a lunatic, having been found in said town, so far disordered in his senses as to endanger his own person, [or, the persons and nerson may be kept on bread and water only, for one-balf the time, \t the Justice so direct The record of conviction must be filed In the County Clerlt'a office. The Justice may also cause tbo person compiained of to be searched previous to his commitment, and if any pro- perty is found, it may be apiflied for his support while in confinement. » When a child is found begging in any public place, any Justice of the Peace, on complaint and proof thereof, is required to commit such child to the poor house. For the forms of in(icnture.s which Superintendents or Overseers may desire to use, see those hereinbefore -^ven in Chapter 111. ' The Overseer must provide a suitable place for the confinement of a lanatic. If the ap> plication for the arrest is made by a Superintendent, he is required to do the same. 486 NEW CIERK'S ASSISTANT. property of others,] if permitted to go at large ; and no proriaon having been made, either by the relatives, or any committee, for con- fining and maintaining such lunatic, the undersigned, two of the Jus- tices of the Peace of said tovirn, on the application of the Overseer of the Poor of said town, [or, upon our own view,] being satisfied, upon examination, [or, upon information on oath to us given,] that the said A. B. should be forthwith confined : You are therefore hereby commanded, to cause the said lunatic to be safely locked up in such secure place as said Overseer may provide, in conformity to law. Given, &c., [ 18 , before me, ) G. H., Justice. § 891. Examination After Birth. County, ss: E. B., of the town of , in said county, being duly sworn, says, that on the day of last, she was delivered of a POOR LAWS. 491 hastai'd chfld, which is chargeable [or, likely to become chargeable] to said county ; [or, to the town of , in said county ;] and that C. D., of, ice, [as in § 890, to the end.] § 892. Warrant to Apprehend Reputed Father} County, ss: To any Constable of said County, greeting : Whereas, E. B., of , in said county,' upon her examination, on oath, before me, the undersigned, a Justice of the Peace of said county, this day had, did declare that, &c., [as in the examination:] And whereas, E. F., Overseer of the Poor of said town, [or, one of the Supeiintendents of, &c., as the case may be,] in order to indemnify the said town, [or, county,] in the premises, has applied to me to in- quire into the facts and circumstances of the case, and to issue my warrant to apprehend the said C. D., &c. : You are therefore hereby commanded, in the name of the people of the State of New York, forthwith to apprehend the said C. D., and bring him before me, at my office in , aforesaid, for the purpose of having an adjudica- tion respecting the filiation of such bastard child, [or, of such child likely to be born a bastard.] Witness, &c., [as in § 872.] § 893. Subpoena in a Case of Bastardy. County, ss: To R. F., 0. P., &c., greeting; * You are hereby commanded, in the name of the people of the State of New York, personally to appear before G. H., and the under- signed S, T., two of the Justices of the Peace of said county, forth- with, [or, as the case may be,] at the office of the said S. T., in , in said county, to testify what you do know touching the father of a bastard child, wherewith E. B. alledges she is now pregnant, [or, which was lately horn of E. B.] Witness, An appeal may be made to the court by the reputed father^ or b^ the Superintendent or Oveneer, from any order or determination of the Justices, notice of which, with a copy of ihe order, muat be served on such Justices, and on the opposite party. (1 R. S-j 3d eo., e2r, J24.) CHAPTER XXXVI. POWERS OF ATTOENET. PBAOTICAL REHABES. 1. A. letter, or power of attorney, is a written delegation of au- thority, by which one person enables another to do an act for him. 2. Where a power is special, and the authority limited, the attor- ney cannot bind his principal by any act in which he exceeds that authority ; but the authority of the attorney will "be so construed, as to include all necessary means of executing it with effect.' 3. An authority to enter up a judgment against two persons, will not warrant a judgment against one alone." 4. The declarations of one holding a letter of attorney^ made in the course of his dealings as such, with a third person, will bind the principal equally with the articles to which they relate.' 5. Written powers are always' to receive a strict interpretation.* 6. The adoption of one part of a transaction, done under an as- sumed agency, is an adoption of the whole.' 7. Notice given to an agent, relating to business which he is au- thorized to transact, and while actually eng-aged in transacting it, win in general enure as notice to the principal.' 8. Where an act of agency is required to be done in the name of the principal, under seal, the authority of the agent must be under seaL^ An authority to convey lands must be in writing; though it is otherwise of a contract to convey.' ' 13 Johnson, 307 ; IS Id.. 363; 1 Hill, 155 j 3 Id., 262. 31 Hill, 155. • 3 Hill, 262. <3 Hill. 262 •24 Wendell, 325; 3 Hill, 652; 5 Id., 107, 137. • 9 Johnson, 163 ; 5 Hill, 101. ' 2 R. S. m ed.,) 184, 5 6, et sen. ; 6 Won- dell, 461 ; 10 Id., 4.36 ; .13 Id.. 4S1 ; 16 Id., 25, 28! 2 Hill, 485; 5 Id., 107. POWERS OF ATTOENET. 503 9. It is not necessary that a letter of attorney to convey land should be recorded; though when duly proved or acknowledged, in the same manner as conveyances of real estate, it may be so recorded. When such letter of attorney has been recorded, the instrument re- voking it must also be recorded, in the same office.^ 10. When any married woman residing out of this State, unites with her husband in the execution of a power of attorney to convey real estate, she must acknowledge such execution, in the same man- ner as conveyances executed by married women residing out of the State." 1 1. When a person has the power to do an act, in his own right, he may delegate it to an attorney ; but an attorney cannot delegate his authority to a substitute, unless expressly authorized so to da Whenever a substitute is regularly appointed, he must act in the name of the principal 12. The authority of an attorney ceases when it is withdrawn by the principal ; but where the letter of attorney forms part of a con- tract, and is security for money, or for the performance of any act which is considered valuable, it will be deemed irrevocable in law.' 13. The revocation of a letter of attorney takes effect, as to the attorney, from the time it is communicated to him ; and as to third persons, from the time they have notice of it 14. If a power of attorney is to be used in a different State or Territory from that in which the principal resides, it should be duly acknowledged or proved. Where the attorney resides, or is to tran- sact business in a foreign country, the acknowledgment should be made before a Notary. FORMS. § 913. General Form of Power of Attorney S Know all men by these presents : That I, A. B., of , in the county of , and State of New York, have made, consti- tuted and appointed, and by these presents do make, constitute and appoint, CD., of, (fee, my true and lawful attorney, for me, and in my name, place, and stead, *[sei forth the subject matter of the power,'] ^ving and granting unto my said attorney, full power and authority, to do and perform all and every act and thing whatsoever. ■' 2 R. S. C3d ea.0.47, §5 45, 46 : 10 Paige, 346. 5 2 K. S. (3d ed.,) 47, § 47 j Laws of 1835, chap. 275. • 11 Johnson, 47 ; 12 Id., 343 ; « Cowett, 489. * For different fornig of acknowledgments, to accompany powers of attorney, when ne- cessary, see Chapter 1. 504 NEW CLERK'S ASSISTANT. reqnisite and necessary to be done, in and about the premises, as fuLy, to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation, hereby rati- fying and confirming all that my said attorney, or his substitute, shall lawfully do, or cause to be done, by virtue thereof In witness whereof I have hereunto set my hand and seal, the day of , in the year one thousand eight hundred and Sealed and delivered in ) A. B. [l. s.] the presence of J G. H. § 914. Power of Attorney to Collect Debts'. Know all men by these presente, &c.: [as m § 913, . property to be insured^ with the Fire \or, Marine] Insurance company, in the city of , on such terms as to my said attorney shall seem meet and proper; and I hereby empower my said attorney to sign any 508 NEW CLERK'S ASSISTANT. application for said insurance, any representation of the condition and value of said property, articles of agreement, promissory, or premium note, and all other papers that may be necessary for that purpose ; and also to cancel and surrender any policy he may obtain, and on such canceling, or the expiration thereof, to receive any dividend, return premium, or deposit, that may be due, and on such receipt full discharge to g^ve therefor ; giving and granting unto my said attorney, &o., [ a« in. § 913, 3 Denio, 238. 104, 107. I • 8 Paige, 229. 510 SEW CLERK'S ASSISTAST. where the party executing it has a present interest, or a present right to take effect in future; and it must be delivered to the witness him- self, or to a third person, for the use of the witness, before his com- petency will be deemed to have been restored.' FORMS. § 925. General Form of Receipt on Account. 150. Albany, May 1, 1847. Received of C. D. fifty dollars, to apply on accoimt. A.B. § 926. Receipt in FuH. $110 10. Albany, May 1, 1847. Received of C. D. one hundred ten doDars and ten cents, in full of all demands against him. A. B. § 927. Receipt for Money paid by Third Person. $100. Albany, May 1, 1847. Received of C. D., by the hand of E. F., one hundred dollars, to apply on account of said C. D. A. B. § 928. Receipt for Money on Bond. *200. Albany, May 1, 1847. Received of C. D. two hundred dollars, to apply on his bond, dated the day jf , 18 , being the same sum this day in- dorsed on said bond. A. B. § 929. Receipt for Interest Money. $140. _ Albany, May 1, 1847. Received of C. D. one hundred forty dollars, being the annual in- terest due on his bond, dated the day of ,18 , given to me, [or, to E. F.,] and conditioned for the payment of the sum of two thousand dollars, in three years from date, with annual interest ' A. B. ' 2 Johnson, 170 ; 9 Id., 123 ; 4 Hill, 256. RECEIPT AND RELEASE. 511 § 930. Receipt to he Indorsed on a Bond or Contract. $140. _ Albany, May 1, 1847. Received of C. D. one hundred forty dollars, being the annual in- terest due on the within bond, and the same sum this day receipted by me to the said C. D. A. B. § 931. Release of all Demands. Know aU men by these presents : That I, A. B., of the of , for and in consideration of the sum of dollars, to me in hand paid by C. D., of , have remised, released, and forever discharged, and by these presents do, for myself, my heirs, executors, administrators and assigns, remise, release, and for- ever discharge, the said C. D., his heirs, executors and administrators, of and from aU and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, claims and de- mands, whatsoever, in law or in equity, which I ever, had, or now have, or which I or my heirs, executors, administrators, or assigns, hereafter can, shall, or may have, by reason of any matter, cause, or thing, whatsoever, from the beginning of the world to the date of these presents.* In witness whereof, \ have hereunto put my hand and seal, this day of , one thousand eight hundred and In presence of > ^ B ^^ ^ j § 932. Special Release. Know all men, &c., [as in § 931, to the *, and then add:'\ arising out of any dealings, or transactions, between myself and the said C. D., at my store in the city of In witness, Judgment rendered the day of , CD. ) 18 , in the Court, in the county of : [or, before C. C, Esq., a Justice of the Peace in and for county.] Judgment perfected and docketed in County Clerk's oflSce, the day of , ,18 : [or. Transcript filed and judgment docketed in County Clerk's office, the day of , 18 .] ' A release of a lien on real estate, by mortgage or judgment, ehould be acknowledged, and recorded in the county where the premises are situated. sSe«ioteto§934. RECEIPT AND EELEASE. ii ! •'! In consideration of dollars, to me in hand paid, the receipt whereof is acknowledged, 1 do hereby reraise, relesise and discharge, the following described land and premises, to wit: [describe the pre- mises .'I from all claim to, or interest in, the same, or any part thereof^ which I may have, under and by virtue of the above men- tioned judgment, and from all lien or incumbrance that has attached to the same by reason of the recovery of the said judgment, as free and clear, in all respects, as though said judgment had not been ren- dered. In witness whereof, I have hereunto set my hand and seal, this day of , 18 . Sealed and delivered ) A. B. [l. s.] in presence of J G. H. § 936. Release of a Legacy. Know all men by these presents : That, whereas, A. B., of , m the county of , and State of • , by his last will and testament in writing, bearing date the day of , A. D. 18 , did, among other legacies therein contained, give and be- queath unto me, C. D., of , in the county of , and State of , the sum, or legacy, of dollars, and of his said will and testament did make and constitute E. F. the sole ex- ecutor, [or, E. F. and Q. H. joint executors :] Now, therefore, I, the said C. D., hereby acknowledge the receipt from the said E. F., ex- ecutor, [or, E. F. and G. H., executors,] as aforesaid, of the said sum, or legacy, of dollars, so given and bequeathed to me as aforesaid, and do acquit, release and discharge, the said E. F. [or, E. F. and G. H.,] of and from all legacies, dues and demands what- soever, under or by viitue of the said last will and testament, or against, or out of, the estate of the said A. B. In witness, &c., [cw in § 931.] § 937. Release from a Party to a Witness. Supreme Court [or, Justice's Court. A. B., ) A. B., ) y. against ]■ against > Before G. H., Esq.] CD. ) C. D ) For value received, I do hereby release E. F., a witness offered [or, to be offered] by me, on the ttial of this cause, of and from any claim or demand which I now, or may hereafter have, against him, by reason of the determination of this suit, or any matter, either di- 33 514 NEW CLERK'S ASSISTANT. rectly or indirectly brought, or to be brought, in question, in this suit, either for or against me. And I do further release liim from all demands connected with, or depending upon, the subject matter of this suit, or any part thereof, which I now or may hereafter have against him. In witness, &c., [as m § 931.] § 938. Selease from a Witness to a Party. In Supreme Court. A.B., against ]■ [or, as in 8 937.1 C. D. ' For value received, I do hereby release A. B., plaintiff in the above cause, of and from any claim or demand which I^now, or may hereafter have, against him, by reason of the determination of Has suit, or any matter, either directly or indirectly, brought or to be brought in question, in this suit, either for or against him. And I do further release him, &ti.,[as in § 937, to the end.] CHAPTEE XXXVm SCHOOLS. PRACTICAL EEMABK.B. 1. Oommon Schools in the State of New York are free to all per- sons residing in the district over fire and under twenty-one years of age ; and persons who are not residents may be admitted therein, with the consent, in writing, of the trustees, or a majority of them.' 2. The inhabitants of school districts entitled to vote at district meetings, when legally assembled, have power, by a majority of the votes of those present : To appoint a chairman for the time being ; to adjourn from time to time, as occasion may require ; to choose a District Clerk, three Trustees, a District Collector, and a Librarian, at the first meeting, and to supply vacancies whenever they occur ; to designate a site for a district school-house ; to lay such tax on the taxable inhabitants as the meeting shall deem suflScient to purchase or lease a, suitable site for a school-house, and to build, hire, or pur- chase such school-house, and to keep the same in repair and furnish it with necessary fuel and appendages; to designate sites for two or more school-houses for their district, and lay a tax in the same man- ner as above provided, with the consent of the Town Superintendent ; to levy a tax, not exceeding twenty dollars in any one year, for the purchase of maps, globes, black-boards and other school apparatus ; to vote a tax for the purchase of a book in which "to record the pro- ceedings of the district ; whenever the site of their school-house has been legally changed, to direct the sale of the former site oi lot, with the buildings and appurtenances ; in a district numbering more than fifty children, between the ages of five and sixteen years, and having over one hundred and twenty-five volumes in the district library, or numbering fifty children or less, between the above ages, and having ■1 Laws of 1849, chap. 140 516 NEW CLERK'S ASSISTANT. over one hundred volumes, to appropriate the whole or any part of the library money belonging to the district for the current year, at a special meeting to be called for the purpose, to the purchase of maps, globes, black-boards, or other scientific apparatus for the use of the school ; to lay a tax, not exceeding ten dollars for each year, for the purchase of a district library, to consist of such books as the district may direct, and such further sum as they may deem necessary for the purchase of a book-case, — ^provided, however, that the intention to propose the tax be stated in the notice of the meeting ; with the consent of the Town Superintendent, to unite their hbrary moneys with those of an adjoining district, or districts, and purchase a joint library for the use of such districts, to be selected by the Trustees, or such person as they may designate ; to direct the public money going to the teachers, to be divided into not exceeding two portions for each year, one of which is to be assigned and applied by the Trustees to each term during which a school shall be kept in the dis- trict, for the payment of teachers' wages ; and to alter, repeal and modify, their proceedings from time to time, as occasion may re- quire.' 3. The amount of tax which may be voted for the purchase or lease of sites for the school-house, for repairs, fuel, furniture, and ap- pendages, is unlimited by law; but no tax for building, hiring, or purchasing a school-house, can exceed the sum of four hundred dol- lars, unless on the certificate of the Town Superintendent of the town in which the school-house is to be situated, that a larger sum, speci- fyuig the amount, is necessary ; in which case a stfm may be raised not exceeding the amount so certified. In districts composed of parts of several towns, the certificate of a majority of the Town Superin- tendents of such lowns will be necessary." 4. A majority of all the taxable inhabitants of any school district, to be ascertained by taking and recording the ayes and noes of such inhabitants attending at any annual, special, or adjourned school dis- trict meeting, may determine that a tax exceeding four hundred dol- lars, for building, hiring, or purchasing a 'school-house, be raised by installments ; and it will then become the duty of the Trustees to raise the tax in accordance with such detei-mination. The payment or collection of the last installment cannot be extended beyond five years from the time the original vote to raise the tax was taken ; and no vote to levy any such tax can be reconsidered, except at an ad- journed general or special meeting, to be held within thirty days thereafter, and the same majority will be requisite for a reconsidera- tion as was necessary to levy the tax.' 5. The following are the qualifications of voters at district meet- > Laws of 1817, chap. 480. 