No. 1457 The Library, to which this volume belongs is given to the ©otnjjkina CO^ountg lar ABHoriattnn IN TRUST for the use of its members. Under the terms of the gift and of its acceptance by the Association, it is provided that if and when the library is not kept intact and the books are not available for the purpose intended, then the entire library shall become the property of Cornell University. In order that the usefulness of the library may not be impaired, the rules of the Association provide that this book musi not be removed from the library room. «55i CorrieH UnWersity Ubrary KFN6060.C89 186° v-2 ,„d oractice In special,, proceedi (Jnrnpll Haui irlyonl library Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022883908 THE LAW AND PRACTICE SPECIAL PROCEEDINGS, SPECIAL CASES, INOLirDIIf& THE PEOVISIONAL EEMEDIES O* " AiREEST AND BAIL,' " ATTACHMENTS," AND " CLAIM AND DELIVEET," ONDKK THE CODE OF PEOOEDTJEE, WITHIN THE COURTS, ETC., STATE OF NEW YORK. WITH AN APPENDIX OF POEMS, IN TWO VOLUMES. BY CHAELES CEAEY, COWNSELOB AT LAW. VOLUME II. SECOND EDITION. ALBANY: WEAEE C. LITTLE, LAW BOOK PUBLISHER. 1866. "B'7^3^^ Entered according to Act of Congress, in the year 1858, Bv OHAELES CBAEY, In the Clerk's Office of the District Court of the United States for the Southern District of New York. Entered according to Act of Congress, in the year 1866, By OHAELES OEAET, In the Clerk's Oiflce of the District Court of the United States for the Southern District of New York, U'OBEA & MILLBB, STB BE TTF BBS . u. A. ALTOBD, FBIHTBB. TABLE OF CONTENTS, YOLUME SEOOIJ^D. CHAPTER XVIII. PROCEEDINGS IN EBSPBCT TO IDIOTS, LUNATICS, AND HABITUAL DRUNKARDS. Section I. Appointment of committee, and peooeedings thereupon. The subject in general Overseers of the poor, and habitual drunkards Who are idiots, lunatics, &c . Who may apply for a oommission Application for a commission . The commission .... Effect of issuing commission . Authority of the court pending the proceedings Notice of the execution of the commission . Place of executing the commission- Witnesses ..... Precept for a jury .... Duty of sheriff .... Proceedings before the commissioners Inquisition ..... Return of commission Fees of commissioners New commission may issue Proceedings upon the return of the commission Who may be appointed committee Appointment of committee Boud of committee, &c. . Traverse of inquisition Proceedings thereon Effect of inquisition .... Setting aside inquisition; new commission, &c. Suspending or superseding commission 1 3 4 5 6 1 1 8 8 9 10 10 10 11 12 14 14 14 15 15 16 11 18 19 20 22 23 TABLE OF CONTENTS. PAOB Affidavit of lunatic, &a, how certified ... . . 25 Removing or discharging committee . . . • • .26 Remedy of persons having claims against lunatic's estate . • 26 Duty and authority of the committee .... 27 Committee to file inventory and account . .... 30 Compensation of the committee . . . • • .31 .Authority of thfe court over the lunatic's estate • • 32 Coats of the proceedings . . .... . 3i Section II. Proceedings foe the sale of theie real estate. The subject in general ....... 37 I. Applkatdmi for a sale, . 224, sees. 9, 11. If the application is to dispose of the -real estate for the pur- pose of paying debts, and the court, instead of ordering the estate to be sold or mortgaged, directs it to be leased, the lease cannot be given for a longer term than five years (&). 2 Pev. Stat. 55, sec. 23 ; lb. 53, sees. 11, 16. If the committee neglects or refuses to apply for leave to sell the real estate, where the personal estate is insufficient for the payment of debts, the creditors may institute proceedmgs, by action, for that purpose. 2 Johns. Oh. P. 400 ; lb. 242. But in such case, if a sale is ordered, it wiU be conducted by a refe- (a.) The provisions of the Revised Statutes are not in terms repealed by the act passed April 30, 1864 {Laws of 1864, p. 999, post); nor are they inconsistent with, or repugnant to, that act. Besides, the act of 1864 applies only to lunatics, while the Revised Statutes apply to idiots, lunatics, persons of unsound mind, and habitual drunkards. 2 Fev.Stat.53, sees. 11, 16. (6) See post, p. 43, and note, in proceedings under the statute of 1864. CH. Vin.] LUNATICS, HABITUAL DRUNKARD ', ETC. 39 ree and the committee of the estate, under the directions of the court, and the terms of sale, &c., must be reported to the court for its approval before a conveyance is executed. Id. ibid. Petition for leave to sell, dec.'] The application is founded upon petition, which should be addressed to the court to which the application is to be made. If the application is to sell real estate for the payment of debts, the petition should set forth the particulars and amount of the estate, real and personal, of such idiot, lunatic, or other per- son, the application which may have been made of any personal estate, and an account of the debts and demands existing against such estate. Ih. For form, see Appendix, No. 430. Where application to he made.] The courts having jurisdic- tion to order the sale of the real estate of a lunatic, &c., are the Supreme Court, the county court of the county where the real estate is situated, and the Court of Common Pleas of the city and county of New York, when the real estate is situated within the limits of that city. 2 Jiev. Stat. 52, seas. 1, 11 ; Laws of 1847, p. 323, sec. 16 ; Code of Pro. § 30, sul. 6 ; Laws of 1854,^. 464, sec. 6. The like authority is also given to the Superior Court of the city of Buffalo, in respect to real estate situated therein. Laws of 1854, p. 221, sees. 9 and 11. The application for leave to sell, however, cannot be made to any one of those courts, but only to the court by which the committee was appointed, 2 Rev. Stat. 53^ sees. 11, 16 ; except that where the application is to dispose of real estate for the main- tenance of the lunatic, &c., or his family, or for the education of his children, it may be made to the Supreme Court, notwith- standing that the committee was appointed by another court, {a) n. sec. 16; Laws of lMl,p. 323, sec. 16. The application is ex parte, and should be made to the court at special term. See 21 Barh. 348. In respect, however, to the county court, no notice being required, the application may be made at any term of the court, or even out of term, that court being always open for the transaction of such business. Cod-e of (o) In proceedings under the statute of \&%i,post,p. 41, the application must, in all csises, be made to the Supreme Court. 