1 Laws of 1647, chap. 480 ; 18 Johnson, 351 ; E Bill, 46. < Laws of 1817, chap. 480. SCHOOLS. 517 ings: The voter must be a male, twenty-one years old, or upwards, and an actual resident of the district. In addition to the foregoing, he must possess one or other Of the following qualifications : He must be entitled by law to hold land in this State, and must own or hire real property in the district, subject to taxation for school purposes — or he must be entitled to vote at town meetings of the town in which the district, or part of a district is situated, and must have paid a rate bill for teachers' wages in the district within one year pre- ceding, or must own, personally, property liable to be taxed for school purposes in the district, exceeding fifty dollars in value, exclusive of what is exempt from execution.' 6. The Town Superintendent of Common Schools is elected at the time, and in the manner, provided by law for the election of other town oflicers, and holds his office for two years, commencing on the first Monday of November succeeding his election. He is required to perform all the duties, and is subject to the restrictions and liabili- ties formerly imposed by law on Commissioners and Inspectors of common schools, in addition to the other powers and duties conferred and enjoined upon him. It is his duty, on or before the first Mon- day of November succeeding his election, to execute to the Super- visor of his town, and file with the Town Clerk, a bond, with one or more sufficient sureties, to be approved by the Supervisor, in the penalty of double the amount of school money received from all sources during the preceding year ; and whenever the Supervisor is of the opinion that the security of the Town Superintendent is not sufficient for the protection of the public, he may require further security. If the Town Superintendent fails to give such further security, within five days after the service of a written notice from the Supervisor upon him, his office will be vacant. A person appointed to fill a vacancy in the office of Town Superintendent, will hold his office, only tiU the first Monday of November, following the nest annual town meeting, at which a successor to the incum- bent must be regularly chosen by the electors.' 7. The Town Superintendent has the general supervision of the common schools in his town ; visits and inspects each school legally organized, at least twice a year, and oftener if, in his opinion, it ba necessary; examines and licenses teachers, and re-examines them and annuls their licenses whenever he thinks proper; receives and apportions the school moneys; regulates and alters school districts, (in conjunction with the Supendsor and Town Clerk, when required by the Trustees of any district interested ;) prosecutes for, and col- Laws of 1847, chap. 480 1 Laws of 1847, chap. 480 Laws of 1849, chap. 382; Laws of 1850, chaii ISi- 518 NEW CLERK'S ASSISTANT. kcts all fines, penalties and forfeitures ; and makes an annual report to the County Clerk, of the condition, &c., of common schools in his town. Vacancies in the.office of Town Superintendent are to be filled by any three Justices of the Peace, of the same town, by war- rant under their hands and seals.' 8. Town Superintendents are to be deemed qualified teachers, while they remain in office. They have power, also, to administer oaths in all cases relating to school affairs and controversies, but they cannot charge any fees therefor." 9. The Town Clerk of a town is required to act as the clerk of the Town Superintendent. He receives all the estimates and appor- tionments of school money, and records the same; and receives, keeps, and files in his office, all reports made to the Town Superin- tendent by the Trustees of School Districts, and, when required, all the books and papers belonging to the Town Superintendent He also notifies the Town Superintendent to make his annual report^ when informed by the County Clerk that such report has not been made." 10. Trustees of school districts are to be chosen by the inhabi- tants of the district entitled to vote, at their first meeting, and there- after at any annual or special meeting legally convened, whenever a vacancy occurs. Each district elects one Trustee annually, who serves for three years, and until a successor be elected or appointed Any person elected to fill a vacancy, holds the office only for the unexpired term. Where the office of Trustee becomes vacant by the death, refusal to serve, removal out of the district, or incapacity of the officer, and the vacancy is not supplied by a district meeting within one month thereafter, the Town Superintendent of the town may appoint any person residing in the district to fiU the vacancy. The duties of .Trustees are: To receive and apply the public money:' to call annual and special meetings; to assess and provide for the coUecfion of district taxes ; to purchase and lease sites ; to build, hire and purchase school-houses, repaif and furnish them, and attend to the custody and safe-keeping of district property; to sell and execute conveyances of sites and houses when no longer required; to employ teachers and pay them; to make out and attend to the collection of tax lists; and account annually to the district, and report to the Town Superintendent. Trustees are also required to pay over all balances in their hands, to their successors ; and the latter are liable lor all lawful contracts made by their predecessors. Joint Trustees are responsible for their own acts, and not for the acts of each other, unless by express agreement; they are not answerable for mistakes of law, or mere errors of judgment, without any fraud or malice; ' Laws of 1847, chap. 430 ; I Demo, 141 I " Liws of 1S47, chap. 480 • Laws of 1849, chap. 382 | SCHOOLS. 510 but they are liable for fraud or neglect A contract made by aU the Trustees, and signed by two, is binding; and where any official act is performed by two, the presence of the third will be presumed, until the contrary be shown.' . 11. The Trustees of each school district are required, within thirty, and not less than fifteen days, preceding the time for holding the annual district meeting in each year, to prepare an estimate of the amount of money necessary to be raised in the district for the ensuing year, for the payment of the debts and expenses to be in- curred by said district for fuel, furniture, school apparatus, repairs, and insurance of school-house, contingent expenses, and teachers' wages, exclusive of the public money, and the money required by law to be raised by the counties and towns, and the income of local funds, and to cause printed or written notices thereof, to be posted for two weeks previous to said meeting upon the school-house door, and LQ three or more of the most public places in said district The Trustees are to present this estimate to the school meeting, and the voters present, of full alge, residents of the district and entitled to hold land in the State, who own or lease real property in the dis- trict liable to taxation for school purposes, — or who have paid any district tax (not rate bUl) within two years preceding, — or who own any personal property, liable to be taxed for school purposes, in the district, exceeding fifty dollars in value, exclusive of such as is ex- empt from execution, — and no others, may vote upon such estimate, for each item separately. So much of the estimate a-s shall be ap- proved by a majority of the voters present must be levied and raised by tax on the district in the same manner a.s other district taxes. If the Trustees neglect to prepare the estimate, or to give the notice required by law, the meeting may adjourn to such time • as will enable them to prepare the estimate, and give the notice. If the voters of any district at their annual meeting, refuse or neglect to raise by tax a sum of money, which added to the public money, and the money raised by the couifty and town, will support a scliool for at least four months in the year, keep the sehool-house in repair, and provide the necessary fuel, it will be the duty of the Trustees to repair the school-house, purchase the necessary fuel, employ a teacher for four months, and levy and coUect the additional expense from the district in the same manner as other district taxes are levied and collected.' 12, It is the duty of ihe Board of Supervisors of eveiy county, at their annual meeting, to cause to be levied and collected from their respective counties, in the same manner as county taxes, a sum equal to the amount of State school moneys apportioned to- such 'Laws of 1847, ehitp. 480; 9 Johnson, 380 : I < Laws of 1^9, chao. 140; Id., dup, I) M„ 114; r Wendell, 181; 9 Id., 17; 4 404. Uill,lG8; IDenio, 214. | 520 SEW CLERK'S ASSISTANT. county, and to apportion the same as the State moneys are appor- tioned ; also, to levy and collect from each of the towns in their re- spective counties, in the same manner as other town taxes, a sum equal to the amount of State school moneys apportioned to snch towns respectively.' 13. Every district tax must be assessed by the Trustees, the tax list made out, and the proper warrant attached, within thirty days after the district meeting at which the tax was voted. Immediately after the expiration of the thirty days, the tax list and warrant must be delivered to the Collector.^ 14. Where no provision, by tax or otherwise, is made for the necessary fuel for the school in a district, the Trustees may procure it, and levy a tax upon the inhabitants to pay for the same. The Trustees may also expend a sum, not exceeding teti dollars in any one year, in the repair of the school-house, and collect the same as a separate tax, or add it to any other tax to be collected.^ 15. District Clerks are required to record the proceedings of the district ; to enter in the district book true copies of all reports made by the Trustees to the Town Superintendent; to give notice of special meetings called by the Trustees, to each inhabitant in the district liable to pay taxes, at least five days before the meeting, by reading the notice in the hearing of such inhabitant, or in case of his absence from home, by leaving a copy thereof, or of so much thereof as relates to the time and place of meeting, at the place of his abode, at least six days before the time of the meeting ; to aflSx a notice in writing of the time and place for any adjourned district meeting, when adjourned over one month, in at least four of the most pubHo places in the district, at least five days before the meeting; to give the like notice of every annual meeting ; to keep and preserve all books, records and papers, belonging to his office, and deliver them to his successor ; within ten days after each annual or special meeting for the election of officers, to forwar^to the Town Clerk the names of the persons elected to the several offices ; and to receive and keep the District School Journal, and cause the same to be bound.* 16. It is the duty of the Collector of a school district, to collect the moneys required by all warrants placed in his hands, within the time required therein, and to. pay the same over to the Trustees, taking their receipt therefor. When reqiiired by the Trustees, the Collector must execute a bond with sureties, one or more, to be approved by them, in double the amount of any tax list to be collected by him. He has the same powers as a Collector of a town, authorized to collect town and county taxes, and may in like manner, seize any property under his warrant, except the arms and accoutrements of a » Laws of 1849, chap. 140. | • Lawa of 1841, chap. 267 ; Laws of 1847, « Laws of 1849, chap. 882. chap. 480; 6 Wendell, 436; 11 Id., 604; t > Laws of 1849, chap.S82. | Uill, 646; 1 Sesio^ 214; 3 Id., &2& SCHOOLS. 5£1 person enrolled In the militia, required by act of Congress to be kept by such person. The jurisdiction of a Collector is unlimited, and extends to any other distiict or town in the same county, or in any other county where the district is a joint district, and composed of territory from adjoining counties.' 17. The Librarian of a district has charge of the library thereof subject to the directions and instructions of the Trustees, to whom he is amenable, and by whom he may be removed for wilful disobedience of their directions, or for wilful neglect of duty. If the office of Librarian be vacant, the Distiict Clerk discharges the duties." 18. The Town Superintendent may accept the resignation of a school district officer, for sufficient cause. Vacancies, except in the office of Trustee, are to be filled by the Trustees, or a majority of them ; the persons so appointed will hold their offices until the next annual meeting, and until others ai e elected in their places.' 19. The term of office of school district officers expires at the time jf the annual meeting, and they do not hold over till others are elected to fill their places.* 20. The apportionment of a school tax must be made by all the Trustees, or by two, the other being present, otherwise the warrant will be void.' 21. Want of notice of any annual or special district school meeting will not invalidate the proceedings, except where the omission was wilful and fraudulent. The annual meeting, however, must be held at the time and place fixed at the previous annual meeting.' 22. Whenever a suit is commenced against the Trustees of a school district, in consequence of any official act by them performed, in pursuance of, and by the direction of such distiict, on the final determination thereof, or whenever, after the final determination of a suit commenced by or against any Trustees or other officers of a school district, a majority of the taxable inhabitants of any school district so determine, it will be the^duty of the Trustees to ascertain the amount of all costs, charges and expenses paid by such officer, in the following manner, and to assess and collect the same as other district taxes are assessed and collected : The officer must serve a copy of his account, verified by oath or affirmation, upon the Trustees, together with a notice that on a certain day, to be therein specified, he will present such account to the Board of Supervisors of the county. It is the duty of the officer on whom the notice, &c., is served, to attend at the time specified. The Board of Supervisors will examine the account, and may adjourn from time to time for that purpose. The account of the officer, with his oath, is prima facie 1 Laws of 1847, chap. 480; 5 Wendell, 170 ; 1 Ileoio,233; 2Id.,86> * Laws onS47, chap. 480. s Laws of 1847, chap, 480. * Laws of 1849, chap. 382. > 4 Denio, 12S. • Laws ot 1847, chap. 460 ; 3 Denio, B2L 522 NEW CLERK'S ASSISTANT. eyidence of its correctness. ' The Board may make an order directing the whole, or such part of the account as they think proper, excepting the same appears to have been occasioned by the -wilful neglect or misconduct of the claimant, to be paid by the district Within thirty days after service of a copy of the order on the Trustees, it is their duty to enter the same in the book of records of the district, and issue a warrant for the collection of the amount directed to be paid in the same manner as upon a tax voted by the district The amount^ when collected, is to be paid to the officer. This provision does not extend to suits for penalties, nor to suits or proceedings to enforce the decisions of the Superintendent' 23. Where two school districts are consolidated into one, the new district succeeds to all the rights of property of the old districts. When a district is annulled, the Town Superintendent of the town in which the school-house is located, is required to sell the property of the annulled district at public auction, notices of which are to be posted, at least five days previous to the sale, in three or more publi? places in the town, one of which must be in the annidled district The proceeds of the sale are to be first applied to the payment of the debts of the district, and the residue thereof apportioned among the taxable inhabitants of such district, according to their respective assessments on the last assessment roll of the town, or towns, within which the district is located.' 24. Appeals may be made to the State Superintendent, from any decision made by a school district meeting ; from any ofiScial act, pro- ceeding, or decision, of a Town Superintendent, and from a refusal to discharge any duty imposed upon him by law, or the regulations of the State Superintendent; from the decision, or act, of any officer required to perform any duty under the Common School Law ; from any act or decision of Trustees of school districts, in relation to the libraries or the books therein ; and in cases of disputes between dis- tricts and their officers, or between different districts.' 25. The person aggrieved by the act complained of, only, can appeal. Appeals may be jnade by Trustees, in behalf of their districts, whenever they are aggrieved. An appeal must be ip writing, and signed by the appellant Where Trustees make an appeal, it must be signed by all, or a reason must be given for the omission, verified by the oath of the appellant, or of some other person acquainted with such reason. A copy of the appeal, duly verified, and of all the statements, maps and papers, intended to be presented in support of it, must be served on the officers whose act or decision is complained of, or some one of them ; or, where a district is concerned, on the District Clerk, or one of the Trustees, within ' Laws of 1847, chap. 172 ; Lowa of 1849, I • Lawsof 1847, chap. 480; U Wendell, 90; chap, 383. and Regulations of the State SuperintenUeal • Laws of 1849, chap. 383. j SCHOOLS. 523 thirty days aftei the making the decision, or the performance of the act complained of, or within that time after the appellant had knowledge of such act or decision, unless some satisfactory excuse be rendered for the delay. 26. The party on whom the appeal is served, must answer the same within ten days afer such service, either by concurring in tne appeHant's statement of facts, or by a separate answer. Such state- ment or answer, must be signed by all the Trustees, or other officers, whose act, or decision, is complained of, or, if this be omitted, a good reason, on oath, must be given therefor. Where the parties concur in a statement, no oath will be required ; but all facts, maps, or pa- pers, not concurred in, or agreed upon, and evidenced by their sig- natures on both sides, must be verified by oath. All oaths required in cases of appeal, may be taken before any Judge of a Court of Record, Commissioner of Deeds, or Justices of the Peace. 27. A copy of the answer, and of all the statements, maps and papers, intended to te presented in support of it, must be served upon the appellants, or some one of them, within ten days after service of a copy of the appeal, unless further time be given by the State, Su- perintendent; but no replication nor rejoinder shall be allowed, except by permission of that officer, and in reference exclusively to matters arising_ on the answer which he may deem pertinent to the issue. Replications and rejoinders, when allowed, must be duly verified by oath, and copies thereof seiTed on the opposite party. Proof or ad- mission of the service of copies of the appeal, answer, and all papers intended to be presented in support thereof, or used on the hearing, must accompany the same. ' 28. When any proceeding of a district meeting is appealed from, and when the inhabitants of a district generally are interested in the matter of the appeal; or, where an inhabitant might be an appellant, had the decision or proceeding been the reverse ; any one or more of such inhabitants may answer the appeal, with or without the Trustees. 29. Where an appeal has relation to the formation or alteration of a school district, it must be accompanied by a map, exhibiting the rite of the school-house, the roads, the old and new lines of districts, the different lots, the particular location and distance from the school- houses of the persons aggrieved, and their relative distance, if there are two or more school-houses in question ; also a list of all the taxa- ble inhabitants in the district or territory to be affected by the ques- tion ; the valuation of the property, taken from the last assessment roll ; and the number of children between five and sixteen belonging to each person, (Mstinguishing the districts to which they respectively belong. SO. When the copy of an appeal is served, all proceedings upon, or in continuation o^ the act complained of, or consequent in anyway 52'! NEW CLERK'S ASSISTANT. upon such act, must be suspended, until the case is decided. And where the Town Superintendent, or the Trustees of a district, have money in their hands, which is the subject of dispute and appeal, they must retain such moneys to abide the event 31. Whenever a decision is made by the State Superintendent, and communicated to the Town Superintendent, respecting the formation, division, or alteration of districts, the latter must cause the decision to be recorded in the office of the Town Clerk. All other decisions communicated to him, or to the Trustees of a district, are to be kept among the official papers of the 'Clerk of the town or district ; and the District Clerk is. required to record aU such as come to his hands, in the district book kept by him. FORMS. § 939. Town Superintendent's Bond, with Approval, Know all men by these presents : That we, A. B., C. D., and E. F., of the the town of , in the county of , are held and firmly bound unto L. M., Esq., Supervisor of said town, in the penal_ Bum of dollars, [double the amount of school money received from all sources during the preceding yearj] to be paid to the said L. M. or his successor in office ; to the which payment, well and truly to be made, we bind ourselves and our legal representatives, jointly and severally, firmly by these presents. Witness our hands and seals, this day of , 18 . Whereas, the above bonndeh A. B. has been duly elected \or, ap- pointed] Town Superintendent of Common Schools for the said town of : Now, therefore, the condition of this obligation is such, that if the said A. B. shall faithfully apply, and legally disburse, all the school money which may come into his hands during his term of office as such Town Superintendent, and faithfully discharge all the duties of sMd office, then this obligation to be void ; else, to remain in full force. Signed, sealed and delivered, ) A. B. in presence of f C. D. G. H. E. F. I approve of 0. D. and E. F., as sureties to the foregoing [or, within] bond. Dated the day of ,18 L. M. Supervisor of the Town of SCHOOLS. *>-o § 940. Warrant of three Justices appointing Town Superintendent to Jill a Vacancy.^ Town of , ss: Whereas, A. B., duly elected Town Superintendent of Common Schools of said town, at the annual town meeting held therein, on the day of , 18 , has neglected to execute the bond required by law ; [or, has removed from said town ; or, has deceased ; or. Whereas, the bond executed by A. B., duly elected Town Super- intendent, &c, has not been filed and approved ia conformity to law;] by reason whereof, the said oflBce of Town Superintendent has be- come vacant: , Now, therefore, we, the undersigned, three of the Justices of the Peace of said town of , in pursuance of the statute in such case made and provided, do hereby appoint C. D. Town Superin- tendent of Common Schools of said town of , to hold the said office until a successor shall be duly elected or appointed. Given under our hands and seals, this day of 18 H. S. C.H. G.G. L. S. 'l.s.' 'l.s. § 941. Notice to the Town Superintendent, to give Additional Security. ^ To Mr. A. B., Town Superintendent of Common Schools of the Town of : You are hereby notified, that in my opinion, the security hereto- fore given by you is not sufficient for the full protection of the pub- lic against the loss of the school money, likely to be intrusted to you; and you are therefore required to furnish satisfactory security within five days after the receipt of this notice, otherwise your office s'tXL become vacant Dated ; the day of , 18 . Yours, &c., L. M., Supervisor of the Town of . § 942. Eesolviion Creating a New District. At a meeting held for the purpose of forming a new school district, in the town of . , at the office of the Town Clerk, [or, house ■it R. T.,] in said town, on the day of , 18 : Pre- sent, A. B., Town Superintendent of Common Schools :* Resolved, That a new school district be formed, to condst of the * The Justices making the appointfnent, must cause the warrant to be forthwith filed in tha Ifice o( the Town ClcrJc, and immediately give notice to the person a^jpointed. 526 NEW CLERK'S ASSISTANT. present districts number one and number two, [or, the present dis- trict number one, and part of district number two ; or, parts of districts number one and number two :] which said district shall be numbered , and shall be bounded as follows : \»iaie the boundaries with as much precision as the case will admii.^ The formation of the aforesaid district, involving an alteration of districts number one and number two, [or, as the' case may ie,] the consent of the Trustees of the said districts to such alteration has been presented to the Town Superintendent, and filed with the Town Clerk. [If such consent has not been given, make thefollow- img entry: The formation of the aforesaid district, involving an alte- ration of districts number one and number two, and the consent of the Trustees of district number one to such alteration not having been given, it is ordered that a notice in writing, of the said altera- tion, signed by the Town Superintendent, be served on one of the Trustees of the said district, by the Town Superintendent] S. G-., Town Glerk of said town of , and Clerk of the Town Superintendent § 943. Consent of Trustees, to be Indorsed on a Copy of the Order} We hereby consent to the alterations made in district number , in the town of , by the order of which the within is a copy. Dated , the day of , 18 . G H ^ L M ' > ^™^*^^^ ^^ District § 944. Notice to Trustees Not giving Consent, to be served mith a Copy of the Order, on any one of the Trustees. The Trustees of district number , in the town of , will take notice, thart an order was made. this day by the Town Superintendent of common schools of the said town, of which the fbjUowing [or, within] is a copy, by which certain alterations in the said district are made, as wiU appear by the said order; and that ' The consent of the Trustees shouIJ be siven at a meeting of the whole, or of a majoritT, when all have been noiilied to attend. Where an alteration of several distrir.is is made at the same time,— the Trustees of some of the districts consenting thereto, and those of the others, withholding their consent,— the alteration takes effect jmiliediately as to lliose districts the Trustees of which signify their consent. (3 Denio, 114.) ' SCHOOLS. 5r:7 Mtch alterations vrill take effect after three months from the service of this notice. Dated , the day of ,18 A. B., Town Superintendent of Common Schools of the town of § 045. AchaowUdgment of Service of the foregoing, to be Indorsed on a Copy. I, G. H., one of the Trustees of school district number , in the town of , hereby acknowledge due service of a no- tice and copy order, of which the within is a copy, this day of , 18 . G. H. § 946. Notice of the First Meeting in a District, to Organize} To R R, a taxable mhabitant of District No. , m the Town of : * The Town Superintendent of common schools of the town of , having by an order, of which the following is a copy, formed a new district in the said town, to be numbered , consisting of the ter- ritory particularly specified in the said order ; you are hereby requi- red to notify every inhabitant of the said district qualified to vote * at district meetings, to attend the first district meeting of the said district, which is hereby appouited to be held at the house of , in the said town, on the day of next, at six o'clock in the afternoon, by reading tliis notice in the hearing of each such inhabitant, or in case of his absence from home, by leaving a copy of this notice, or of so much thereof as relates to the time and place of such meeting, at least six days before the said time so appointed for the said meeting. Dated, &c. A. B., Town Superintendent of Common Schools, of the town of 1 A cop7 of the order forming the district, should he annexed to the above. The notice is required tu be given within twenty days after tlie formation of the district. If it be neces- sary to give notice to the Trustees of the alteration of a district, ttien the notice for the first meeting should specify a day snbseqnent to the expiration uf three months after the service of tbe notice on the Trustees, as the district cannot organize until after that time. The in- liabitant serving tbe foregoing notice should iceep a memorandum of the persons served with the same, specifying the time and the manner in which such service is made; and tbe memo- randum, certified by him, should be delivered, to tbe chairman, or clerk, of the district meeting, and read, that it may be known whether all the voters have been notified. The original notice and return should be filed with the district Clerk. "28 NEW CLERK'S ASSISTANT. § 947. Notice of the Sale of a Sclwol-Home, dbc, ly the Town Superintendent, where a District is annulled, and por- tions thereof annexed to other Districts. NOTICE. Notice is hereby given, that I shall sell at public auction, the school-house and other property belonging to the former School Dis- trict number , in the town of , at said school-house, [or, such place as the Town Superintendent may designate^ on the day of next, \or, instant,] at o'clock in the noon; said school district having been annulled according to law, and portions thereof annexed to other districts. Dated , the day of ,18 A. B., Town Superintendent of Common Schools of the Town of § 948. Apportionment of the Proceeds of the Sale of the Property ■ belonging to an Annulled District. Apportionment or Proceeds of Sale of Property belonging to Annulled School District Number , in the Town of Town of , ss: School District Number , in said Town of , having been annulled according to law, by my order dated on the day of ,18 , and the property of said district having been duly and regularly sold by me, at public auction, and the debts thereof paid out of the proceeds of such sale ; I do hereby make the following apportionment of the residue of such proceeds, among the taxable inhabitants of said annulled district, number , accord- ing to their respective assessments on the last assessment roU of the said town of : Names of Inhabitants. Amount apportioned to each. John Doe, Richard Uoe, ic, &c., Doll's. Cents. 25 1 01 90 Total Am't. Dated, (fee, \as in § 947.] I 949. Resolution fir the Alteration of a District, At a meeting,. &c. : [as in | 942 to the * and then add. 'I Resolved, That districts number one and number two, in the said town of , be altered as follows, mIz ; by setting off the farms SCHOOLS. 5a9 and parcels of land occupied by J. B., T. J., and W/R., from district number one, in which they have heretofore been included, to district number two ; so that the east boundary of district number one shall hereafter be the easterly line of the farms and parcels of land occu- pied by C. D., G. H., and S. T., and the west boundary of district number two shall be the westerly line of the farms and parcels of land Occupied by the said J. B., T. J., and W. K ; the said J. B., T. J., and W. R, having consented to be set ofiF as aforesaid. The written consent of the Trustees of the said districts number one and two,'having been presented to the Town Superintendent, is fQed with the Town Clerk; [or, the consent of the Trustees of the said districts respectively; or, of said district number one; or, num- ber two ;] not having been given to the said alteration, it is ordered that a notice, in writing, of such alteration, signed by the Town Superintendent, -be served on the Clerk, or some of the Trustees of each of the said districts ; [or, of said district number one ; or, num- ber two.j S. T., Town Clerk, &c. § 950. Resolution for the Formation, or Alteration, of a Joint District, from two or more Towns} At a meeting held for thfe purpose of forming a joint district from district number , in the town of , and district number , in the town of , [or, of altering joint dis- trict number , situate partly in the town of , and partly in the town of ,] at the office, (fee, on the day of, &c. : Present, A. B. and G. H., Town Superintendents of Com- mon Schools of the said towns : Resolved, <&c., [as in § 942, or § 949, with such alterations as the circumstances of the case may require^ A. B., Town Superintendent of Common Schools of the Town of G. H., Town Superintendent of Common Schools of the Town of . § 961. Certificate to Teacher, by Town Superintendent. Town of , SB : I hereby certify, that I have examined C. F., and do believe that he [or, she] is well qualified, in respect to moral character, learning I The resolution should be signed in duplloate : one of them is to be recorded in each lem. 34 530 NEW CLEEK'S ASSISTANT. and abOity, to instruct a common school in this town, for one year from the date hereof Given imder my hand, at , this day of , 18 • . A. B., Town Superintendent of Common Schools of the Town of § 952. Instrument Annulling Teacher's Certificate} Town of ■ , ss : Ha\dng inquired into certain complaints against C. R, heretofore licensed as a teacher dt common schools of said town, and being of opinion that he [or, she] does not possess the requisite qualifications as a teacher, in respect to moral character; [or, as the case may be;\ and having g^ven at least ten days previous notice in writing to said teacher, and to the Trustees of the district in which he is employed, of my intention so to do ; I have annulled, and hereby do annul, the said certificate and license so gratited as aforesaid. Given under my hand, this day of ,18 A. B., Town Superintendent of Common Schools of the Town of § 953. Annual Report of the Town Svperintendent, to he made to the ComUy Cleric. To P. v.. Clerk of the County of : I, A. B., Town Superintendent of common schools of the -town of , in said county of , m conformity to the statutes in relation to common schools, do report : That the number of entire school districts in said town, organized according to law, is ; and. that the number of parts of school districts in said town, is ; that the- number of joint districts, the school-houses of which are situated, whoUy or partly, in said town, is ; that the num- ber of entire districts from which the necessary reports have been made for the present year, within the time liniited by law, is ; and ,that the number of parts of districts from which such reports have been made, is ; that the number of schools for colored children taught in said town, during the year aforesaid, for four months or upwards; by a duly qualified teacher, was ' ' Anotein writing, containing the name or the teacher, and the time of annulling the wr tificate, or a duplicate of the instrument, must be filed in tlie Town Clerk's Office. SCHOOLS. 531 And I do further certify and report, that the 'whole amount of money received by me, or my predecessor [or, predecessors] in office, for the use of common schools, during the year ending on the date of this report, and since the date of the last report, for said town, is $ ; of which sum the pai-t received from the County Treasurer, is $ : the part from the town Collector, is 8 ; and that we have collected the sum of $ for penalties; [^ nothing has been collected for penalties, omit the reference to the same; and if money has been received from any other source, specify it here/] that the sad sum of money has been apportioned and paid to the several districts from which the necessary reports were re- ceived, for the purposes and in the proportions following, viz : the simi of 8 for the payment of teachers' wages, and the sum of $ for the purchase of district Ubraries ; that the sum of $ was apportioned by me to district number , for colored children in said district, between the ages of five and sixteen years, who have attended a school taught in district number- , in said town, by a duly qualified teacher, for four months during the preceding year; and $ to district number , for colored children so attending in said district ; and that I have deducted the said several amounts from the sums by me apportioned to the said districts number and , respectively. And I further certify, that during the year before mentioned, I have not collected any fines, penalties or -forfeitures ; [or, that during the year before mentioned, I have collected a penalty of $25, imposed on C. D., a Trustee of District number , in said town, for signing a false report; and that my costs and charges in such collection amounted to $ ' ; and that the balance of such penalty was by me added to the school money received by me and apportioned «s above mentioned ;] that the school books most in use in the com- mon schools of said town are the following, viz : [Specify the sam^ as reported by the Trustees f] And I further certify the tables fol- lowing, to be true abstracts from the reports of the Trustees of the several districts, and parts of districts, as aforesaid.' 1 The children of Indian parents, between 6 and 16 years of age, are not to be enume- rated, unless attending school for at least three months^ during the previous year ;. and it is the duty of the Town Superintendent, where a school 18 kept for the instruction of Indian children in the elementary branches, under charge of a competent teacher, for four months in the year, to apportion and pay over to the teacher, or teachers, on the written consent of the peace makers for the Indians residing on the reservation where the children attend- ing the school reside, such part of the public money as shall be in proportion to the num ber of children instructed for an average period of three months. Satisfactory evidenc* must be furnished to the Town Superintendent, of the time, and the number of childrea taught, and the facts stated succinctly in his report. (Laws of 1816, chap. 45.) 532 IfEW CLERK'S ASSISTANT. PARTS OF DISTRICTS. DISTRICTS. DiSTUICTS AND PARTS. No. 5, No. 6. No. 7. No. S. No. 1. No. 2. No. 3. No. 4. Districts and pans ol Districts from which Reports have been made. ffi en to 09 01 ~>ooo^ Mo. Whole length of time any -:. 