40 LUNATICS, HABITUAL DRUNKARDS, ETC. [CH. XVIII. Pro. § 31. But whether the application, in such case, is made in court or out, the papers should recite the proceedings to have been in court. Reference., and proceedings thereon.'] On the presentation of the petition, the court will order a reference to some suitable and proper person, to inquire into and report upon the matters contained in the petition. 2 Bev. Stat. 54, sec. 12. For forms, see Appendips, No. 431. The referee thus appointed is required to examine into the truth of the representations made, to hear all parties interested in such real estate, and to report thereon with all convenient speed. Ih. Notice of the reference should be served upon the next of kin of the lunatic, &c., a reasonable time before proceeding thereon. For form, see AppendAx, No. 432. Referee's report, and proceedings thereon.] The statute provides that if, upon the coming in of the report, and an examination of the matter, it shall appear to the court that the personal estate of the lunatic, &c., is not sufficient for the pay- ment of his debts, and that the same has been applied to that purpose as far as the circumstances of the case rendered proper, an order will be entered, directing the mortgage, leasing, or sale of the whole or such part of the said real estate as may be necessary to discharge the said debts. 2 Rev. Stat. 54, sec. 13. The order will also contain such directions respecting the time and manner of the sale as the court may deem proper ; and should direct, also, that the sale be made subject to the approbation of the court. Ih. sec. 18. In addition thereto, if the application is made for leave to dispose of real estate for the maintenance of the lunatic, &c., or of his family, or for the education of his children, the court will direct the manner in which the proceeds of the sale shall be secured, and the income or produce thereof appropriated. Ih. sec. 17. For form of report and order thereon, see Appendix, No. 433. Sale, hy whom conditoted.] If a sale is ordered by the court, it must be conducted by the committee, and not by a referee, CH. XVIII.J LUNATICS, HABITUAL DEUNKAEDS, ETC. 41 2 R&o. Stat. 53, sees. 11 to 18 ; thougli in a case where a sale was ordered upon proceedings instituted by bill in the Court of Chan- cery, the court directed the sale to be conducted by a master in conjunction with the committee. 2 Johns, ch. 400 ; and see Ih. 242. Report of sale, and confirmation thereof.'] The committee, having contracted for the sale of the premises, should report the the terms and conditions thereof to the court, upon oath. For form, see Appendix, No. 435. If the sale is approved, an order confirming the same will be entered. For form, see Appendix, No. 436. And until such report and confirmation, no conveyance can be executed. 2 Rev. Stat. 54, sec. 18. "-> Effect of conveyance.] Every conveyance, mortgage, lease, and assurance, made under the order of the court, pursuant to the statute, is as valid and effectual as if the same had been exe- cuted by such lunatic, &c., when of sound memory and under- standing. 2 Rev. Stat. 55, sec. 21. For form of conveyance, see Appendix, No. 438. Additional security from com,mittee.] The court may require any additional security to be given by any such committee, for the faithful application and accounting for the proceeds of such mortgage, lease, or sale ; and may require an account thereof to be rendered, from time to time. 2 Rev. Stat. 54, sec. 14. For form of bond, see Appendix, No. 437. JIow debts to he paid,] In the application of the moneys raised by any such mortgage, lease, or sale, the committee must pay all the debts in an equal proportion, without giving any preference to such as are founded on sealed instruments. 2 Rev. Stat. 54, sec. 15. II. Applications foe a Sale, &c., under the Act op 1864. (a). In what cases.] The statute provides that any lunatic seized (a) This act was passed on the 30th of April, 1864. Laws of 1864, p. 999. It does not in terms repeal any of the provisions of the Revised Statutes on the same sub- ject : and it is doubtful whether it can be held to be a substitute for those provisions. Besides, the act applies only to lunatics, while the Eevised Statutes apply also to idiots, persons of unsound mind, and habitual drunkards. 42 LUNATICS, HABITUAL DBUNKARD3, ETC. [CH. XVIII. of any real estate, or entitled to any term for years in lands, or having any tenancy by the curtesy, or any tenancy by the cur- tesy initiate, may by committee duly appointed ; or if such lunatic is a married woman, having any real estate held by her as her separate estate, or having any dower admeasured, or right of dower or inchoate right of dower in any real estate, she may by committee duly appointed, or by her husband, apply to the Supreme Court for the sale or disposition of the same in the man- ner prescribed by the statute. Loajos of 1864, p. 999, sec. 1. But no real estate or term for years, or any interest in real estate, as aforesaid, can be sold, leased, or disposed of in any man- ner against the provisions of any last will, or of any conveyance by which such estate, or term, or interest, was devised or granted to such lunatic. Ih. sec. 6 ; and see 10 Barb. 553 ; 38 Id. 473. And a sale of any real estate contrary to any such will or convey- ance would be void. See 6 Hill, 415 ; 2 Paige, 297 ; 7 Id. 312. To what court o/pplications to he made.] Applications for the disposition of the real estate of a lunatic under the act of 1864, can be made only to the Supreme Court. Laws of 1864, jp. 999. sec. 1. The application is ex parte, and should be made at the special term. See 21 Barb. 848. For forms in this proceeding, see Ap- pendix, Nos. 439 to 442. What must be made to appear to the court.'] Whenever it appears satisfactorily that a disposition of any part of the real estate of such lunatic, or of an interest in any term for years, or of a tenancy by the curtesy or tenancy by the curtesy initiate in any real estate, or a disposition of any real estate, or of her interest in a term of years of a married woman who is a lunatic, held by her as her separate estate, or of any dower admeasured, or right of dower, or inchoate right of dower of a married woman who is a lunatic, is necessary and