8 M S Days. school has heen kept therein. ft rf*-(D*^0) -JMi^OS Mo. Length of time such school has been kept by licensed teachers, ';• ^ 9 M 5 Days. m tO- The notice must be given at least six days previous to the sale, and copies must be posted upln three public places in the town in which the sale ia to be made. 540 NEW CLERK'S ASSISTAJSIT. lowing goods and chattels of R. T.; [or, in the possession of R. T.,] viz : \speci/y the articles:] which I^shall sell at public auction, at the house of L. M., m said town, on the day of next, [or, instant,] at ten o'clock in the forenoon of that 'day. Dated at ,thei day of , 18 . 0. P., Collector of School District No. § 972. Affidavit of Verijication of the Account of a District Officer, Claiming to have Costs, die. Reimbursed. County, ss: A. B., of said county, being duly sworn, says, that he was Collec- tor of school district number , in the town of , in said county, for and during the year immediately preceding the day of ,18 , and that on the day of , 18 , a suit was commenced against him in the Supreme Court of the State of New York, in favor of C. D., plaintiff therein, claiming to recover damages against this deponent for acts performed by vir- tue of or under color of his office ; that such suit was decided in favor of the said C. D., [or, in favor of the deponent ;] that the' foregoing is a jiist and true account of costs, charges and expenses, incurred by this deponent, in and about the defence of the said suit, [insert here, if the suit was decided in favor of the officer, and not collected, or collectible of the plaintiff therein,] and that the same have been fully paid and discharged by this, deponent Sworn to, [or, affirmed,] this day of ) A. B. of ,18 , before me, . | G. H., Justice of the Peace. § 973. Notice to Accompany the Copy of the Accoimt served on the Trustees. To G. H., L. M., and E. ¥., Trustees of District No. , m the Town of : You are hereby notified, that an account, and the verification thereof, of which the above [or, within] is a copy, will be presented to the Board of Supervisors of the oouuty of , at the hous<^ of R F., in the town of , on the day of next, at ten o'clock in the forenoon of that day ; and that application will then and there be made, for an order to be entered requiiing the amount of the said account to be paid by said school district num- ber ; or for such other order in the premises as the said board may see fit to grant Dated ■ , May 1, 1847. A. B. SCHOOLS. 541 §974. Order of the Board of Supervisors, with Clerk's Certificate. At a meeting of the Board of Supervisors of the county of , held at the house of K F., m the town of , in said county, on the day of , 18 , a majority of the said Board being present, it was ordered : That the sum of dollars, being the amount \or, part of the amount] of an account for costs, charges and expenses, incurred and paid by A. B., late Collector of school district number , in the town of , in a suit commenced against him in the Supreme Court of the State of New York, in favor of C. D., plaintiff therein, for acts performed by the said A. B., by virtue of or imder color of his office, and in which judgment was rendered against the said A. B., \or, as the case may 6e,] be assessed upon and collected of the taxable inhabitants and property of said school district number , in the same manner as other taxes of said district are by law assessed and collected, and paid to the said A. B. I certify the foregoing to be a correct copy from the minutes. M. P., Clerk of the Board. § 975. Notice to he Served on the Trustees with a Copy of the Order. To G. H., L. M., and E. R, Trustees of School District No. in the Town of : Tou win please take notice, that the foregoing is a true copy of an order duly made and entered by the Board of Supervisors of the county of , on the day of , 18 . Dated, &c., [as in % 973.] § 976. District Report, to he made hy the Trustees Annually, and transmitted to the Town Superintendent, between the first and fifteenth day of January in each year} To the Town Superintendent of Common Schools of the Town of : We, the Trustees of school district number , in said town, in conformity with the statutes relating to common schools, do certify and report, that the whole time any school has been kept in our dis- trict during the year ending on the date hereof, and since the date of the last report for the said district, is [insert the whole time, though 1 See note to § 993, In regard to not enumerating Indian Clilldren. 542 IfEW CLERK'S ASSISTANT. for apart of it the school may haif& been kept ly a teacher wit' qimli- fied/] and during said year, and since the date of said last report, such school has been kept by a' teacher, [6r, teachers,] after obtaining a certificate [o/, certificates] bf qualification according to law, [insert the titne with precision;^ that the amount of money apportioned to our district by the Town Superintendent of Common Schools during the said year iand since the date of the' said last report, except library money, is [insert the whole amount, except as aforesaid, Ihdugh re- ceived by predecessors in office, in whole, or in part f\ and that the said sum has been applied to the payment of the compensation of teachers employed in the said district, and licensed as the statute pre- scribes ; [If the amount has not been expended, the reason should be particularly specifed/] that the amount of library money received in our district from the Town Superintendent of ' Common Schools during said year, and since the date of the said last report, is [iiuert the whole amount, though received by predecessors, in whole, or in part;'\ and that the said sum was, on or before the first day of Octo- ber last, applied to the purchase of a library for the district '[or, a map of the State ofUew York, a terrestial globe, a black-board, &c., [giving particulars,^ in pursuance of a vote of the district at a special meeting called and held accoifding to law;] that the number of vol- umes belonging to' the district library, and on hand on the last day of December last, ispMseri the niimber/j that the number of ehifdren taught in said district during said year, and since the last report, is [insert the sam£, from the teacher's list, or other authentic sources ;] that of the said children, ten attended less than two months ;, eight, two months and less than four ; four, four modths^ and -less than six ; seven, six months and less than eight ; nine, eight months and less than ten ; two, ten months and less than twelve ; fourteen, twelve months ; and that the number of children residing in our district on the last day of December last, who are over five and under sixteen years of age, is [insert the number in the district, between the ages specified, on the last day of December .'I and that the names of the parents, and other persons, with whom such children respectively re- side, and the number residing with each, are as follows, viz : Parents, dtc, No. of Children Thomas Jones, --- 5 Richard Hoe, -- .......4 [If a school for colored children hds bidri taught in the district insert the follbining : That the number of colored children between tlie ages of five alid sixteen years attending a school taught in our district during the year aforesaid, by a licensed teacher, for at least four months, was twenty-four, of whom ten reside in said district : five attending from district number five; four from district number seven ; two from district number six ; and three from district number SCHOOLS. 543 nineteen "; that the whole ambunt of public money receiveS from the Town Superintendent of Common Schools of our town during the year aforesaid, for the use of said colored school, was $ ; and that the said sum has been applied to the compensation of the teacher thereof ; and that the amount paid to such teacher, over and above the public money so received, was $ .]* And we further report, that our school has been visited by the Town> Superintendent times, during the year preceding this report ; and that the sum paid for teacher's wages, over and above the public moneys apportioned to said district, during the same year, amounts to $ : [give the sum total of all the money, exclusive of public monei/ raised dv/ring the year and applied to the payment of teachers', wages ;] that the school books in use in said district, during said year, are the foUo'wing, viz : [give the titles of all the text books used during the year;] that there have been private or select schools, not incorporated, taught in said district during the year aforesaid, and (that the average number of pupils in attendance therein, was [State the number as near as can be ascertained.^ Dated at , the first day of January, [this is Trusteee, dsc. (fee, &c., ) § 996. Notice to he served with Copy of the Appeal, <£c.' To C. D., District Clerk of School District No. , in the Town of : You will take notice, that the within is a copy of an appeal made by the undersigned, to the Hon. C. M., Superintendent of Common Schools of the State of New York, and of the statements, maps and papers, intended to be presented in support of it , Dated, at , the day of , 18 . E,F. , § 997. Affidavit of Service of Appeal. County, ss: E. F., of said county, being duly sworn, says, that on the day of , 18 , he personally served a copy of the annexed appeal, and of the statements, niaps and papers, accompanying the same, upon A, B., Town Superintendent, fR. S. (3ded.,)328,§22: 9Cowen, 71. | 554 HEW CLE&K'S ASSISTANT. mentioned therein. The officer taking property on an attachment ifa Uable for its safe keeping, and is bound to provide some suitable place for the purpose. He is also required to serve a copy of the attach- ment and inventory on the defendant personally, if he can be found, and if not, to leave the same at his place of residence. Where the defendant has no residence in the county, the copy and inventory are to be left with the person in Trhose possession the goods are found. Where a bond is given to the officer, the goods taken cannot be re- moved.' 6. On receiving an execution, it is the duty of the Constable to levy upon any property of the defendant liable to be taken, within a reasonable time. In order to constitute a levy, the property must be taken into the actual or constructive possession of the Constable." 7. The following property, when owned by a householder, is exempt from levy and sale on execution, viz : All spinning wheels, weaving looms and stoves, put up or kept up for use by the family ; the family Bible, family pictures and school books, used by or in the family of such person ; all books, not exceeding fifty dollars in value, kept and used as part of the family Ubrary ; a seat or pew occupied by such person or his family, in any house or place of pubHc worship ; all sheep, to the number of ten, with their fleeces, and the yarn or cloth manufactured from the same; one cow, and .two swine, and the ne- cessary food for them ; all necessary pork, beef, fish, flour, and vege- tables, actually provided for family use, and necessary fuel for the use of the family for sixty days ; all necessary wearing apparel, beds, bedsteads and bedding, for sufth person and his family ; the arms and accoutrements required by law to be kept by such person ; necessary cooking utensils; one table; six chairs; six knives and forks; six plates; six tea-cups and saucers; one sugar dish; one mUkpot; one cream pot; six spoons; one crane and its appendages; one pair of andirons ; one shovel and tongs ; and the tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding twenty-five dollars in value. In addition to the above, necessriry household furnitui'e and working tools and team owned by any per- son being a householder, or having a family for which he provides, to the value of not exceeding one hundred and fifty dollars, are ex- empt from levy and sale on execution. The defendant cannot, how- ever, avail himself of this last exemption, against an execution issued upon any demand for the purchase money of such furniture, or tools, or team, or any of the other articles above enumerated.' 8. The exemption act of 1842 does not operate retrospectively, so ' 2R. S. (3d ed.,) 329, 532; Laws of 1831, chap. 3U0 ; 6 Johnson, 9 ; 20 Wendell, 238. « 2 R. S. (Sa ed. ,) 347, 5 148 ; 2 Oowen, 421 ; 3Wendeil,416; IOIJ.,349; 11 Id., 648; 14 Id., 123 ; 19 Id., 49S ; 23 Id., 466, 492 ; 2 Hill, 66C. s 2 R. S. (3d ed.,) 464, § 23 ; Laws of 1842, chap. 167 ; 14 Johnson, 434 ; 18 Id., 400 : 1 Cowen, 114 ; 3 Wendell, 274 ; 11 Id., 44 : 16 Id., 571 ; 19 Id., 475; 21 Id., 68 ; 25 Id., ^70 ; 311111.469; 5 Id., 334. SERVICE AND RETURN OF PROCESS. 555 as to affect pre-existing contracts. Tlie questioi\ as to the necessity of the articles thereby exempted, is one of fact for the jury to de- termine, and not one of law.' 9. The lot and buildings thereon, occupied as a residence and owned by a debtor, being a householder and having a family, will be exempt from sale on execution, for debts contracted subsequent to the 1st of January, 1851, to the value^of one thousand dollars, pro- vided a description of the premises be recorded as required by law. (See Chapter xxiv.)" 10. The interest of a mortgagor of personal propertj? before for- feiture, where he has not a right of possession for a definite period, is but a right of redemption, which is not the subject of levy and sale on execution.' 1 1 A Constable is protected in the. execution of process, provided it appear regular on its face.* 12. The party justifying the taldng of property under legal pro- cess, must show he was an officer, and had lawful authority to take property.' 13. A levy upon the property of the defendant is a satisfaction of the judgment, except the same be abandoned upon his request, or where he has not paid the debt, or been deprived of his property.' 14. Where different articles are taken on an execution, subject to a chattel mortgage, they ought all to be sold together.' 15. Property pledged may be taken on execution and sold ; but after the sale, it must be returned to the pledgee till the purchaser at the sale redeems.' 16. Where the defendant sues for property taken on an execution against him, and recovers, the original judgment is not satisfied.* FORMS. § 1000. Return to Simnmons Personally Served. Personally served, July 10, 1847, [add, if necessary : and copy left with defendant, at his request.] Fees, twelve and a half cents. H. C, Coi^table. ' 6 Hill, 442 ;1 Denio, 128,462; 3 Id., 594; I Comatock, 129. a Laws of 1850. chap 260. s 1 Comslock, i295. 4 6 Wendell, 170 ; 6 Hill, 311. t 2 Comslock, 115. » 12 Johnson, 207 ; 4 Cowen, 417 ; 7 Id., 13 : 23 WendeM, 490 ; 2 Hill, 329 ; 2 Comslock, 451. '4 Denio, 171. »2R. S. (3d ed.,) 464, S 21 ; 8 Wendell, 339; 23 Id., 653; 24 Id., 117; 6 Hill, 481 1 Comslock, 129. 9 4 Denio, 16S. 556 KEW CLERK'S ASSISTANT. § 1001. Return to Summoiis Served hy Copy. Served by copy, defendant not being found, July 10, 1847. Fees, twenty-tive centa H. C, Constable. § 1002. Heturn where one or more of several Defendants are not Found. Personally served on A. B., one of the defendants within named, July 10, 1847; and C. D. and E. F., two of the defendants within named, were not found, and I have been unable to ascertain their last place of abode in the county. Fees, thirty-one cents. H. C, Constable. § 1003. Return where no Person of Suitable Age is Fovmd at the last Place of Abode of the Defendant. The within named defendant was not found, nor any person of suitable age or discretion to be informed of the contents of the within summons, at his last place of abode. July 10, 1847. H. C, Constable. § 1004. Return to Warrant. The defendant arrested, and before the court in custody ; plaintiff notified, [or, not notified.] July 10, 1847. H. C, Constable. § 1005. Return to Warrant where one or more of the Defendants are not Found. ^ . The within named defendant, A. B., arrested, and before the court, in custody; C. D. and E. F., the other defendants within named, not found ; plaintiff notified, [or, not notified.] July 10, 1847. H. C, Constable. § 1006. Return to an Attachment. By virtue of the within attachment, I attached and took into my custody the goods and chattels of the defendant, mentioned in an inventory, of which the annexed is a copy, on the 10th day of July, 1847 ; and immediately, on the same day, I made an inventory of the property seized, and served a copy of said attachment and inventory, SERVIOE AND EETURN OP PROCESS. 557 duly certified by me, on the defendant personally; [or, I made an inventory of the property seized, and because the defendant could not be found in the county of , I left a copy of said attachment and inventory, duly certified by me, at the last place of residence of the said defendant; or, with E. F., in whose possession I found the said goods and chattels, the said defendant having no place ol residence in the said county of .] July 10, 1847. H. C, Constable. § 1007. Return to an Attachment where Bond is Given. By virtue, &c. ; [as in § 1006, to the end, and then add : ] but the said goods and chattels were delivered up to C. D., the defendant, \or, to E. F.,] upon receiving the bond herewith returned. Julv 10, 1847. H. C, Constable. §1008. Copy of the Inventory. Copy of an inventory of property this day seized by me, by vir- tue of the within [or, annexed] attachment, viz: [enumerate the articles.^ July 10, 1847. H. C, Constable. § 1009. Bond to Prevent the Removal of Goods Attached.^ Know all men by these presents : That we, C. D. and E. F., of , in the county of , are held and firmly bound unto H. C, in the sum of dollars, to be paid to the said H. C, or to his certain attorijfey, executors, administrators, or assigns; to which payment,^^^J^nd truly to be made, we bind ourselves, our and each of oufEeire, executors and administrators, jointly and seve- rally, firmly by these presents. Sealed with our seals, and dated the day of , 18 .* The condition of this obligation is such, that if certain goods and chattels, to wit : [name the articles,] which have been seized by the above named H. C, a Constable of the town of , in the county of , by virtue of an attachment issued by G. H., Esq., a Justice of the Peace of said county, in favor of A. B., against the above bounden C. D., shall be produced to satisfy any execution that may be issued upon any judgment which shall be obtauied by ' The penalty of this bond should be double the sum sworn to by the plomtifTon his nppli- nittion for the attachment. 558 NEW CLERK'S ASSISTANT. tlie plaintiff upon the said attachment, -within six months after the date hereof, then this obligation to be void; else of force. Sealed and delivered, ) t? i? r ^ • f V Hi, J; . I L. S. I m presence of j ■"• -^ • L J R.F. I approve of E. F. as surety in the foregoing bond. Dated the day of , 18 . H. C, Constable, § 1010. Bond by Claimant of Property Attached. Know all men by these presents : That we, L. M., E. F., and S. T., of, (fee, are held and firmly bound unto A. B., 134, ^§ 16-17 j Laws of 1 > 1 R. S. (3d ed.,) 136, 5 22 ; Laws of 1847 1847, chap. 240. | chap. 240. < No fee can be charged for administering the oath. The certificate must be filed by tb« Supervisor io the office of the Town Clerk, witliin eight days after taking the oaA. 568 NEW CLERK'S ASSISTANT. § 1029. Certificate of the Town Cleric and Justices of the Peace on the Examinatidri of the Supervisor's Accounts, to be entered in his book. Town of , ss : We, the undersigned, the Justices of the Peace and Town C3erk of the Town of , dp hereby certify that we have this day exiimined the within [or, foregoing] account of D. E. L., Supervisor of said town ; and that we find the same in all respects correct and true, and that there appears at this date to be a balance of dollars and cents due from the said Supervisor to the town of , [or, as the balance may be.'