proper either for the support and maintenance of such lunatic, or for his education, or that the interest of such lunatic requires, or will be^substantially promoted by such disposition on account of any part of such property being exposed to waste and dilapidation, or on account of its being wholly unproductive, or when the same has been "contracted to OH. XVIII.] LUNATICS, HABITUAL DRUNKARDS, ETC. 43 be sold, and a conveyance thereof cannot be made by reason of such lunacy, or for any other peculiar reasons or circumstances, the court may order the letting for a term of years, {a) or the sale or other disposition of such real estivte or interest to be made by such committee, in such manner and with such restrictions as shall be deemed expedient, or may order the fulfillment of said contract by conveyance by such committee according to the terms of the contract. Laws of 1864, p. 999, § 5. Bond to the lunatic.'] On the application to the court, the com- mittee or the husband, is required to give bond to the lunatic (in addition to the bond given on the appointment as such com- mittee), to be filed with the clerk of the Supreme Court, in such penalty, with such sureties, and in such form as the court shall direct, conditioned for the faithful performance of the trust reposed, for the paying over, investing, and accounting for all moneys that shall be received by the committee, according to the order of any court having authority to give directions in the premises, and for the observance of the orders and directions of the court in relation to the trust. Laws r^l864, p. 999, § 2. For form of bond, see Appendix, No. 441. If the bond is forfeited, the court will direct it to be prose- cuted for the benefit of the party injured. Lh. § 3. Upon the filing of the bond, the court is authorized to proceed in a summary manner, by reference to a referee, to inquire into the merits of the application. Ih. § 4. * Contract to he reported and confirmed hy the court.'] Upon an agreement for the sale, leasing, or other disposition of the prop- erty being made, or xipon any conveyance in fulfillment of a contract being executed in pursuance of such order, the same shall be reported to the court on the oath of the committee making or executing the same, and (except in the case of a conveyance to fulfill a contract), if the report be confirmed, a (o) trader the Revised Statutes {ante, p. 38), if the court authorizes the real estate to be leased, the lease cannot be given for a longer period than five years. This pro- vision is not in terms repealed by the act of 1864; and as the two statutes are not inconsistent with each other, it is questionable at least, whether a lease for a longer period than five years is not still prohibited by law. See Sedg. Stat Law. 124 ; 9 Bari. 260; Z7)f302; 16 Id. 15; 26 Id, 657; 4, E. D. Smith, 258; 1 Bilton, 2tl, s. c. 13 Sow. 441; 5 EiU, 221. 44 LUNATICS, HABITUAL DRUNKARDS, ETC. [CH. XVIII. conveyance is required to be executed under the directions of the court. Laws of 1864, p. 999, § Y. When sales valid.'] All sales, leases, dispositions, and con- veyances, made in good faith by the committee in pursuance of the orders of the court, will be valid and effectual, as if made by the lunatic when of sound mind. Laws of 1864,^. 999, § 8. Disposition of proceeds.] The court is required to make order for the application and disposition of the proceeds of the property, and for the investment of the surplus belonging to the lunatic, so as to secure the same for the benefit of the lunatic, and to direct the ascertainment of the value of any such tenancy by the curtesy, or tenancy by the curtesy initiate, or dower, or . right of dower, or inchoate right of dower, and to direct a return of such investment and disposition to be made on oath, as soon as may be, and to require accounts to be rendered periodically by any committee or other person who may be entrusted with the disposition of the income of such proceeds. Laws of 1864, p. 999, § 9. Effect of sale.] The statute provides that no sale made as aforesaid of the real estate or interest therein of any lunatic, shall give to such lunatic any other or greater interest or estate in the proceeds of the sale than the lunatic had in the estate so sold; but the proceeds shall be deemed real estate of the same nature as the property sold, or the interest thereii! of the said lunatic, and the court shall make order for the preservation of the same. Laws of 1864, p. 999, § 10 ; see 1 Kern. 544 ; 3 Sand. Ch. E. 456, 464 ; 1 Duer, 286. Proceedings in case of dower, or other life interest.] If the real estate of any lunatic, or any part of it, shall be subject to dower or other life estate, and the person entitled thereto shall consent in writing to accept a gross sum in lieu of such dower or other life estate, or the permanent investment of a reasonable sum, in such manner as that the interest thereof be made pay- able to the person entitled to such dower or life estate during life, the court may direct the payment, of such sum in gross, or the investment of such sum as shall be deemed reasonable and CH. XVIII.] LUNATICS, HABITUAL DRUNKARDS, ETC. 45 shall be acceptable to the person entitled to the said dower or other life estate or right therein actual or contingent in manner aforesaid. 'Laws of 1864, p. 999, § 11. And before any such sura shall be paid, or such investment made, the court must be satisfied that an eifectual release of the right of dower or other life estate actual or contingent has been executed. Ih. § 12 SECTION III. MISCELLANEOUS MATTERS. I. Applications foe CojnrBTANOE where Real Estate is held in Tetist, &o. In what cases.] It is provided by the statute, that whenever any idiot, lunatic, person of unsound mind, or habitual drunkard, shall be seized or possessed of any real estate by way of mortgage, or as trustee for others in any manner, his committee may apply to the Supreme Court for authority to convey, and assure such real estate to any other person or persons entitled to such con- veyance or assurance, in such manner as the court shall direct. 2 Rev. Stat. 55, sec. 19 ; Laws of 1847, p. 323, sec. 16. And the court may, also, on the application of any person entitled to such conveyance or assurance, compel the committee, on a hearing of all parties interested, to execute such conveyance or assurance. 