\ Dated , the day of ,18 H. F. A. W. I Justices of the •1- G. H. f Peace. S. T. J E. S., Town Clerk. § 1030. Certificate of the Supervisor, to Accompany Copies of Entries in Town ClerFs Book, Town of , ss : I do hereby certify that the within are the copies of entries con- cerning moneys voted to be raised in the said town of , delivered to ine by the town clerk thereof. Dated , tiie day of , 18 . • D. E. L., Supervisor of said Town. § 1031. Notice of Supervisor, calling Special Meeting of the Board of Excise. [See § 429 in Chapter xvii : all the Forms used by the Commis- sioners of Excise may be found in the same Chapter^ § 1032. Appointment of Commissioner of Highways to fill Vacancy. [See § 491 in Chapter xxii : all the Forms used by the Super- visor under the Highway Act, may be found in the same Chapter.'\ § 1033. Report of Supervisor, where all the Poor are not a County Charge. \See § 870 in Chapter xxxv : the other Forms required by the Super- SUPERVISORS. 569 visor in performing his ditties under the Poor Laws, may be found in the same Chapter."] § 1034. Notice to Town Superintendent of Common Schools to furnish Additional Security. [See § 941, in Chapter xxxviii : the other Forms required by the Supervisor under the School Law, may be found in the same Chap- ter.'] §1033. Receipt of Supervisor for Proceeds of the Sale of a Stray [See § 1026, m Chapter xl.] § 1036. Affidavit verifying Account. [See § 1056, in Chapter xliii: other Forms used by the Town Auditors may also he found in that Chapter.] § 1037. Approval of Sureties in a Bond,^ I approve of the sureties named in the above bond. Dated , the day of , 18 . D. E. L., Supervisor of the Town of § 1038. List of Jurors. list of Jurors selected from the town of of , to serve for three years from the 18 . , in the county day of , Names. Occupation. Residence. R. F., licrite the name infuWi Farmer, S. M. Merchant, Near the gate on the Plank Road, Village of 'The Official Bond of a CommiBsioner of Highways may be found in Chapter rm (S 4^) ; that of the Town Superintendeni of Common Schools in Chapter xxxvni, (§939) ; tnat of the Town Collector in Chapter xlii,(§§ 1051,1052); and the Instrument of a Constable in Chapter xxxi, (§804.) It is the duty of Supervisors to prosecute Commisf^ioners of High* ways or Town Superintendents, and ttieir sureties, for breaches of their bonds, or nee Ject. to make proper returns and pay over moneys, according to law. The Bond of the Cw ■ lector, given to the Supervisor, must also be prosecuted by him. •^~0 NEW CLERK'S ASSISTANT.' Town of , ss: We, the undersigned, the Supervisor, Town ClerK and Assessors of the said Town, do hereby certify that the foregomg is a correct list of jurors duly selected by us from the said town, to serve for the ensuing three years. Dated , the day of July, 18 . D. E. L., Supervisor. S. a, Town Clerk. A. B., 1 B. J., V Assessors. § 1039. lAst of Grand Jurors from a Town. List of Grand Jurors selected by the Supervisor of the Town of , from the qualified inhabitants of said town. Names. Occupation. Residence. A. B., [mrite the name infulL] CD., Blacksmith. Cooper. Village of Comers. . I hereby certify that the foregoing is a list of grand jurors se- lected by me from the qualified inhabitants of the town of D. E. L., Supervisor of said Town. § 1040. Tax Bill. [The Tax Bill is a mere copy of the Assessment Boll, (§ 1046, in Chapter xlii,) with another column headed " Amount of Tax " added thereto; in which column the Supervisor inserts the amount of each person's tax, calculated by Mm according to the rate per cent, established by the Board. For other Forms required in the as- sessment and collection of taxes, see Chapter xlii.] § 1041. Mtice of Flection. ELECTION NOTICE. Town of , ss : We, the undersigned, composing the Board of Town Officers of said town, do hereby notify the electoi-s thereof, that the ensuing general election, [or, that a special election duly ordered by the Governor of SUPERVISORS. 571 this Stale,] at which are to be elected the following officers, viz: [iii- sert here a list of the officers to he chosen,'] will be held ia election dis- trict number one, in said town of , on the day of November next, \or, instant,] at the house of O. P., in said district; in election district number two, on the same day, at the house of R F., in said last mentioned district; and in election district number three, on the same day, at the house of S. T., in said last mentioned district: And that the poll of the election will be opened in each district on the day of aforesaid, at sunrise, [or, at the time determined by the hoard, to he not later than nine o'clock in the morning,] and closed at sunset on that day. Dated , the day of , 18 . D. E. L., Supervisor. S. G., Town Clerk. A.B.,) B. J., >• Assessors. R S.) § 1042. Alteration of an Election District. Town of , ss: We, the undersigned, composing the Board of Town Officers of said town, do hereby certify that we have this day altered the elec- tion districts in said town ; and that the said districts are now consti- tuted and boimded as follows : Election district number one is bounded on the west, by the west line of the town ; on the north, by a line passing along the centre of the main channel of the river; on the east, by the centre of the road ; and on the south, by the south line of military lots number and Election district number two is bounded, 1 R. S. m ed.,) 443, § 6 ; 4 Paige, 3ai ; 10 Wendell, 186; aid.,9, 23 Id., 103; 1 Hill, 616; 4 Id., 20. * 1 R. S. (3d ed.,) 444, 445, §5 7-11 TAXES. 575 the affidavit Trustees, guardians, &e., &c., may make a similar affi- davit in relation to the value of property held in trust by them. All real and personal property, the value of wliich shall not be spe- cified by affidavit as aforesaid, must be estimated at its full value, as the Assessors would appraise the same in the payment of a just debt due from a solvent debtor.' V. It is also the duty of Assessors to ascertain the amount of rents reserved on leases in fee, or for one or more lives, or for any term exceeding twenty-one years. The rents are to be assessed as per- sonal estate, to the person or persons entitled to receive them, at a principal sum, the legal interest on which will produce a sura equal to such rents. If the rents are payable in property or services, the Assessors must ascertain the value of such property or services, in money, and find the principal sum which will yield so much interest' 8. The Assessors are to complete their assessment roll on or before the first day of September in every year, and to make one fair copy thereof, to be left with one of their number. They are then forthwith to cause notice of its completion, IR. S. (3deiI.,)459,§S0. TAXES. LANDS OF NON-RESIDENTS. 577 DeEcription of Tract. Quantity of Land. Valuation. ] Lot No. S4, 600 3,000 1 Subdivision No. 2, Lot No. 86, 99 990 A. tract of land situate on road leading . ' from, &c., bounded and described as 43 600 , > follows, to wit; [dfiscrip/io?*,] Dated the day of 18 E. Assessors. § 1047. Notice of Completion of Assessment, <&c. PUBLIC NOTICE. Notice is hereby ^ven, that the Assessors of the town of , \or, of the ward in the city of ,] have completed their assessment roll, for the present year, and that a copy thereof is left with the undersigned E. F., at his dwelling-house, in , where the same may be seen and examined by any of the inhabitants of said town, [or ward,] during twenty days from this date ; and that the said Assessors will meet at the house of K P., in said town, [or, ward,] on the day of instant^ \or, next,] at o'clock in the noon, to review their assessments, on flie application of any person conceiving himself aggrieved. Dated, &c., \as in § 1046.] ' § 1048. Affidavit to Reduce Amawni of Tax. County, ss: A. B., of the town of , in said county, being duly sworn, says, that the value of the real estate assessed to him on the assess- ment roll of said town, for the year 18 , described as [give a brief description^] and valued on said roll at dollars, does not in fact exceed the sum of dollars ; [or, that the value of the personal estate owned by him, after deductmg his just debts, [if ne- cessary insert here, and his property invested in incorporated compa- mes liable to taxation,] does not exceed the sum of dollars; or, that the value of his personal property is not equal to the amount of debts owed by him.] Sworn to, this day of , ) A. B. 18 , before me, j E. F., Assessor. 37 578 NEW CLEEK'S ASSISTANT. § a 049. QertificatCi to Attach to AssessmerU RolL County,) Town of ,\^- We do severally certify, that we hare set down, in the above as- sessment roll, all the real estate situated in the town of , in said county, [or, in the ward, in the city of " , j according to our best information ; and that, with the exception of those cases in which the value of the said real estate has been sworn to by the possessor thereof, we have estimated the value of the said real estate , at the sums which a majority of .the Assessors have decided to be the true value thereof, and at which they would appraise the same in payment of a just debt due from a solvent debtor; and also, that the said assessment roll contains a true statement of the aggregate amount of the taxable personal estate of each and every person named in the said roll, over and above the amount of debts due from such persons respectively, and excluding such stocks as are otherwise taxable; and that with the exception of those cases in which the value of such personal estate has been sworn to by the owner or possessor, we have estimated the same according to our best information and belief. Dated, &c., \as in § 1046.] § 1050. Notice of Supervisor to Collector of Amount of Taxes. To H. C, Collector of the Town of : You are hereby notified that the amount of taxes to be collected by you in said town of , for the current year, is ■ dollars and cents. Dated , the day of , 18 . Yours, &c., L. S., Superyisor. § 1051. Collector's Bond to Supervisor. Know all men by these presents: That we, H. C, A. B., and 0. D., of the town of , , in the county of , are heldr and firmly, bound unto L. S., Supervisor of said town of , in the penal sum [insert double the amount of taxes to he coUeeted\ of thou- sand dollars, to be paid to the said L. S., or his successor in office; to which payment, well and truly to be made, we bind ourselves, and our,*an(i each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , A. D. 18 .* TAXES. 579, Whereas, the above bounden H. C. has been duly chosen Col- lector of said town of : Now, therefore, the condition of this obligation is such, that if the said H. C. shall well and faithfully execute his duties as such collector, then the above obligation to be void ; else to remain in force. H. C. [l. s. Sealed,- signed and delivered ) A. B. [l. s.' . in presence of j C. D. [l. s." G. H. I approve of the sureties named in the above bond. Dated , the day of , 18 . L. S., Supervisor of the Town of } § 1052. Collector's Bond under the Law Providing for the Enroll- ment of the Militia. Know all meii by these presents : That we, H. C, A. B., and C. D., of the town of , in the county of , are held and firmly bound unto L. H., Colonel of the regiment of the en- rolled militia of the State of New York, in the penal sum ^insert such sum as the officer approving the bond may deem sufficient,^ of dollars, to be paid to the said L. H., or his successor in office, to which payment, &c., [as in § 1051 to the *, and then add:1 Now, the condition of this obligation is such, that, if the above bounden H. C, who is the collector of the town of aforesaid, shall faithfully pay aU moneys received by him in pursuance of tho ' act entitled " An Act to provide for the enrollment of the militia, and to encourage the formation of Uniform Companies, excepting the First Military Division of this State" — ^passed May 13th, 1847, as amended by an Act passed December 15, 1847, into the treasury o£ the county of , on or before the tenth day of August nexl^ then the above obhgation to be void ; else to remain in force. Sealed, &e., [as in § 1051, with the approval annexed thereto.^ § 1053. Notice, of Collector. PUBLIC NOTICE. Notice is hereby given to the taxable inhabitants of the town of , [or, of the ward, in the city of ,1 that I, the undersigned, the Collector of taxes in and for the said town, [or. ^ The SuperviBor must file the bond of the Collector in the office of the County Clerk, within six days after its execution. 580 NEW CLERK'S ASSISTANT. ward,] have received the warrant for the collection of the taxes for the present year; and that I will attend at mj dwelling-house, [or, at the house of R. P.,] in' said town, [or, ward,] on Thursday of each week, for thirty days from the date hereof, from nine o'clock in the forenoon until four o'clock in the afternoon, for the purpose of re- ceiving payment of taxes. Dated , the day of , 18 . H. C, Collector. § 1054. Warrant of Cmmty Treasurer. To the Sheriff of the County of , greeting : The people of the State of New York command you to make of the goods and chattels of A. B., in your county, the sum of dollars, being the amount of a tax assessed to the sai'd A. B., in the town of , and county of , under and in pursuance of the provisions of an act, entitled "An Act to equalize taxation," passed May 13, 1846, together with one dqUar for this warrant; and if sufficient goods and chattels cannot be found in your county to make the said sums of money, you are required to levy the same of the lairds and tenements, real estate and chattels real, of the said A. B., whereof he was seized on the day of , 18 . And you will pay over the moneys collected by virtue of this warrant, to the undersigned, the Treasurer of the county of aforesaid, on or before the day of , 18 . J. C. D., Treasurer of the County of CHAPTER XLin. TOWN AUDITORS. PRACTICAL REMARKS. 1. The Supervisor, Town Clerk, and Justices of the Peace, or any two Justices, of any town, constitute the Board of Town Auditors, for the purpose of auditing and allowing all claims payable by such town. The Board are required to meet annually, at the place of holding the last town meeting, on the last Thursday preceding the annual meeting of the Board of Supervisors of the county.' 2. Accounts for services and disbursements presented to the Town Aiiditors, must be made out in items, and accompanied with an affidavit, as in the form hereinafter given. The affidavit must be made by the person presenting, or claiming, the account, and must be attached tO; and filed with the same.^ 3. The board must annex to each account audited by them, a cer- tificate in duplicate, specifying the name of the person in whose favor the same is drawn, the nature of the demand, and the amount allowed. One copy of the certificate is to be filed with the Town Clerk, and the other dehvered to the Supervisor, to be presented to the Board of Supervisors, who will order the amount to be collected in the town.' 4. It is the duty of boards of town auditors, to make annually, brief abstracts of the names of all persons who have presented to said board accounts to be audited, with the. amounts claimed by each, and the amounts finaEy audited; which abstracts are to be delivered to the Clerk of the Board of Supervisors and printed with the other statements required to be printed by him'.* 5. The original accounts and affidavits presented to the board of town auditors are to be filed in the office of the clerk of the town. > Laws of 1840, chap. 806; Laws of 1844, chap. 228. Lava of 1845, chap. 180, § 24; Laws of ISa, chap. 490. ' Laws of 1840, chap. 805. • Laws of 1847, chap. 4SS. f 582 HEW CLERK'S ASSISTANT. FORMS. § 1055. Certificaie of Town Auditors. County,) Town of ,p^- We, the undersigned, composing the Board of Town Auditors of said town, do hereby certify, that we have this day audited and al- lowed to E. F., Commissioner of Highways of said town,' by whom the foregoing account has been presented to us, the sum of dollars, as and for his services as such Commissioner, \insert, and the disbursements necessarily paid out by him in the execution of his duties, if necessary\ up to, and including, the day of instant; and that we find a balance of • dollars and cents to be due by the said E. F, to the town of \or, as tlie balance may be."] Dated at , the day of , 18 . A. B., Supervisor. C. D., Town Clerk. G. H., j T ,. § 1056. Affidavit to attach to an Account.^ County, ss: E. F., of said county, being duly sworn; says, that the items for services and disbursements mentioned in the foregoing account, by him presented [or, claimed,] are in aU respects correct; that such disbursements and services have in fact been made or rendered, or are necessary to be made or rendered, at this session of the Board ; and that no part thereof has been paid or satisfied. Sworn to, this day of , ) E. P. 18 , before me, j A. B., Chairman of the Board of Town Auditors of § 1057. Abstract of Claims Audited by the Toien Auditors. Abstract of the names of all- persons who presented accounts to be audited to the Board of Town Auditors, of the town of , on 1 This form may also be used to verify accounts presented to the Board of Supervisors, or County Superintendents of the Poor. The oath may be administered by the chairman of the Board of Town Auditors, or Supervisors, or by any one of the County Superintendents. TOW-N' AUDITORS. 583 the day of . 18 , mth the amounts claimed by each, and the amounts finally audited. Names. Title of Office, or nature of claim or Bervicea. Am't claimed. Am't audited. John Bmwn, John Doe. Richard Roe, James Thompson, Sec, &c. Justice of the Peace, Town Superintendent of Com. Schools, For supplies to town Poor, MedicEil services) &c., &c. Total, 50 60 60 00 78 00 100 00 40 60 60 00 78 00 85 00 Town of jss: We do hereby certify that the foregoing abstract is correct. Dated , the day of , 18 . D. E. L., Supervisor, S. G., Town Clerk. H. r., ) S. T., &c., &e., Justices of the Peace, CHAPTER XLW. TOWN HOUSES. PRACTICAL REMARKS. 1. The electors of any town in this State, in which there shall not be a town-house, may, at any annual town meeting, by resolution, vote a sum of money for the purchase of a site, and the erection of a town-house, not exceeding hi the number of dollars, twice the num- ber of electors in the town; provided that a notice of the intention to propose such a resolution be posted, within fifteen, and not less than ten, days, preceding the town meeting, in five of the most public places in the town. 2. Upon presenting the action of the town to the Board of Super- visors of the county, they may cause the sum voted to be collected with the other expenses of the town, or require the question to be again submitted to the electors at the next annual town meeting. 3. Conveyances for sites of town-houses are to be made to the towns. The sites are to be purchased, and the houses erected, by the Supervisor, Town Clerk, and Justices of the Peace. The Super- visor, Town Clerk, and the Justice residing nearest the town-house, have the right to control the same. 4. The electors of any town may vote such sum as miay be neces- sary to repair or insure the town-house.' FOEMS. § 1058. Notice of Intention to Propose Resolution. PUBLIC NOTICE. Notice is hereby ^ven, that a resolution will be proposed by the undersigned, at the next annual town meeting of the town of , 1 Laws of 1847, chap. 197 TOWN HOUSES. 585 to be held at , in said town, on the day of next, authorizing the sum of dollars to be raised for tlie pur- chase of a site for, and the building of, a. town-house, in said towa Dated at , the day of , 18- . A. B § 1059. Certificate to he Laid Before the Board of Supervisors, County, ) j';.-.if.n ,» x t'"* Town of ,\'''- '--■J- We, the undersigned, the Board of Canvassers, at the annual town meeting of the town of , held at the house of R. F., m said town, on the day of instant, do hereby certify, that the following resolution was proposed at said meeting, and adopted by a majority of the voices of the electors present and voting there- upon : " Resolved, that the sum of ddlars be raised in the town of , and that the same be, and hereby is, appropriated for the purchase of a site for, and the building of, a town-house, in said town." Witness our hands, this day of , 18 . G. H., ) S. T., V Justicea. &c., (fee, ) § 1060. Sesolution of the Board of Supervisors. Resolved, That the sum of dollars be raised and collected in the town of , for the purchase of a site for, and the build- ing of, a tow^n-house, in said town, in accordance with the resolution adopted by the electors thereof at the last annual town meeting; \or. That the question of raising the sum of dollars in the town of , for the purchase of a site for, and the building of, a town- house, in said town, voted upon at the last annual town meeting held therein, be again submitted to the electors thereof, at the next annual town meeting.] CHAPTER XL7 WILLS. PRACTICAL REMARKS. 1. AH persons except idiots, persons of unsound imnd, and infants, may devise^ their real estate by a last will and testament duly exe- cuted. Such devise may be made to any person capable, by law, of holding real estate; but no devise to a corporation will be valid, un- less such corporation be expressly authorized by its charter, or ■statute, to take by devise. Every devise of any interest in real pro- perty, to a person, who, at the time of the death of the testator, may be an alien, not authorized to hold real estate, vnU be void.' 2. Every male person of the age of eighteen years, or upwards, and every female of the age of sixteen years, or upwards, of sound nund and memory, and no others, may give and bequeath his or her personal estate in writing. No nuncupative or unwritten wiQ, be- queathing personal estate, will be valid unless made by a soldier, while in actual militE^Iy service, or by a mariner while at sea.' . 3. Married women may devise real or personal property belonging to them in their own right, and not conveyed, given, granted, or de- vised to them by their husbandsi' 4. Every last will and testament of real or personal property, or both, mxistbe executed and attested^ in the foUovfing manner: — 1. It must be subscribed by the testator, at the end of the will: 2. Such subscription must be made by the testator, in the presence of each of the attesting witnesses, or acknowledged by him to have been so made to each of the attesting witnesses : 1 2 R. S. (3d ed.) 118, 119, 5? 1-4 j 4 Paige, I ' 2 R. S., (3d ed.) 121, 55 18, 19 j 1 Hoff «22 ; 3 Wendell, 166 ; 10 Id., 379. man's Ch. Rep., 1 ; Id., 202. I • Laws of 1849, chap. 376. WILLS. 587 3. The testator, at the time of making such subscription, or at the time of acknowledging the same, must declare the instrument so sub- scribed, to be his last will and testament. 4. There must be, at least, two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the request of the testator. 6. The witnesses to any will must write opposite to their names their respective places of residence; and every person who may sign the tes- tator's name to any will, by his direction, must write his own name as a witness to the will. , 6. Whoever neglects to comply with either of the foregoing pro- visions, will forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who may sue for the same. Such omission will not affect the validity of any will ; nor will any person liable to the penalty aforesaid, be excused or incapacitated, on that ac- count, from testifying respecting the execution of such will.' 5. No will in writing, (except in the cases particularly specified in the statute,) nor any part thereof, can be revoked, or altered, other- wise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed ; or unless such will be burnt, torn, canceled, oblite- rated, or destroyed, with the intent, and for the purpose of revoking the same, by the testator himself, or by another person in his pre- sence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, must be proved by at least two witnesses.'' 6. Marriage and the birth of a child, subsequent to the execution of a will, operate as a revocation, if there be no provision made for the wife and child. A will executed by an unmarried woman will be deemed revoked by her subsequent marriage. After born chil- dren, not provided for or mentioned in a wiU, or in a settlement, are entitled to such share of the estate of the testator as they would have had if no will had been made.' 1. Fraud will vitiate a will.* 8. Merc imbecility will not avoid a wilL The term '-unsoimd mind," in the statute concerning wills, has the same signification as non compos mentis.' 9. A sound disposing mind, or testable capacity, is any point above idiocy or lunacy.' ' 2 R. S. (3d ed.,) 124, S§ 32,33 ; 8 Paige, 489 ; 10 Id., 85: 26 Wendell, 331, 625; 1 Uenio, 33; 1 Barbour's S. C. Rep., 626 j 2 Id., 40, 200. • 2 R. S. (3d cd.,) 124, § 34 ; 20 Wendell, 457; 1 Hill, 590. a 2 R. S. (2d cd.,) 124, 6, §J 35, 36, 41 ; 4 Kent's Commentaries, (2d ed.,) 520, et seq.; 4 Johnson's Oh. Rep., 506; 6 Paige,-5g0; 7 Id., 99; 1 Denia,27. < 1 Comstock, 214. 1 3 Denio, 37. s 26 Wendell, 255 : 3 Denio, 37 ; 2 Comstock, 498. 588 NEW CLERK'S ASSISTANT. 10. Where the personal estate is not in terms exonerated hj a will, it will be deemed the primary fund for the payment of legacies.' 11. No provision made in a will for a wife, will prevent her from having dower also, unless it be expressly declared to be in lieu of dower, and she assent thereto. A testamentary provision, where the intention is doubtful, though accepted, will not deprive her of dower." 12. Lands purchased after making a will, will not pass by it, un- less it be republished in the presence of the former, or any other two witnesses.' 13. A codicil is a supplement to a will, and must be attested in the same manner.* 14. A codicil to a will causes it to speak from the re-publication.' 15. The term "heirs," or other words of inheritance, are not necessary to the devise of an estate in fee. Where it is the intention to give an estate for life only, the words " during his natural life," or other words to the same effect, must be used." 16. A will is valid, although it contain a devise or bequest to the witness ; such bequest, however, is void.' 17. Three witnesses to a will of real estate are required in Vermont, New Hampshire, Maine, Massachusetts, Rhode Island, Connecticut, New Jersey, Maryland, South Carolina, Georgia, Ala- bama, Mississippi, Michigan, Wisconsin, and Iowa. Two witnesses only are necessary in New York, Delaware, Virgima, Ohio, Illinois, Indiana, Missouri, Tennessee, North Carolina, and Kentucky. In Pennsylvania, no subscribing .witness is necessary, provided the authenticity of the will can be proved by two witnesses : and if a wiD be subscribed by witnesses, it may be proved by the oaths of other persons.' 18. After the lapse of sixty years from the date of a wiU, its execution may be shown, without proving that efforts have been made to procure the attendance of the subscribing witnesses, as their death may be presumed.' 1 1 Oomstock, 120. 2 R. S. (3d ed.,) 27, 5§ 9-U ; 2 Johnson's Ch. Rep., 448; 2 Paige, 659; 8 Id., 325: 7 Coweu, 285 ; 5 Hill, 206 ; 2 Dei.io, 430. » 2 R. S. (3d ed.,) 124i. 5§ 37-40 ; 7 John- eon's Ch. Rep. , 258 ; 4 Kent's Commentaries, (2d ed.,) 528. <6 Johnson's Ch. Rep., 875 ; 1 Hill, 690. <■ 7 Hill, 346. 5 2 R. S. (3d ed.,) 33, § 1 ; 2 Johnson's Cas. 484 ; i Hill, 554 ; 3 Id., 165 j 5 Id., 410 ; 1 De- nio, 165. ' 2 R. S. (3d ed.,) 125, J§ 42, 43. ' 4 Kent's Commentaries, (2d ed.,) 513, 514 » 7 Hill, 476. "WILLS. 589 FORMS. § 1061. Will of Real atid Pergonal Estate. In the name of God, amen : I, A. B., of the town of , in the county of , and State of , of the age of years, and being of sound mind and memory, do make, publish and declare, this my last will and testament, in manner following, that is to say : First, I give and bequeath to my wife, E. B., the sum of to be accepted and received by her in lieu of dower; to my son, C< B., the sum of ; to my daughter, M. B., the sum of and to my daughter-in-law, S. B., widow of my son, R B., deceased; the sum of ; which said several legacies or sums of money, I direct and order to be paid to the said respective legatees, within one year after my decease. Second, I give and devise to my son, C. B., aforesaid, his heirs and assigns, all that tract or parcel of land, situate, &c., [rfescn'Se the premises,^ together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining : To have and to hold the premises above described to the said C. B., his heirs and assigns, forever. Third, I give and devise all the rest, residue and remainder, of my real estate, of every name and nature whatsoever, to my said daughter, M. B., and my said daughter-in-law, S. B., to be divided equally between them, share and share alike. And lastly, I give and bequeath all the rest, readue and remain- der, of my personal estate, goods and chattels, of what nature or kind soever, to my said wife, E. B., whom I hereby appoint sole executrix of this my last will and testament ; hereby revoking all former wills by me made. In witness whereof, I have hereunto set my hand and seal, this day of , in the year of our Lord one thousand eight hundred and . A. B. [l. s.] The above instrument, consisting of one sheet, [or, two sheets,] was, at the date thereof, signed, sealed, published and declared, by the said A. B., as and for his last wUl and testament, in presence of us, who, at his request and in his presence, and in the presence of each other, have 'subscribed our names as witnesses thereto. [ Or, The above instrument, consisting of one sheet, was, at the date there- of, declared to us by A. B., the testator therein mentioned, to be his last, will and testament; and he at the same time acknowledged to us, and each of us, that he had signed and sealed the same ; and we thereupon, at his request, and in his presence, and in the presence of each other, signed our names thereto as attesting witnesses.] C. D., residing at , in county. G. H., residing at , in county. 590 HEW CLEKK'S ASSISTANT. § 1062. Codicil to a Will. Whereas, I, A. B., of, &c., have made my last will and testament in writing, bearing date the day of , in the year of our Lord one thousand eight hundred and , in and by which I have given and bequeathed to, &c., [here set forth the bequest which the testator desires to change :1 Now, therefore, I do, by this my writing, which I hereby declare to be a codicil to my said last will and testament, and to be taken as a pa)-t thereof, order and declare that my will is, that only the sum of be paid to my daughter-in-law, S. B., in full of the said legacy jpven and bequeathed to her ; and that the remaining part of the said legacy be given and paid to my nephew, R. F. : And lastly, it is my desire that this codicil be annexed to, and made a part of, my last '\dll and testament as aforesaid, to all'intents and purposes. In witness, (fee, [asin^ 1061, except that the attestation will read, " as and for a codicil to his last will," &c.] § 1063. domination of Execnitws in, a Will. And lasUi/, I do hereby nominate and appoint my sons, C. B. and M. B., [or, my friends, B. F. and L. M.,] to be the executors of this my last wiH and testament,- hereby revoking all former wills by me made. § 1064. Devise to Hxecutors in Trmt, with Power to Sell, dbc. I give and devise all my real and personal estate, of what nature or kind soever, to E. F. and L. M., the executors of this my last will and testament, hereinafter nominated and appointed, in trust, for the payment of my just debts and the legacies above specified, with power to sell and dispose of the same, at public or private sale, at such time or times, and upon such terms, and in such manner, as to them shall seem meet; provided, however, that no part of my real estate, as aforesaid, shall be sold, at public auction, until after the expiration of three years from the time of my decease. § 1065. Disposition of the Tuition and Custody of Minor Children. And I do hereby dispose of and commit, the tuition and custody of my children, M. B., II. B. and F. B., and every of them, for such time as they or any of them respectively continue unmarried, and ■WILLS. 591 under the age of twenty-one years, unto my wife, E. B., provided she remains my widow ; but if sh§ shall die or marry, during the single life and nonage of any of my said cluldren, I hereby dispose of and commit their tuition and custody to my executors, hereinafter nominated and appointed. § 1066. Provision, in a Will for a Child, Born After the Death of the Tentaior. I give and bequeath to my wife, E. B., the sum of , in trust for any child, or children, by me begotten, which may be born of her subsequent to the time of my decease; which said sum of money is to be paid to such child, or divided equally between such children, when he, or she, or they, shall have arrived at the age of twenty-one years. § 1067. Provision, for Children Bom After the Execution of a Will I give, bequeath and devise, all the rest^ residue and remainder, of my real and personal estate, to my cJiUdren now living, or who may be linng at the time of my decease, to be divided equally between them, share and share alike. § 1068. The same, in Another Form. I give and bequeath to each and every of my children born subse- quent to the execution of this my last will and testament, the sum of dollars, to be paid in the same manner as the other lega- cies hereinbefore mentioned. I 1069. Devise of an Estate for Life to one Person, and Rever- sion to Another. I ^ve and devise all my real estate, of what nature or kind soever, to my wife, E. B., [or, to my friend, L. M.,] to be used and enjoyed by her, [or, him,] during the term of her [or, his] natural life ; and from and immediately after her [or, his] decease, I give and devise the same to my friend, S. T., his heirs and assigns, forever. o93 KEW CLERK'S JlSSISTANT. § 1070. Devise to Trustees, During a lAfe, or Lives. I give, bequeath and devise, all my real and personal estate, of what nature or kind soever, to E. F. and Gr. H., the executors of this my last will and testament, hereinafter nominated and appointed, in trust, for the payment of my just debts, and the legacies and charges upon the said estate hereinafter specified, to be held and possessed by them, for the purpose aforesaid, for and Ruling the natural life of L. M., of the town of , and State of , and for and during the natural life of E. M., infant son of the said L. M. ; and from and after their decease, and the decease of each of them, I give, bequeath and devise, my said estate, to my son, C. B., his heirs and assigns : And I do hereby order and direct, that during the continu- ance of the said trust estate, as aforesaid, there shall be annually paid out of the net income and profits thereof, the sum of to my wife, E. B., in lieu of all dower, or right of dower, in and to my said estate ; the sum of to my son, C. B. ; and the sum of to my daughter, M. B. ; and that the rest, residue and re- mainder, of the said net income and profits, shall be divided equally between my said executors, in lieu of compensation for their services in the execution of the said trust. § 1071. Devise of an Armvxty. I give, devise and bequeath, to my vrife, E. B., and her assigns, for and during the term of her natural life, one annuity, or clear yearly rent, or sum, of . , free of aU taxes and other de- ductions, to be issuing and payable out of the real estate above de- vised to my son, C. B., in equal half yearly payments, at , on the day of January and July, in each and every year as aforesaid ; and I do hereby charge and subject- the said real estate with and to the payment of the said annuity, yearly rent, or sum, of , at the times and in the manner aforesaid; fully empower- ing and authorizing, my said wife and her assigns, provided the said annuity, or any part thereof, shall remain unp^ after the expiration of twenty days from the. time when the same shall be due and pay- able as aforesaid, to enter into all and singular the premises charged with the annuity as aforesaid, and the rents, issues and profits there- of to receive and take, until she and they be therewitli and thereby, or by the person or persons then entitled to the immediate posses- sion of the premises, paid and satisfied the same and every part thereof and all the arrears then due and payable, together with her and their costs, damages and expenses, paid out and sustained, by reason of the non-payment thereof, or of any part thero£ INDEX. A BSTRACT— of claims audited by town auditora, ACCOUNTS— see " TOWN AUDITORS." ACKNOWLEDGMENT AND PROOF OF DEEDS, &c.— practical remarks, * . 9-11 by a single party, known to the officer, 12 by a single party, proven to the officer, 12 by husband and wife, diflerent forms, 12,43 by two husbands and their wivea,__ _ 13 by wife in a separate certificate,... __„.__.. 13 by several parlies, ..__.__.- 14 by one of several parties, „...—.„__....._ H by an attorney, diflerent forms, 14, 15 by an executor, or trustee, 15 by a sheriff,.. 15 by a deputy eherilT, 16 by a party to confirm deed executed during intancy, 16 by subscribing witness,.... . _. —.._._.. .... 16, 17 by subscribing wimess aa to the husband, ana ackuuw ledgmeut by the wife, ,' .....i. 17 by subscribing witness to deed executed by an attuvney, 18 proof of deed wheresubscribing witnesses are dean, _. 18 proof of deed executed by a moneyed corporaiioii, 19 the same by a religious corporation, ' .— 19 acknowledgment in New England States, 20 acknowledgment in Pennsylvania,.. „_.._._„. 20 Bcknowledgment in Michigan, 20 . acknowledgment in Ohio, ..............". 21 acknowledgment in Illinois, 21 acknowledgment in Indiana............ — — SI acknowledgment in Alabama,.. 21 satisfaction of mortgage and acknowledgment, d' 23, 31 satisfaction of judgment and acknowledgment',.... ^,26 application for eubpcena to compel attendance of subscribing witness to a conveyance, and accompanymg forms,.... 2t, <6, 27 forms of oaths on taking acknowledgments, or proving deeds, AC, - 27 ftCK.iOwIolgmcnt of pension voucher,..— ...-—.I acknowledgment of notice of exemption of homestead, 3^^, 331 5*?4 INDEX. ADMIMSTIIATOR&- Paob. fees of, ....... .... j..m^ .... .. m^.^ ^6 deed from,........................—..-.— .— . ....... 16^! , satisfaction of mortgage by,—..... 2S description of in suit,... . .....' ... 3i^ ADVEUTISEMENT OF SALE— on a chattel mortgage,.....*-.- — -.......— —.—.-—... 