2 Mev. Stat. 55, sec. 20. The Supreme Court has the power, under the above statutory provisions, to direct a specific performance by a lunatic heir of a contract for the sale of lands, made by a party who shall have died before the performance thereof. Thus, where such a contract was made, and the party died without performing it, leavirig an only child as his heir at law, who was a lunatic, it was held that a court of equity might decree a specific performance of the contract, and direct the committee of the lunatic to execute all necessary conveyances for the purpose. 1 Barb. S. C. B. 495 ; Will. Eg. Jur. 270. And 46 LUNATICS, HABITUAL DEUNKAEDS, ETC. [CH. XVIIL see, also, the practice in respect to the performance by infant heirs of the contract of their ancestor, ante, Chapter xiii. Application, where and how made.] The application must be made to the Supreme Court, at special term. 2 Eev. Stat. 55, sees. 19, 20 ; Laws of lM1,p. 323, sec. Ifi ; 21 Barh. 348. It is founded upon petition {a) addressed " To the Supreme Court of the State of JSTew York," Ih. ; 2 Rev'. Stat. 55. sec. 20, supra ; and should set forth clearly the facts on which the title to relief is founded ; and should be verified in the usual form. Notice of the application should be served upon the parties interested, in the usual manner, accompanied with copies of the papers on which the motion is founded. See Ih. sees. 19, 20. Reference, and proceedings thereon.] The court, upon the presentation of the petition, will direct a reference to some suit- able person, to inquire into the truth of the representations made, to hear the parties interested, and to report thereon with all con- venient speed. 2 Rev. Stat. 54, sees. 12, 19. Notice of the hearing before the referee should be given to the parties interested in the usual manner. Upon the coming in of the referee's report and confirmation thereof, the court will, if it is a proper case for it, make an order directing the committee to execute a conveyance of the premises. Ih. sees. 19, 20. If either party wishes to except to the report of the referee, the practice prescribed by Eule 32 of the Supreme Court, must be pursued. Effect of conveyance.] Every conveyance or assurance made in pursuance of the order of the court on such application, will be as valid and effectual as if the same had been executed by such lunatic, &c., when of sound mind and memory. 2 Rev. Stat. 54, see. 21, Costs of the application.] If the application is made for a specific performance of a contract by the heir of the party who (a) Proceedings may also be instituted, by action under the Code of Procedure, to compel the committee to execute a conveyance. 2 Rev, Stat. 55, sec. 20 ; 1 Bari. S. a. R 495. CH. XVIIT.] LUNATICS, HABITUAL DRUNKARDS, ETC. 47 made the contract, and such heir is a lunatic, neither the lunatic nor his estate will be charged with the costs of the proceedings. 1 Barh. S. 0. R. 495 ; and see 9 Paige, 28C, 283 ; 2 Ed. Ch. B. 415. Apj>eahfro'm order.] The order made upon the report of a referee, is an order in a special proceeding ; and an appeal may be taken therefrom to the general term. Laivs of 1854, p. 592 ; ante, p. 19, note ; and see 1 Kern. 52. The practice upon the appeal is regulated substantially by the Code of Procedure ; sections 327, 329, 330, and 332, of which are made applicable in such cases {a). Zam<( o/'1854, ^. 592, supra / and see 9 How. 304 ; «. c. 3 Duer, 616. From the decision of the court, at general term, an appeal may be taken to the Court of Appeals. Code of Pro. § 11 ; and see 1 Kern.. 52 ; Ih. 276 ; 2 Id. 409. The costs upon appeals, when allowed, are in the discretion of the court; and are regulated by the Code of Procedure. See Laws (2/" 1854, p. 592, sec. 3 ; ante, p. 14, note h; 9 How. 304; s. c. 3 Duer, 616. II. Specific Pebfoemancb oe Contract mat be directed. In what oases."] The statute provides tliat the court shall have authority to decree and compel the specific performance of any bargain, contract, or agreement, which may have been made by any lunatic, person of unsound mind, or habitual drunkard, while such lunatic, &c., was capable of contracting ; and to direct the committee of such person to do and execute all necessary conveyances and acts for that purpose. 2 Rev. Stat. 55, sec. 22 ; Laws of 1 864, p. 999, § 5, ante, p. 42. " Proceedings thereon.] The application should be made to the Supreme Court. 2 Rev. Stat. 55, sec. 22; Laws ofl9>Q4z,p. 999 ; and to the special term of that court. 21 Bari. 348. It is founded upon petition, upon the presentation of which the usual reference will be ordered. And upon the coming in of the refe- ree's report, an order may be made directing a specific perform- ance, according to the circumstances of the case. (a) See those sections, ank, p. 19, note. 48 LUNATICS, HABITUAL DEUNKARDS, ETC. [CH. XVIII. In general, in respect to the proceedings subsequent to the application to the court, the practice is the same, substantially, as upon an application to compel a conveyance of real estate held in trust by the lunatic. See, in such case, ante, p. 45. III. Other Gekeeai. Matters. JLimitation of authority over lunatic's real estate.'] The real estate of any idiot, lunatic, person of unsound mind, or person incapable of conducting his affairs in consequence of habitual drunkenness, shall not be leased for more than five years, or mortgaged, or aliened, or disposed of, otherwise than is directed by the statute. 2 Eev. Stat. 55, sec. 23 ; 2 Johns. Ch. R. 403 ; and see ante, p. 43, note. Partition of lunatic's estate.] The Supreme Court, on the application of the committee of any lunatic, &c., may authorize such committee to agree to the partition of any real estate owned by such lunatic as a joint tenant or tenant in common with others, and to execute releases of the right of such lunatic in and to the share falling to the other owners. 2 Sev. Stat. 331, sees. 89 to 91. For the practice, in such case, see Chapter xx. post, relating to the partition of real estate. Estate, how disposed of, on death of lunatic, c&c] The statute provides, that in case of the death of any idiot, lunatic, person of unsound mind, or person incapable of conducting his affairs, during such state of incapacity, the power of any trustees ap- pointed under the provisions of the statute, shall cease, and his real estate shall descend to his heirs, and his personal estate be distributed according to law, the same as if he had been of sound mind and memory, and capable of conducting his affairs ; but nothing contained in the statute will be held to affect the pro- visions of any last will and testament, duly made, and which shall be duly admitted to probate. 2 Rev. Stat. 55, sec. 25, as amended Laws of 1865, p. 1445. CHAPTER XIX. THE WEITS OF MANDAMUS AND PEOHIBITION". Section I. The Writ op Mandamits. II. The 'Wkit of Prohibition. SECTION I. THE WRIT OF MANDAMUS. The writ of mandamus is described by Sir William Black- stone, as a high prerogative writ issuing in the king's name out of the Court of King's Bench, and directed to any person, corpo- ration, or inferior court of judicature, within the king's dominions, requiring them to, do some particular thing therein specified and which appertains to their office and duty, and which such court has previously determined, or at least supposes, to be consonant to right and justice. 3 Bl. Com. 110 ; and see Bac. Abr., Man- damus ; 12 Wheat. 561; 2 Johns. Gas. '•M ed. 217, note. In this State the writ is issued by our Supreme Court, which, in its judicial relation to the sovereign power of the State, the people, possesses the same authority as the King's Bench. The ofiice of the writ is the same here as in England. Id. {a). I. When, and in what Cases it libs. 1. Oenerally.] The writ of mandamus issues in all cases where the party has a right to have anything done, and has no (o) For the origin and history of the Writ of Mandamus, and the proceedings therein, see the elaborate notes in 2 Johns. Cos. 2d. ed., 217-1 to 81, where the au- thorities are collected and stated at large. Vol. II.— i 60 MANDAMUS. [CH. XIX. other appropriate legal means of compelling its performance. 3 Bl. Com. 110; 2 Barb. 8. C. R. 417; 13 Id. 440; 25 Id. 73. But the writ will not issue in cases of doubtful right. The remedy by mandamus is a legal remedy ; and a party will not entitle himself to it unless he bas a clear legal right to demand what is asked for in his writ. 1 Kern. 563; 13 Barl. 444; 12 Id. 217 ; 26 Id. 240; 21 Row. 335, aff. 22 Id. 276 ; 18 All. 8 ; 1 Wend. 324 ; 10 Id. 366 ; 14 Johns. 416 ; 8 Peters, 291 ; 11 How. U. S. R. 272. And there must be no other specific legal remedy to which the party can resort for the enforcement of his right. Id. ibid/ and see post. 'By legal remedy, is meant a remedy at law ; and it is no objection to the granting of the writ that the party may resort to a court of equity for redress ; nor that his adversary may be punished criminally for omitting to do the act to compel the performance of which the writ is sought. 10 Wend. 395, 397. The writ, therefore, will not be awarded where the party has an adequate remedy by action / as, to compel a corporation to transfer stock on its books, 6 Hill, 243 ; 10 Johns. 484 ; 10 How. 544 ; to compel a county treasurer to pay money, where he with- holds such payment without sufficient cause, 2 Cowen, 444 ; and see 6 Hill, 244 ; to compel the corporation of the city of New York to pay the salary of one of the associate judges of the Court of General Sessions of that city, 25 Wend. 680 ; and see 2 Hill, 45 ; and 2.') Barb. 73 ; to compel the supervisors of a county, to allow to a person wrongfully assessed the amount of the tax col- lected from him on such assessment ; his remedy being against the assessors personally, 1 Kern. 563 ; or the like. 1 Wend. 318. 19 Id. 73 ; 2 Johns. Oas. 2d ed., note, 217-9 ; 13 Abb. 374, s. c. 35 Barb. 653. Nor will the writ be awarded where the party has a remedy by 'W7'it of error or appeal ; as, to compel a subordinate court to vacate a rule arresting judgment, 1 Cowen, 143 ; or to enter the satisfaction of a judgment, 10 Wend. 546; or to vacate a rule setting aside a report of referees. 21 Id. 20 ; 2 Johns. Cas. 2d ed., note, 217-6. ISTor where the party has any other specific legal remedy ; as, to compel the delivery of the books and papers belonging to an office, where tbe relator's title to such oiEce is clear and free from reasonable doubt ; his remedy, in such case, being by summary process under the statute, ^ Hill, 616, 631, CH. XIX.] UANUAMUa . 61* note; 7 How. 12i,' and see 14 Id. 315 ; or, to restore a party to the possession of an office where the right to such office is in dispute; the remedy being by action under the Code of Pro- cedure. 20 £arh. 302; 5 Hill, and 7 IIow. supra; and see j>ost, Chapter xxvii. of this worJe. But where a specific duty is imposed by a statute upon public officers or bodies, they may be compelled to execute it by man- damus, although an action for damages might also lie. 12 How. 224, and cases there cited ; and see 20 Barb. 294. And, it seems, in order to deprive a party of his remedy by mandamus, the remedy by action must not only be adequate, but it must be specific. 1 Barb. S. C. E. 34; but see 6 Hill, 243, ^er Bron- son, J. It has been said that the general rule that mandaiims will not lie where there is an adequate remedy by action, does not apply where the writ is directed to corporations and ministerial officers. 23 Wend. 458 ; 2 Barb. S. C. R. 398 ; and see 2 Hill, 45. But this is denied by Parker, J., in The People v. The Supervisors of Clienango County, 1 Kern. 573— 4. " If such an exception exists," he observes, " it can extend no further than was expressly recognized in McCullough v. The Mayor of BrooMyn (23 Wend, supra), viz. : if there be a refusal to perform a duty expressly devolved on the corporation, though an action on the case would perhaps lie, a mandamus may be awarded ; and that is hardly more than saying, ' If the remedy by action be doubtful, a mandamus will lie.' " lb. ; and see, also, 2 Johns. Cos. 2d ed. 217-11, note. But although a mandamus will not be awarded where the party has another adequate legal remedy, yet the converse of that proposition does not hold true. And there are many cases where, although the party has no other remedy, a mandamus will not lie. Motions for new trials, on the weight of evidence, on the ground of surprise, or to let in newly discovered evidence, and applications for amendments, for relief against defaults, and the like, are among the number. Such questions are addressed to the sound discretion of the court of original jurisdiction ; and their decision is final. 