120 of town superintendent of common Bchools. .., 528 of collector of school district, 539 of constable, .. -— .. -.....—..—....—-. ..— . 560 where stray is not redeemed — ..— .. . 563 on foreclosure of mortgage or le&i eoate^.... 184 .i(:i;eements and contracts- pvactical remarks, 28,29 general form of an agreement, ... — — 30 agreement for the sale and purchase of personal properly, - 30 for building a house, 30 for re-bullding mills, . 3l for making flour barrels, 32 for the sale of wood, or stone,— -.—......-.-— — .. — .— _.- 3' 2S1 260-266 241 i64 U 207 430 212 B63-555 555,556 556 556, 557 557 557 658 633 659 669 659 660 660,661 INDEX. 601 CONX'Ei'ANCES BY DEED AND MORTGAGE— ykqk. practical remarks, . 149-154 simple deerl, 155 quitclaim deed, difTerent forms, i66, 165 warranty deed, different forms, 156,167 full covenant deed, difforent forms, . 157, 15S deed of land subject to mortgage, j._ 159 corporation deed, - 159 deed of niongaged premises, on foreclosure by advertisement,. 160 deed by guardian, 161 administrator's deed, 162 executor's deed, -_...-_-..-...-_.-..._. — 163 deed of commissioners in partition, ..... 164 — deed with trust habendum clause, _ 165 deed by trustees of an absconding debtor,.. 166 sheriff's certifi''.at6 of the sale of real estate on execution,, .... 167 affidavit of redeeming creditor, 167 sheriff's deed on sale under execution, . 168 sheriff's deed in partition,... ... .__ i.. 169 sheriff's deed on foreclosure, .- 170 deed of a right of way, _ 171 conveyance of right of way for plank road,. 466 release by supervisor and commissioners to plank road com- pany, 467 deed of a water course, - -__.,_ ... 171 deed of confirmation, different forms, 172, 173 lease andrelease, ~_-. 173, 174 deed of exchange of lands,.... _...__.,_ 174 deed of pew in a church, ... .. 175 deed of gift, different forms, 272 agreement respecting party wall, 40 mortgage, usual form, 175 for part of purchase money, 176 with covenant to pay, . 176 with fire clause,. 176 with interest clause, .... — _. __— 177 by husband and wife, 178 by corporation,.—. - — ■- ..... — ... 179 to corporation, - - 180 as security on note,... -. 180 to secure indorser, 181 to executors, 182 on lease by an assignee,„ _ __., 183 notice of sale on foreclosure of mortgage by advertisement,... 184 affidavit of publication of the notice, 185 affidavit of posting, 185 affidavit of serving notice on parties interested, 186 affidavit of auctioneer, - 186 notice to accompany copy of notice of sale, .- 137 see "acknowledgments,etc.," "assignments," "covenants," "Homestead Exemption Law," " Landlord and Tenant," and Receipt and Release." CORPORATIONS— see " Banks and Corporations.*' 603 nmEX. CORONERS— PAOF. practical remarks, -. 188, 189 feea of, 1 243 oalhs to he administered by a coroner, _— ., 190 inquisition, different forms, 190, 191,192,193, J94,J95 warrant to be issued bya coroner, 196 * examinations before coroner, or coroner and jury, 196, 197 annual statement to board of supervisors,—. ......... 197 COUNTY CLERKS- fees of, 238 see "Clerks and Criers," "Debtor and Creditor," "Fer- ries," Mechanics' and Laborers' Lien," " Naturaliza- tion," " Official Oath and Bond," and "Schools." COUNTY JUDGE— fees of, 244 see "Acknowledgments, etc.," "Debtor and Creditor," " Dower," " Highways," " Landlord and Tenant," " Luna- tics," and Plank Roads." COUNTY SUPERINTENDENTS OF THE POOR— fees of, , an official bond, -_,-_-_,.... 473 see "Apprentices and Servants," " Poor Laws," and "Town Auditors." COUNlfY TREASURER— fees of, 1 .-.__-.._.._...__.-_„... 245 warrant under acl of 1346, -_....-_..-..... 680 COVENANTS— practical remarks, 198, 199 general forms of covenants, 199, 200 covenant of seizin, different forms,.. _. _ _ 200 several covenant of joint grantors, 200 covenant against incumbrance, _. -. 200, 201 for further assurance, _..._. ._........_ 201 for quiet enjoyment, -._. 201 by tenant for life, and tenant in fee of the reversion, 201 mutual and dependent covenant,.. .._...'. ..._.._... 2^2 independent covenants, -.- 203 CRIERS- fees of, 246 see "Clerks and Criers." DEBTOR AND CREDITOR— practical remarks.............. ......... .—..... 203-206 letter of license to a debtor, 20S composition with creditors,. _._._...... ... 207 petition of insolvent and his creditora under two-third act, and accompanying forms, - WS, 209 order for creditors to show cause, .. 211 notice to be published, - 211 notice to be served, - - 212 proof of service, 212 order for assignment, . 212 assignment and acknowledgment, . 213 oath of assignee, and notice, — 214 certificate of assignee, and affidavit of execution, - 214, 2'f certificale of county clerk that assignment has been recorded,. 216 INDEX. 603 DEBTOR AND CREDITOR— PAfli. discharge of insolvent, .-— 215 petition under non-imprisonment act, after suit commenced, and accompanying forma, 210,217,213 order for assignment, _„ _ 215 assignment and certificate, _. _ 218,219 discharge, _ ,__ — - 219 affidavit on application for appointment of trustees of the estaie of a debtor confined for crime, _ - 220 appointment of trustees and oath,.. ..... 220, 221 see "Receipt and Release." DEEDS— see "Agreements and Contracts," " Conveyances bt Deed AND Mortgage," and "Gifts." DISORDERLY PERSONS— see "Poor Laws." DISTRICT CLERKS— see " SoHOOLS." DISTRICT COLLECTOR— see "Collectors of School Districts." DOWER— practical remarks, . 222-225 assignment of dower, 225 release of, _ 226 petition for admeasurement of,.,,..... _.._._ 226 notice to annex to petitions, 227 notice by heirs, or owners, _ __,. 227 petition for admeasurement by heirs or owners, 227 order for admeasurement, ..- 227 oath of commissioners, , 223 commissioner's report, ,.. 2!^ appeal to supreme court, and bond ^.... 229 see " Husband and Wife," and "Wills." DRUNKARDS— see " Poor Laws." DUE BILL— form of, for goods, ....._....„.... 103 EXCHANGE— see "Bills of Exchange," etc., and " Conveyances," etc. EXCISE- practical remarks, 230,!^! notice of special meeting of board, - _ 2M form of minutes of board of excise, — j-. 232 license to tavern keeper to sell spirituous liquors, . . 233 bond of tavern keeper, — 233 license to tavern keeper under actof 1843, — 234 bond on obtaining above license, - 234 grocer's license, - 234 grocer's oond,....-.........— „— — — 236 see " Poor Laws." EXECUTION— see "Highways," Justices' Courts," "Landlord and Ten* ant," "Mechanics' and Laborers' Lien," "Poor Laws,'* ''Service and Return of Process," and "Taxes." fi04 INDEX. EXECUTORS— X «. fees of, ..... . .. Ma nomination of in willj , 590 bond to, i 124 deed from,__-l _.—_—-— , 163 mortgage to, - 182 acknowledgment by, » - Iff satisfaction of mortgage by,, 22 description of eiiit, , , 343 lease of legacy, — . 513 legatees' bond, 125, 126 EXEMPTION— of homestead from sale on execution,.... - 329-333 of personal property, - 554 from taxes, — .__ __. 573 waiver by tenant,_____--. ...... _ 387 FEES OF OFFICE RS~ practical remarks, , - 236, 237 arbitrator's" fees, -___- _ 237 assessor's fees, . ._._....__. — 233 auctioneer's commission,____—__j— _-.-.. — — 238 broker's fees, -— — -. 238 county clerk's fees, _ „ 238 clerk of the board of supervisors,- 240 'commissioners to take testimony in justice's courts, , 241 commissioners to make partition, or admeasure duwer, 241 commissioner of deeds,.. _ __ _ "^ 241 commissioners of excise, 241 commissioners of highways, 241 commissioners to loan deposit fund, .<..._._. 245 constable's fees, „ .__._ - 245 coroner's fees, ___.__.._ ._.: - 243 county judges' fees, in special cases,.... 244 county superintendents of the poor,...-...-. . 245 coxmty treasurer's fees, 245 crier's fees, - ,._ _ 246 executor's and administrator's fees, .■ 24P fence viewer's fees, -— ^ ._ 246 juror's fees, _. 346 justices of the peace,.... . 247 notary's fees, _. -.._ _ - 24S overseers of the poor, - _ 249 overseers of highways,.. 250 pound master's fees, _..._._.._ 250 printer's fees, 250 referees' fees, 250 register of deeds in the city of New York, 250 school district collector's fees, 251 sealers of weights and measures, Z _ _. 251 sheriff's fees, .4 251 supervisor's fees, iL. 254 *))iTrogate's fees,..' 255 surveyor's fees,-..........— ._—.-.-— —— . 257 town clerk's fees, ...... ..— .. 253 town collector's fees,.... . 25S INDli:x. 605 FEES OF OFFICERS— paob trustees of debtora, — —-—«—.-...„-._„ ._„.__ 259 witnesses' fees, __—._—-_—_...__..».„„ .— .„. _ 259 FENCE VIEWERS— practical remarks, - _ 260-262 ^ certificate where stray is not redeemed, 263 of charges for keeping strays, _ 263 of value of fence built by an adjoining owner, 263 on hearing disputes between owners of adjoining lands, _ 264 t of damages whei-e division fence is out of repair, 264 where cattle are distrained doing damage, 265 certificate of consent to remove division fence, and notice, __.. 2S5 certificate that sheep or lambs were killed by dogs, _ 266 see "Strays." FERRIES— practical remarks, ._ * aw, 268 application for a ferry, 268 notice of the application, _ 269 recognizance, : J 269 license, , 270 clerk's certificate, _., t 270 FORCIBLE ENTRY AND DETAINER— see "Landlord and Tenant." FORECLOSURE OF MORTGAGE— notice of sale on chattel mortgage,, 120 advertisement of eale on foreclosure of mortgage on real estate, 134 affidavit of publication, _ 185 affidavit of posting, ___. 185 affidavit of auctioneer, »_.. _. 186 notice to persons interested, _ _ 187 deed on foreclosure, _,-_.. .„ 160 GIFTS— practical remarks, __._... 271 deed of gift of personal estate,.— .— .....—..._ 272 the same, of real estate,—, „_.. 272 G HANTS— see "Conveyances by Deed and Mortgage," "Gifts," and "Landlord and Tenant." (.TARANTY— see "Bills op Exchange and PRomsaoRY Notes." GUARDIAN- HIGHWAYS— ^^^^ AA-«^ -t6 jointure, in lieu of dower,......., 327 articles i>f separation, —-.......-.....__..„ ;^ see " Dower," and "Wills." INSOLVENT LAW— see "Debtor and Creditor." JUDGMENT— satisfaction of, . „ 24, 2E release of real estate by judgment creditor, 512 assignment of judgment, .-....„. 77, 78 HOMESTEAD EXEMPTION LAW— practical remarks, 329, 330 clause in a deed of property to be exempt, 330 notice to county clerk and acknowledgment, 330, 331 release or waiver of exemption, _.-..._._.._-, 331 oath to jurors by sheriff, 331 certificate of jurors setting off part of exempt premises, 332 certificate that property cannot be divided, 332 notice of the sheriff to debtor, ' 333 JURORS- feesof, . 246 see "Highways," "Jubtiobb' Courto," and "Landlord and Tenant." JUSTICES' COURTS— practical remarks, . 334-341 summons, 342 atlidavii for short summons, different forms, . 342 description of parties suing. in a particular character, .... 343 <308 IJSDEX. JUSTICES COTTRTS- aflidavit for warrant in an action for wrong,— —————— —_- the same, in an action on contract, security on issuing warrant, or ehort summons, different faims, warrant in a civil action..--—. .' -_._._ application for an attachment, and forms of affidavits, .. bond on attachment, _. .-.._.. — .- attachment, - ..._..._-..-__..... bond on adjournment, dilTerent forms, .___.__.. affidavit of justification of bail, _. complaint in an action arising on contract,— _._. complaint for injuring personal property, €omplaint for breach of warranty, complaint for fraud or deceit,— -.— „..—... complaintfor conversion of personal property, complaint for injury to real property,— _.._..— .... — compldint by an assignee, ^ - answer of defendant, ....... .. answer, with notice, .^ .___ - oaths on application for adjournment, ~. i examination of witness, on defendapt's application for an ad- journment,-.^... ..........-....-..— L ....-.......—.. Bubpoena,-.--i.. -.-..- .—1-—.™ subpoena, on application for an attachment, subpoena for special sessions,.—. _ ._..—. . affidavit of service of subpoena, uj . ........ oath to party proving service of subpoena, attachment for a witness, notice of the application for a commission, and necessary oaths, , commission, and forms for the commissioner, venire, and oath on objection to the service by a constable, forms of oaths on the trial of a cause, .. written confession of judgment, and affidavit, transcript of judgment, execution, and renewal,.— - — _^._ complaint to obtain, surety of the peace, and other forms on application for peace warrant, ...^ complaint for assault and battery, and warrant, : general form of a warrant, - complaint for larceny and warrant, complaint for murder, different forms,.. complaint for poisoning, .- ..-_.. C:(Smplaint against accessor)' after the fact, - complaint for arson, different forms, . complaint for setting fire to grain growing, complaint for manslaughter, . ... complaint for killing an unborn child, different forms, complaint for rape, different forms, ..... ..........^ complaint for assault with intent to commit a rape, complaintfor forcible abduction of female...... -^.-..- complaint for enticing away female under fourteen yeara, complaintfor mayhem or maiming, complaint for child stealing, complaini fnr abandoning child, -. cdmplanii lor shooting at witlt Intent to kill, &c.,.. — coniplamt for as^^auii with deadly weapon,............— .... PAOB. 343 344 344 345 345,346 346 347 348 348 349 349 349 350 350 350 351 35L 351 352 352 353 353 353 354 354 354,355 355,356 357 357,358 358 359 359, 360 360, 361 361, 362 362 362, 363 363, 364 363 364 365 366 3G6 366 367 367 3G7 368 36S 3fib 369 369 INDEX 609 JDSTICES' COURTS— complaint for poisoning food, -._.. conii.laint for poisoning well, complaint for assault with intent to rob, complaint for burglary, different forms, complaint for constructive burglary, ., complaint for forgery, different forms complaint forpassing, or offering, coimierfeit bank notes, complaint for counterfeiting, or altering, bank notes, complaint for obtaining property by false token, or by falsely personating another, , _ complaint for obtaining money or property, by false pretences, complaint for robbery, _ complaint for embezzlement,. '. complaint for receiving stolen goods, complaint for perjury, . .complaint for bigamy, complaint for knowingly marrying another's wife, complaint for maliciously poisoning an animal, complaint for malicious trespass, or girdling trees, complaint for procuring abortion, complamt for making an affray, complaint for cruelty to animals, complaint for a rout or riot, . complaint for selling unwholesome food, complaint for disturbing religious meeting, complaint to obtain search warrant, and warrant,—...^ oath of complainant, or witness, on a complaint, recognizance injustices' courts, record of conviction at special sessions, commitment from special sessions, _ _ 0ce "Acknowledgments," etc., "Apprentices and Servants," "Fees op Ofpicbrs," " Highways," " Husband and Wife," "Landlord and Tenant," "Oppioial Oath and Bond," "Pension Vouchers," "Poor Laws," "Service and Re- turn OF Process," " Town Auditors," and " Town Hooses." JUSTICES OF THE PEACE— fees of, .-....-.. ........ ... see "Justices' Courts." LABORERS— see " Mechanics' and Laborers' Lish." LANDLORD AND TENANT— practical remarks, . • . 1.......... landlord's certificate of renting, . . tenants' agreement, _ security for rent, landlord's certificate tenant not to underlet, &c., tenant's agreement not to underlet, i tenant's agreement and pledge of pro))eriy, landlord's certificate and tenant's agieement under exemption act of 1842, agreement for lease,—...—. lease and chattel mortgage, agreement between housekeeper and lodger, indenture of lease............. .. 39 FAoa sro 370 370 371 372 372,373 373 373 373 374 374 374 375 375 376 376 376 376 377 377 377 377 378 378 378,379 379 379 380 380 80 3S1-385 386 386 387 390 391 '''^ INDEX LANDLORD AND TENANT— PAOS. farming lease on shaTes,.„. :.. 392 surrender of a term of years, -..' 393 surrender of lease to the lessor. .^- 394 conveyance by lease and release, -,-j 173,174 mortgage on lease, _ 1Q3 assignment of lease, i 80, 81 power of attorney to collect renis,.^..-. 504 notice to quit, by landlord,...!.:-...-.)- 394 notice to quit, by tenant,.;.!... -___.-_. j- 395 notice to quit, where commencement of tenancy is uncertain^.. 395 ' ' notice to quit or pay double value, 395 ■ '-'j notice of intention tojs-enternunder law of 1S46,_. 396 affidavit of holding -over, 396 summons lo remove tenant 'holding over^ alid- other forms ne- cessary in this proceeding,—..;.-.^ l 396, 397 affidavit of default in paying rent,.w*.' . 393 summons and other form8>m.preceding case,—.. . ^8, 399 affidavit to oppose issuing warrant ,of removal. ^-^^^ 399 precept for a jury whpre the removal is- opposedv and othcsr forms on trial before jury,—. . 39? 400 security for.rent, on proceeding for non-paymem 4U0 notice to Temave, -in case of tenancy at will, 401 affidavit for, summons against tenant at will, and other farms in the proceeding to remove, ....«—...-. 401,402 affidavit for_appeaI,to>county court, ;.-.. . 403 notice of appeal. ..............^ ^.. 404 undertaking an appeal, ,-.-,-„„ ,. . 404 petition and.affidavit wher^ premises-are. vacaLuil,... 405 notice and record of justice,.... — »-- 4(^,406 bond on appeal, .-»«,^ - 407 notices to justice and landlord^,^ r— .-.^.^ -. 407 complaint for forcible entry,. and affidavit,-.^.u..^ „ 408 precept to summon jury of inquiry, and other fonn»,-L..^-,. 403,409,410 venire for petit jury in preceding case^ ._.;.. ,^ 410 warrant to make restiitiUtioak...^^-i .;.. ».„..: .^ , 411 complaint for forcible detainer, or holding out, and affidayti^-. . _. ^ 412 see **ACKH0WLBD9MBNTS," BTO. LEASE— forms of, 3fi5, 386; 3S7 339,391.392 LEGACY— power to receive ........ 604 release of, -.......—..-... . ..- .. . . ._ 513 bequest of/in will,..i.....^... . .— .. 689 LEGATEE— bond of, - ._ 125 the same before suit, . ............. . ........ 126 power to receive legacy, ......^.... ........ 604 release of legacy, . ...1.^................ 613 bequest of legacy in win,.....................^^_„..^...„ 660 LETTER OF ATTORNEY— -^' see •* Powers OP Attoenbt.** - •- - ' "' ■ ' LIBRARIAN- ; ; !. 7» : see "Schools." „'. • i INDEX. -'* 611 LICENSE— PAOB. letter of, to a debtor,... — — — .l.._...„ .„—._.. 21j6 of tavom keeper to sell Gpirituoii? liquors, „„.,. 2^ of tavern keeper under act of 1843, . ,. 234 grocer's license, . ^ ^^ 234 '^ to keep ferry, -,--,.-,, 270 I.IEN— see "Bills op Salb," etc., " Landlorp and J^NXstT^'an^ . "Mbohanxos' and Laborbrb' Lmn.V , Kr-. ^. ^, ^ J >- / ^r .,|- -^/ LUNATICS— ' ^ ■ ' ' ' , j ^ practical remarka»„„,„*.,„, i/— .. 413, 414 request to superintendent of the,asylupi,.„„^*...__, .... 414 ^ certificate of physicians, to.accpmpanyjiequeBt,..^ 414 application to.county. judge, and .affildaYJt»«*-r 415 order of judge on the appIiGation)...i..»,..^ .—_'-. ,- 41S subpoena and other forms on the inquiry before ths judge,.... _. 416,417 warrant to confine lunatiCf..,...-^.,.,...,.^^. -...-. - ^ 485 lURRlAGE-^' form for the ceremony of, ,p,,. ,......,..,„,.-..... ^ . ,. 322 certificate of marriage, 322 acknowledgment, or proof,.of certificate,., ,—.«■? 323 oath of witness to a marriage, or certificaie, _ 323 articles of marriage,^...,.„.._ 323 tnarriage settlement,.-.-.^.-,. ------ -^ 324 ante 161 toexecutorB................. ..__-_.-.-. .— 182 on lease by an assignee - 1S3 612 INDEX. NORTGAGE— paos. assignment of, difibrent foniu,.^... ..—..»..« 79, 60 lease and chattel mortgage,.........^ — ..... . 366, 389 forme on foreclosure of, by adrerlisement,.... — . — . ..184, 185, 1S€, 187 NATURALIZATION— practical remarks, > — — .- 421 426 declaration of intention, and clerk'^certificate, ... 