20 Wend. 662, per Bronson, J. ; and see 18 Id. 98, per Tracy, Senator ; and 1 Denio, 679. The mandamus is a prerogative writ which the court will issue or withhold, according to its discretion, 4 Hill, 583 ; 13 52 - MANDAMUS. [CH. XIX. Barb. 450 ; 1 Cowen, 502 ; 2 Johns. Cas. ^d ed. 217-4, note ; as, where it is manifest that the writ could not accomplish the object designed, 12 Barh. 21T ; 15 Id. 608 ; 29 Id. 96, .?. o. 17 How. 142; 20 Wend. 108 ; or where the end of it is merely to try a pri- vate right, 2 Johns. Cas. ^d ed. 217-5 note; or where the grant- ing of it would be attended with manifest hardships and difficul- ties, 15 Barh. 617; 1 Cowen., 502; or where the issuing of it would give rise to greater difficulties than would arise from its refusal. 21 How. 335, aff. 22 Id. 276. But although the court may grantor refuse the writ in its discre- tion, yet this discretion is not merely arbitrary and capricious, but is regulated by well-settled rules and principles of law, which have been incorporated into our system of judicature ; and they will be uniformly regarded in determining the question whether the writ shall be awarded or not. See 2 Johns. Cas. 2d ed. 217-4, note. It may also be stated, generally, that the writ of mandamus is never granted except for public purposes, and to compel the performance o^ public duties. Bac. Abr., title Mandamus ; 3 Bl. Com. 110 ; 2 Johns. Cas. 2d ed. 217-5, 6, note. And so, it will not be granted unless the application has been preceded by a distinct demand of the specific thing the perform- ance of which is the object of the mandamus, and by a refusal of performance, or conduct equivalent to it. Q. B. Hil. T. 1843 ; 7 Lond. Jar. 233 ; 8 Id. 496 ; Z A. & E. 477. But it is not necessary that the party should actually refuse to do the thing required; it is sufficient if it appear that the defendant withholds compliance and distinctly determines not to do what is required. As, where a claim is pi'esented to a board of super- visors for allowance, and they permit their session to expire witliont taking any action upon it. 20 New i'orh, 253 ; and see .Z A.ii:. E.211. 2. To inferior courts, cfec.J The writ is frequently resorted to for the purpose of compelling inferior judicial tribunals to do sorie act belonging to their duty. 2 Johns. Cas. 2d ed. 217-15 to 31 notes. Thus it has been allowed to compel a court of sessions to enter judgment on a verdict where that court had no power to grant a new trial ; 1 Johns. Ca^. 179 ; and see 2 Johns. 371 ; to compel a court or judicial officer to seal or amend a bill CH. XIX.] MANDAMUS. S3 of exceptions, 1 Cai. ^, 511 ; 2 Johns. 279 ; 2 Johns. Oas. 118 ; 5 Wend. 132, note, or to settle a case and exceptions, and to settle it correctly, 35 Barh. 105 ; to compel a subordinate court to give judgment in order that a writ of error may be brought, 2 Johns. Cas. 215 ; 19 Johns. 247 ; 1 Gowen, 143 ; 9 Wend. 182 ; to allow an appeal to be placed on the calendar and to hear the argument thereof, and to give judgment thereon, where it had been dis- missed without authority, 13 How. 279 ; and see Id. 398, 401 ; 36 Barb. 164 ; to settle a case after the denial of a motion to set aside the report of referees, so as to enable the party to appeal, see 20 Wend. 663 ; 35 Barb. 105 ; to approve a new appeal bond on an appeal from a judgment of a justice of the peace, 1 How. 196 ; and the approval of official bonds, in order to enable the appointee to bring an action to try the title to the office, 11 Abb. 17; to vacate its rules and orders in certain cases, 1 How. 109, 111, 200 ; 18 Wend. 534 ; but see Id. 79 ; 2 Benio, 192 ; to compel a justice of the peace to issue an execution upon a judg- ment rendered by him, 2 How. 109 ; and see 22 Barb. 502 ; and a warrant in summary proceedings to recover the possession of land, 5 Abb. 206 ; and a county judge to file his decision after it is completed. 5 How. 47 ; 2 Johns. Cas. 'i,d ed. 217-15 to 31, note. But the writ of ma,ndamus will not be granted to be directed to a court acting under a special commission which has expired by its own limitation previous to the application for the writ, 20 Wend. 1 08 ; nor to compel a court of common pleas to permit a cause pending there to be removed to the Circuit Court of the United States, 2 Henio, 197 ; nor to vacate a rule arresting judg- ment, 1 Cowcn, 143 ; nor to compel obedience to an order made by another court, 11 How. 563 ; nor to compel an inferior court to punish for a contempt, where the civil rights of an individual are not implicated in the proceeding, 4 Coioen, 49 ; nor to com- pel a ministerial officer to disobey an injunction, unless it appears to be plainly void for want of jurisdiction, 4 Hill, 581 ; nor to compel a justice to proceed in a suit before him in which he has given judgment of nonsuit, which subsequently was reversed in the common pleas, 9 Wend. 503 ; nor for the purpose of con- trolling the mere chamber business of a judge of a subordinate court, 5 Gowen, 31 ; nor the practice of other courts, 2 Hoio. 59 ; and see also 2 Johns. Gas. 2d ed. 217-15 to 31, 7iote ; especially 54 MANDAMUS. , [CH. XIX. that portion of the practice which does not depend upon estab- lished principles, or is not regulated by fixed rules. 15 How. 392 ; and see 16 Id. 200. And so, where the court or officer has acted judicially, in making a decision or order, whether the decision or order be right or wrong, the party will not be permitted to have the same reviewed or corrected by mandamus. The writ will be awarded to set an inferior court in motion when it has refused to act ; but not for the purpose of requiring the court to come to any partic- ular decision, or to retrace its steps when it has already acted. 2 Denio, 192 ; 18 Wend. 79 ; 20 Id. 658 ; 3 How. 30 ; 13 Id. 277 ; 35 Barb. 105. Thus, the writ has been denied to compel an inferior court to grant a new trial in a cause before it, where it was alleged injustice had been done to one of the parties, 2 Ohitty, 250 ; to reinstate an appeal which the court had dismis- sed, 3 Binney, 273 ; and see 20 Wend. 658 ; 1 Benio, 679 ; to vacate a rule setting aside a report of referees, although the court clearly erred in the decision made, 21 Wend. 20 ; to compel a judge to issue his warrant on a complaint for an intrusion and settlement upon Indian lands, where he had refused to do so, after hearing e^dence on the subject, 1 Denio, 617 ; 1 How. 186 ; to compel an inferior court to vacate an order authorizing a defendant to enter a judgment nun/i pro tu7ic, in a case where the Supreme Court would have denied the application for such order on account of delay in making it, 1 Benio, 644 ; to vacate an order opening a judgment to enable the defendant to plead a bankrupt discharge, though it was urged that the order interfered with vested rights, 2 Id. 191 ; to vacate a rule setting' aside an execution issued by a justice of the peace, on a judgment rendered before him, and docketed in the county clerk's office. 