425 oath of alien, ! — 426 affidavit of alien under eighteen at the time of his arrival,.... 426 oath to support constitution, &c., .« 426 proof of good behavior,—. .— . . 427 declaration of intention to become a citizen for three years past, .. 427 certificate of citizenship, — 427 deposition of alien in order to hold real estate, .....•• 423 NOTARY— fees of, 349 forms of protests, notice, and certificate of service, .. 108, 109, 110 general form of notarial certificate, ... ... 110 NOTES- (Tih^T"'' t"^" OATH— '^^• see "Clerks and Cbiebb," " Highways," "Jcsticeb' ConRTS," "Landlord and Tenant," "Official Oath and Bond," and "Poor Laws." OFFICERS- Bee " Fees of Officers," and " Official Oath and Bond." OFFICIAL OATH AND BOND— practical remarks,-... . .. —.-.-_—--...-..... 429 official oath, ,. -_— . 430 notice of acceptance of a town office,— .. ..... ... .. 430 , constable's bond, .... .. ....... . - . 430 sheriff's bond, J 430 oath of sheriff's sureties, t......... __. 431 bond of a deputy sheriff. 431 general form of an official bond, 432 ORDERS— forms of,.. _« . ...I.. ........ .. lOS OVERSEERS OP HIGHWAYS— notice of acceptance of office,...........^........„. ._ 430 fees of, .._....................................._ 250 see "Highways." • OVERSEERS OF THE POOR— oath of office, 430 fees of, 319 see "AprRENiiCES and Sbbvants," and " Poor Laws." PARTITION— deed of commissioners, ......... ...:......_. ...._ 164 deed of sheriff, ..... . . 169 fees of commissianers, Ml PARTNERSHIP— practical remarks, 433 43S articles of co-partnership, general form, 436 the same, between country merchants, .. 437 agreement to renew partnership,..'. . 439 INDEX. PARTNERSHIP— a^ement of dissolution,...-— „,-_..,_.-_._... ... certificate of limited partnership,.... ._._- .. acknowledgment of the certificate...... -—--.-__. affidavit of general partner....... order for publication of notice,.. ;. notice to be published,..^ . PATENTS- Dractical remarks, . . 442, peUtion for a patent, Bpecification, different forms, . oath to specification,.. - application for patent for a design, certificate of deposit of patent fee, ... .... withdrawal and receipt, Burrender for re-issue, assignment of patent, ditferent forms, 447, •disclaimer, ^ ,._ caveat, - addition of new improvements,.... . . . oath on restoring drawings, PENSION VOUCHERS— ,j ' practical remarks, .. ... . affidavit of pensioner, magistrate's certificate, where pension has remained unclaimed for fourteen months,. ..._........ .......... ....._... certificate of the clerj^ . power of attorney to draw pension, and acknowledgment, oath of the attorney, ..... affidavit of guardian of pensioner, affidavit by a widow, a pensioner, « a^davit of a widow under act of 1843, oath of identity for the widow or child of a deceased pen* eioner......... ...... ............... .. — power of attorney for widow or child of deceased pensioner,.. certificate of court to death of pensioner, evidence where certificate is illegally withheld, certificate of magistrate and clerk, PLANK ROADS— practical remifc-ks, - -. notice of subscription, ... .— articles of association,.... . - scrip certificate, affidavit of amount of stock paid in, . notice of application to board of supervisors,.. conveyance of right of way by owner,.... consent of inhabitants............. .- ..... release of right of way by supervisor and commissioners, acknowledgment of a survey, notice to pay in installment,.... proxy, notice of drawing jury to assess damages, notice of meeting of jury, - POOR LAWS— practical remarks, bond of county superinteadent............. ..-....-—»•— — 613 FAGI. 439 439 440 440 440 441 443,444 444 444,445 446 446 447 447 447 448,449 460 460 461 461 462,463 464 464 466 465 455 456 466 467 457 463 468 468 469 46(M64 464 464 465 466 466 46S 467 467 463 468 95 468 470-473 473 477 614 INDEX* rOOR LAWS— PAOS application to compel the support of a poor relative, .. 474 notice of the application, aha'affidavit of service, 474 warrant to seize goods of an absconding father, husband or : lnoth"er,-afladCher forms in the proceeding, 7^- 475, 47» ordet to discharge warrant and restore property,.,.. . ...-. 476 notice from ohe town to another to provide for the support of a pauper, : ? - notice that the seltlemetit will be contested, and other fonns,im the irial before the superintendents, -.-,-^-,.___._.-_. 477, 478 Bup'eririfendent^s notice thai paiiper will be supportea at the expense of a town, . 478 decision of superihtehdentJa oii re-examining settlement, _ 479 certificate of BUpeririteriderit that a person is a county pauper, 479 notice of hearing on' the ' certificate7betbre the boarij, and other forms on the investigation, . 479.480 order of overseer to remove pauper to county house, 481 certificate 'of keeper of poor Tiouse ftii: expense of removal,,.. 481 superintendent's order to expend over ten dollars, 481 notice of iinproper removal of pauper from another county,-. 481 annual report of tlie superintendents to the secretary of stEtte, 4SQ supervisor's report for a town, where all the poor are not a county cliarge, -.— .- 483 complaint against a. beggary -or 'wtgranV- "--—-— — 483 warrant, record of-cenvietion, and commitiiiem'on the aame,.. 4ffls 484 warrant to commit a CMld'td the county hou6e,--i. L.— 485 consent by overseers-to bind'ehildj'.v.-'-.— .^ - -'-.. 50 warrant to confine a liHiatiCjiL-^ii._—.i-. -. 485 designation of habitual drtinKard, and notice^ 1 — .^» 486 notice toovereer that-Aefact-of drunkenness wr!rbd tried by a JU17, and othei'-forfflsnecfeasaiy bn the trial, „i--_*-. -:—-..' 486, 437 xecution against the drunkard, .-- . 487 -xecutionagainst the overseer, i___i-_^ „ 488 revocation of overseer wtiere dirunkaird Reforms, ' 488 complaint against a-disorderly- person, and- recognizance, '.^ 488, 489 discharge of disorderly person, -_i- I- 489 jailer's report relative-to'di&tti'derly' persons,— „.__ 489 applicstion-of superintendent, or overseer, in case of bastardy, 490 examination of mother,- different forms, -. _ 490 warrant to apprehend reputed father, and subpoena, -.... 490 bond onadjournmentjiLi,— -iiiiiii— iiiii^---*._i. _ ^ 491 order of filiation on arrest in same-county, .-.i. 492 bond on order of filiation,-....-::.-;.!^. -..;.- -.-4. .. 493 warrant to commit- putative father, :-i._^._:.-i.^ 494 warrant to release putative fathet from jail,-. _. 494 indorsement on warrant ttf'beteiecUled'in a foreigfl county,.-. 495 indorsement of justice-in foreign county, ^ 495 bond on arrest in foreign county,- and cej^lficat^ Af discharge,. 496 order of filiation- in the absence of rtfpul'tfd' fathfer arrested m foreign county,i-.--id.-^_ij.i-— ..i-.ji'.wi*-^.--— .^--....-i 496 warrant to commit mother refusing foidi&clbse name of father,. 497 summons where mother of bastard-has property in her ow:^ right -.-. ■—■ ii...i— .*wj.^w..«.--.u 498 order to compel mother to support bastavd child,u'-i.^i.t..k-i...^.. 498 warrant to commit mother for not executing bond, 499 warrant tosizee property ofabsoonding fatheT,..A««>.^i,^i^...i.. 5U0 INDEX. 615 POOR LAW&- PAOB onlcr reducing sum m ihe oi-der of filiation^ __.._;, .^..t-.i...... 500 notices of appliciiii'iii lo ihc conn of sesaiona to increase, and reducn sum, ._ 601 notice of appeal iVnni orilcr uffiiiation,-— —.-—-_— __-._.— 601 see "Appiientices and Seiivants." POVND MASTERS- fecsof, 260 see "Strays." POWERS OF ATTORNEY— praciiciil remarks,-..^ _:.: ;.---.^..-^.. ...... ............. 603 503 genera! fwm ofpowcr of aitunioy, ■...i.—.^i 503 pOWCl' lo collect deb's, - ;.;-■.. 5H-1 to collect rcnta, - 504 to receive a legacy, - 50i to receive distributive share of personal estate, 505 to lake charge of lands, ._ ,__._,_ _ CU6 to transfer stock,... __ 95 to receive dividend, -—- 96 to confess judgment,... ...... ..--.._„...i.. 127 to draw pension, 45o the same by widow or child of deceased pensioner, ^'"^/s general power to transact business,. ..^..^k...;. ^^(j general custom house power,....-.... -...._... ... 607 power to sell and convey real estate, 503 power loclTect insurance* ,.u^ .^. : 607 substitution of an attornoy,^..«>........ &0S revocation of power, ......... .. 508 PRINTERS— fees of, 2SC alTidavitof publication of notice of sale on icortgage, ...... 185 PROCESS— see "Service and Rsturn op Frocbss." PROTIISSORY NOTES— formsof, 106, 107 P ROT E ST— formsof protest, notice, and certificate of service,.... . 108,^^09, 110 fees of notary, ...-.- 249 PROXY— form of,an(! affidavit, 95 oalhof proxy,....— ... { 96 RECEIPT AND RELEASE— praclical remarks, t....^.^..... ..... » . 509, 510 receipt, dinbrcnt form3,.>.i..>wi.^...... , blO, 611 release of all demands, ..^...^i . . 511 special release, ^*..i. . ... .. 511 release by creditor named in an assignment,. ...... 511 release of part of mortgaged premises,.........— k^.;... 612 release by judgment creditor,..*.. ........^ ..4.... 612 please of legacy .* 513 rciease to restore competency orwitncss, dilTcrcnt forms,. ^ 513, 514 release of dower, -, ., ....^...-i— » 226 release by owner of land onalioring highway,.. ....w 299 rciease by supervisor and comnii§a loners to plank ronil coiV' pany. ..^^^.^.^.u.^..*^ ^.b..^^.....i..<...<.i..l 467 release in pursuance of an rward of arbitrators,*.. ^^-.w 71 616 INDEX. HEUEMPTION— PAOR.^ of reai &\ate by jndgment creditor, forms fort................ ^^^ REFEREES— fees of, 250 see "Highways." RELEASE— lease and release, -.: 173, 174 release of dower, ........... 226 of owner of land on laying out highway 299 surrender of term of years, - 393 surrender of lease,,... _._____._.— 394 reteai^ jf all demands,... . — ^ 511 special release,.... ........._........... 511 by creditor named in assignment, 511 * 01 part of mortgaged premises,- 512 by judgment creditor, .... 512 of legacy, 513 to restore competency of witness, diflerent forms, 513, 514 release of party to arbitration in pursuance of an award........ release by supervisor and commissioners to plank road com* pany, .... 467 REVOCATION— of submission to arbitration, 69 of power of attorney,.... . . — . 60S SALE— see " Bills of Sale," etc., " Landlord and Tenant," and "Service and Return op Process." SATISFACTION— of judgment, 24, 25 of moi-tgage, 22, 23, 24 SCIIOOLS- - practical remarks, 615-S24 town superintendent's bond, ._ 524 notice of supervisor to furnish additional security, .... 525 warrant appointing town superintendent to fill vacancy, 525 resolution creating new district...... 525 consent of trustees, . 526 notice to trustees not consenting, and proof of service, 526, SST notice of the first meeting in a district to organize, 527 notuKOf sale of school house by the town superintendent,.... 528 apportionment of proceeds of the sate, . 528 resolutions for the alteration, or formation, of districts, 528,. 529 certificate to teacher by town superintendent................. 629 instrument annulling the certificate, ......... 530 annual report of town superintendent................. .... 630 list of votes to be kept by district clerk, 533 forms of minutes of proceedings of district meetings, 533 declaration to be made by a person challenged at district meet* ing, A 534 resolutions relative to sale and purchase of sites, and erection of school house,... . .. 634 order of trustees for teachers' wages, 535 order for library money, .. 535 account of trustees, and inventory of district property, 535,636 annual estimate of trustees, 636 INDEX 617 SCHOOLS- ootice to be posted on Bchool house door..................... tax list and vurant, ........ ......,: , collector's bond|_-... ........... ..... .... notice that collector will receive taxes,.—............ renewal of warrant, . . ..... . return of collector......... . ._...__.. notice of levy and sale by collector, ..... . fees of colleoior, . ..... verification of an account for costs, ..... . notice to be served with copy of the account, order of board of supervisors, notice to accompany copy of the' order, . annual report of trustees, . the same, where district is formed out of two or more towns,.. . notice of district meeting, different forms, clerk's notice of election of district officers, librarian's receipt, and trustees' certificate, . .., entry of librarian in books belonging to the district,.... .., form of keeping librarian's book, weekly roll, and quarterly list of teacher, teacher's abstract, and account of inspections, appointment of district officer to fiU'vacancy by trustees, appointment of a trustee to fill a vacancy, . appeal to state superintendent, and affidavits, statement where parties agree as to the facts, notice to be served with appeal, and proof of service, answer to an appeal,... SEALER— oath of office, fees of, .. .............. SEPARATION— articles of...... SERVANTS- eee " AppRENTicEa and Sbrvamtb." SERVICE AND RETURN OF PROCESS— practical remarks, . — ........................... forms of returns on summons..................... .... the same, on warrant, . ......... .... . the same, on attachment, . copy of inventory on attachment, bond to prevent removal of goods attached, bond by claimant of property attached......... indorsement of levy on execution, .... .... inventory to attach to execution, ........ .. bond to indemnify constable, ... ...... . . receipt of goods taken on execution, ....... .. constable's advertisement of sale......... ..... return to execution, difierent forms, ................. ., SHEEP— injuries to, SHERIFF— , „ oath of office, bond, . — ..... . ....... ....... bond of deputy, bond of indemnity,.... FAOtL eSG B37 53S 639 639 639 639 251 640 540 641 641 641 643 544,645 646 546 646 646 547 547,548 548 548 549,550 550 551 652 430 251 553-556 555,656 556 656,657 557 557 558 658 659 659 669 660 560,661 266 430 430 431 126 618 moEX. SHERIFF— assignment of bail bondt>.^.i.-.<.-.*.'«i.*tt>^^.-.ia. acknowledgment by Eherifl* or. dftputy.^.»-i^ certificate of the sale of real eetate, affidavit of redeeming creditor)^w>^-^i...«.w.. deed on sale under execution,»», ,: deed in partition^.^.. deed on foreclosure of mortgagey.. fees of} . ....: ...... STEAYS— practical remarks,. ..q. .. i..^....... -^.-. ... . note to be delivered to town clerk,».i.... ... notice of sale where stray is not redeemed, ... receipt of supervisor for proceeds of sale of stray, see " Fbnob Viewers.* . SUBSCRIPTION— to raise money to build church or bridgetw.wBi««fa.......h.... . SUMMARY PROCEEDINGS' TO RECOVER tAND— see " Landlord and Tenant." SUMMONS— see " Justices' COURTS)" and " SSRVibB and'Retdrh op Process.' SUPERVISORS— practical remarks,.. L .......I.;..':.. oath of office,... :;;_...._.. L.: .' .......;....::. fees of, : '.' ; : . j... form of keeping eupfervisor's book,.-. . i certificate on esaihliicttion of his accounts, certificate to accompany copyof entries in town clerk's book,... notice of special meeting of board of excise,.. forms required by the board of excise,..;;.... i.;.-. .... appointment of a commissioner of highways to fiL Tacancx,... report where all the poor are not a county charge, ^i. notice to town superititendent to 'furnish addittonalsecurity,... receipt of proceeds of sale of stray, - approval of sureties in a bond,i..--ii...-.^-.-.i.....i. .___... list of jurors, ..^..^ ...... ■ ^ list of grand jurors, ............ tax bill, notice of election,... ■^--'*' alteration of election district, division of a new town into election-distri6ts,%-...i....i. notice .of meeting to fill vacancy in office of inspector of elec. tions, .....i. ............... .-...^-^- appointment of inspector of elections to fill'Tacancy,...^ affidavit .verifying account,....*.. ...... ....-.-..*.-..... bond of commissioner of highways and approval, =.-.-.. i._-.6.- ■ statement and estimate of Gommi8elon6r,.for8upervisor........ overseer's list of non-resident-lands for,..«.*....w... ........... constable's bond, and app^ovaH.u.1Iu^...w.... ......^ town superintendent's bond, and approval, see " Excise," "HisHWATB," kTaxbs,"-" Town Auditdrb; " and " Town Hooses." SURRENDER— of a term of -years,..-... .-. ......k.v.-.u....... of a lease tft-the lessor,... -..b.^. ..>....-..'...-.-.. . .... of patent for re-is»u©,-.a=.-....ik..i»»-...-.-.-.... PAOB. 83 IS, 16 16? 167 168 169 170 662, 663 663 563 663 42 664-667 667 SS4 667 568 668 232 232^35 283 483 525 663 669 669 670 670,676 670 671 571 672 6?2 582 284 286 287 430 393 447 INDEX. 619 SURROGATE— feea'of, ._„" .—._—._....-.,—«„..,...,«..«« Bee " DoWBRJ*' and " Wills." SURVEYOR— fees of............. .................................... TAXES— practical remarka,.... ._.........«...ib'..^. .. assessment roll,.... ................ b... ^... .... .... notice of completion of aasessmenttt.^.w.ii.^.-.i.k-u..-. affldarit to reduce tax, j. certificate to assessment' roll, notice to collector, ii.* -. collector's bond, -. collector's bond under militia law, .. . . . notice of collector, , . ............... county treasurer's warrant, . ......... .......... see "Highways." TENANT— see *^XAi^DLdiu> AND Tenant." TOWN ACCOUNTS— see "Town Auditobb." TOWN AUDITORS- practioal remarks,^^..;. ;.-..«— ...-^...i..-4..».«*..—.-. certificate of auditors,u......^< ..... u^. ............... affidavit to verify account,, ....^_.._.. ........_..._... ._..., abstract of accounts, .. .. annual account ofcommissioner of highways to,. ^.. .......... TOWN CLERK— oath of oflice,..^^. . ..... fees^)f, : ... see " Highways," " Husband and Wipb," *' Official Oath AND Bond," "Schools," "TownAobitobs," and "Town HonsES." TOWN COLLECTOR— fees of, . . . .... bond, . notice that taxes will be received, ...._.._... . TOWN HOUSES- practical remarks, . ., notice of intention to propose resolution,.... . certificate of canvassers at town meeting, ..... ...... resolution of board of eupervisors,.... . . TOWN SEALER— oath of office, .j . ................. fees of, ..... . ...... ...... TRUST- deed with trust habendum clause, ..._....jt ... creation of by will, for alife, or lives, TKUSTEES— fees of trustees of debtors, deed by trustees of absconding debtors, deed with trust clause, acknowledgment by,. ....... _. PAOC. 255 B73-576 676 677 577 578 578- 578 579 679 58C G81 582 682 430 258 678, 579 579 634 584 .683 686 430 251 IGS 166 165 15 620 INDEX. TRUSTEES— PAOO application for appointment of, for estates of debtors confined for crime,.... . ....... \ . 220 appointment and oatli, .. ..... 220.221 articles of marriage,... ..... . . 323 • settlement incontemplation of marriage,.... . 321 .flte-nuptial agreement......... . .. ...... . 326 jointure, .... ............. ...... 327 demise to, during a life, or liTes......... 6S2 see "Schools." VAGRANTS— see "Poos Laws." WARRANT— see "A0EHOWLBnaMEHTa,"GTO., "ArFREHTIOES AND SSRVAHTS," "Justices' Courts," "Landlord and Tenant," "Foob Laws," and " Sbrtiob and Return of Frocbss." WttLS- practical remarks, . . ... , 686-688 will of real and personal estate, . 589 codicil to a will, . .; ... .... 690 nomination of executors in a will,.... . ... 690 devise to executors in trust, with power to sell, &c., .. 690 disposition of llie tuition and custody of children by will....... 690 provision in a will for a posthumus child, . 691 provision for children btmi after execution of will, different forms, 591 devise of an estate for life, and for the reversion, .. 691 devise to trustees, during a life, or lives,.... •.-.._........ 592 devise of an annuity.................. ngj WITNESSES— fees of...................................................... 259 see " Aoknowledgmbnts," eto., " Clerks and Criers," " High. WATi," "Justices' Courts," and "Landlord and Tbhaht."