1 Id. 646, note. Beardsley, J., in denying the motion, said, "The common pleas have acted and decided, and whether right or wrong will not be determined on an application for a manda- mus. If the court had no jurisdiction, the order is void ; if it had, it is strictly a judicial decision." Ih. / and see the cases cited by Tracy, Senator, 18 Wend. 89, and by Bronson, J., 20 Id. 659. It is also a rule applicable to this writ, that where inferior tribunals have a discretion, and proceed to exercise it, the court has no jurisdiction to control that discretion by mandamus. 2 GH. XIX.} MANDAMUS. 56 Johns. Cos. 2d ed. 217-19, note. The writ, therefore, will not be allowed to compel a subordinate court to grant a new trial upon the merits, 2 Coweri, 479 ; nor to vacate a rule setting aside a report of referees on the ground that it is founded on insuffi- cient evidence, Ih. 458 ; and see 19 Wend. 68; nor to vacate a rule setting aside a regular default and permitting the defendant to plead on payment of costs, 6 Cowen., 392; nor to vacate an order allowing rules for interlocutory judgment and assessment of damages to be entered nvnc jpro hmc, 7 Id. 523 ; nor to vacate the condition of a rule setting aside a ca. sa., for irregularity, 3 Id. 59 ; nor to vacate a rule to quash an appeal taken by default in the absence of the relator's attorney, 7 Id. 363 ; nor a rule granting an amendment without the payment of costs, 8 Wend. 509 ; nor, it seems, to vacate a rule granting an amendment in any case within the power of the court, see 16 Wend. 617; 20 Id. 658 ; nor to retax a bill of costs, 19 Id. 113 ; nor for the purpose of controlling the mere chamber business of a judge of an inferior court, 5 Cowen, 31- — or, the practice in other courts, 16 How. 200; 16 Id. 392, and cases sujpra ; or the like. See 1 Id. 417 ; Ih. 371 ; 1 Wend. 73 ; 18 Id. 92. But, although the Supreme Court will not interfere where the subordinate court has a discretion and proceeds to exercise it, yet if the subordinate court refuses to act or to entertain the question for its discretion, the court will interfere so far as to set the inferior jurisdiction in motion, by directing it to proceed and exercise the discretion and powers conferred upon it. 14 Ea^t, 395 ; and see 19 Johns. 260 ; 18 Wend. 92, 9b, per Tracy, Senator; 2 Johns. Gas. M ed. 217-23, note; 12 Earl. 446. 3. To corporations and ministerial officers.] The writ of mandamus is also an appropriate remedy to compel corporations and inferior officers, besides those occupying judicial stations, to perform the duties which the law imposes upon them. With respect to subordinate judicial tribunals and officers, the operation of the writ, as we have seen, has been confined simply to a mandate that they proceed ; but as to corporations and ministerial officers, the authority of the writ is recognized to be not only to compel them to act, but to direct the mode and manner in which they shall act. 20 Wend. (158 ; 2 Barh. S. C. R. 418 ; 19 Johns. 263 ; 12 How. 224 ; 13 Id. 277. The 56 MANDAMUS. [CH. IIX. writ has been allowed, in such cases, to compel the supervisors of a county to allow the account od:' a county clerk for expenses incurred and services performed by him according to law, 18 Johns. 242 ; and see 2 Oowen, 530 ; 1 JIoio. 163 ; to compel them to restore the names of certain banks which they had struck oflf from the assessment roll as made by the assessors, 4 Jlill, 20 ; to compel them to levy and collect the amount of a deficiency on the sale of lands foreclosed on loan-office mortgages, 10 Wend. 363 ; to levy and collect the amount of damages sustained by owners of lands taken for the improvement of a public highwaj', 4 Barb. 64 ; to compel them to audit and allow the claims of county officers for expenditures paid or incurred by them in the dis- charge of their official duties. 32 Ifew Ym'k, 473 ; and see, also, in like cases, 19 Johns. 272; 5 Oowen, 292 ; 3 Barl. S. C. R. 332; 20 Id. 294; 35 Id. 408; 12 Bow. 50; 11 Alh. 114; 32 New York, 473. And so, where the supervisors of a county, have neglected to perform any duty required of them at their annual meeting, — e. g., to issue warrants for the military com- mutation, they may be compelled by mandamus to meet again and perform that duty. 4 Selden, 318. And where a creditor has an account against a county, and no discretion is vested in the board of supervisors in relation to it, and there is a clear legal duty resting upon them to cause the whole amount of the account to be collected and paid, which they refuse to perform, it seems the only remedy of the creditor is by an application to the court for a mandamus to compel them to perform that duty. 20 Barb. 294, 297 ; denying the authority in 14 Barb. 52, and other cases there cited. In like manner the writ has been issued to compel commis- sioners of highways to open and work a road which has been laid out by commissioners appointed by an act of the legislature, 19 Wend. 56 ; and to open a road where they had refused to do so, and their decision had been reversed on appeal, and the appel- late tribunal had proceeded to lay oiit the road. 16 Johns. 61 ; 12 Barb. 194, 6 ; 4 Selden, 476 ; 1 Cowen, 23 ; 4 Id. 544. And the writ will be granted, in such case, without regard to the near approach of the expiration of their offices ; if their term of office expires, it will devolve upon their successors to obey the writ. 19 Wend. 56; and see 16 Johns. 65; 3 Row. 56. But this rem- edy should not be resorted to, where its necessary effect would CH. XIX.] MANDAMUS. 57 be to subject tbe commissioners to an action for trespass. 27 Barl. 94. The writ has been issued, also, to compel a town clerk to record the survey of a road, 7 Johns. 550 ; a county clerk to record a deed properly acknowledged and certified, 14 Johns. 325 ; the cle7^k of the Marine Court of the city of New York, to issue an execution upon a judgment rendered by that court, 13 How. 5 ; 22 Barb. 602, aff. 13 How. 260 ; 3 AU. 309 ; the commissioners of jurors to strike the name of the relator from the list of jurors, MSS. The People Ex. Rel. Livingston v. Taylor, Gen. Term, 1st. Bist. JVov. 1865 ; the mayor of a city to grant a licen^e, where the party was entitled to such license as a matter of legal right, 13 Barb. 206 ; the mayor of a city to administer the oaths of office to persons returned by the inspectors of election, as assess- ors of a ward, 3 Hill, 43 ; and see 4 Abb. 36 ; and to compel him to countersign a warrant for the payment of money, where his signature is necessary to obtain the same ; 40 Barb. 306 ; and see 8 Abb. 360, s. c. 30 Barb. 193 ; 22 How. 286 ; to compel the trustees of a school district to issiie their warrant for the collec- tion of a tax, 8 How. 358 ; Id. 125 ; to compel a sheriff to exe- cute and give a deed of lands, 1 Cowen, 502; 18 Wend. 598; 1 Barb. S. G. R. 379 ; 4 Benio, 138, aff. 2 Goms. 485 ; to compel canal appraisers to appraise damages occasioned by a canal, 6 Cowen, 518; and the canal commissioners to pay the amount of the damages appraised, 7 Id. 526 ; to compel a jury to complete their assessment of damages >for the opening of a street in a vil- lage, 1 Barb. S. C. R. 34 ; to compel a county treasurer to pav the amoun-t of an account which had been legalty audited and allowed by the board of supervisors, 15 Barb. 529 ; 19 Id. 468 ; and see 23 Id. 338 ; 1 Selden, 65 ; 6 Hill, 244 ; to compel the auditor of the canal department to pay a draft drawn upon him by a canal commissioner, 13 Barb. 86 ; to compel commissioners for loaning moneys of the United States, to pay over surplus moneys in their hands, 1 How. 160 ; and see 24 New York, 114 ; to compel the comptroller to issue his warrant to pay certain tolls collected by him for the State, 18 Wend. 659 ; to compel the comptroller of the city of New York, to draw his warrants upon the chamberlain of the city, for certain moneys ordered to be paid by the corporation, 16 Barb. 503 ; and see 34 Id. 69 ; 39 Id. 522; ]2 Abb. 70; VI New York, 585; but not until the claim 58 MANDAMUS. [CH. XIX. has been audited by the finance department, 18 Aih, 100 ; to compel the common counciL of Brooklyn to proceed in the matter of widening a public street, 22 Barb. 40i ; to compel the trustees of non-resident debtors to appoint referees in pursuance of the statute, in order to contest the validity of the debts presented and claimed by attaching creditors, 1 Row. 80; 2 Id. 200; to com- pel a Gorporation to exhibit its books and papers to a director or corporator, he having a right at all reasonable times to ex- amine them, 1 How. 247 ; 12 Wend. 183 ; and the like. 2Cowen, 485 ; 23 Wend. 458 ; 2 Johns. Gas. M. ed. 217-32 to 61, notes. But the writ will not be allowed in cases where corporations, and ministerial and other officers have acted judicially y nor where they have a discretion with regard to the performance of an act, and have exercised the discretion conferred upon them ; but if they refuse to act when required by law, the court will compel them by mandamus. And the operation of the writ is the same in these respects as when directed to subordinate judicial tribunals. 19 Wend. 56; 12 Barl. 446; 39 Id. 651 ; 2 Johns. Cas. M ed. 217-12, 32, 37, notes. Thus, the writ will not be allowed to compel a hoard of supervisors to audit and allow an account for services as marshal, where they have adjudicated upon the account, and allowed part and rejected part, 12 Hom. 204; and see to the same effect, 12 Joh7is. 414; 19i Id. 260; 9 Wend. 508; 1 Hill, 363; 14 Barb. 52; 26 M 118; 1 How. 116; 12 Id. 224; nor to compel assessors to reduce their assess- ments, where the affidavits produced before them, are not in con- formity with the statute, see 15 Barb. 608 ; nor to compel the attor- ney general to prosecute an action to establish the right of a party to an office, 22 Barb 114 ; s. c. 13 How. 179 and 3 Abb. 131 ; nor to compel a board of school trustees to reinstate a person in his position as teacher, 18 Id. 165; or pupil, lb. note. And so the writ will not be allowed to compel a county treas- urer to pay an account audited by a board of supervisors, where the subject-matter of the account is not within the jurisdiction of the board, 6 Hill, '■2^4. ; 23 Barb. 350 ; s. c. 13 How. 314 ; where there are no moneys applicable to such payment, lf> Abb. 115 ; nor to compel a board of supervisors to correct an assessment roll after the same has been finally acted upon by them, and a warrant for the collection of the taxes issued to the collector of the town, 15 Barb. 608 ; 24 Id. 166 ; and see 1 Hill, 195 ; CH. XIX.] MANDAMUS. 59 thongli it is otherwise, it seems, where the mandamus is directed to the supervisors of the county of New York, 12 How. 224, 230 ; but see 13 Id. 305 ; s. c. 4 Ahh. 84; 24 Barb. 166 ; nor to com- pel the canal board to approve or disapprove of a contract for the performance of work on the canal, made by the canal commis- sioners and other state officers, with the relator, 13 Barh. 432 ; nor to compel them to confirm the award of a contract to the lowest bidder therefor, 27 Nivw Yor1c, 378 ; 26 Bari. 241 ; 33 Id. 510 ; 11 Abb. 289, 12 Id. 133, nor to compel the commission- ers of excise, under the act of 1857, to grant a license, 7 Abh. 34 ; nor to compel the supervisors of a county acting as county canvassers, to reoi'ganize for the purpose of correcting the esti- mate of the votes of the county, or otherwise, after they have acted upon the matter and adjourned, 12 Barb. 218; and see 7 Abb. 34 ; nor to compel commissioners of highways to lay out a highway where they had refused to do so, and the referees, on appeal, had simply reversed their decision without having made any order laying out the road, 4 Selden, 476 ; or to erect a bridge upon a site selected by them at a different place from that con- templated by the statute under which they were acting, 24 Bar'b, 241 ; nor to compel a corporation to make transfers of stock on the books of the company, 10 How. 544 ; s. c. 1 Abb. 128 ; nor to compel the performance of public duties on the part of a corpora- tion of another State, lb. ; nor to compel obedience to an order made by another court, when that court possesses the authority to enforce its own orders, 11 How. 563 ; s. c. 2 Ahb. 90 ; nor to afford relief against an illegal tax, which is about to be collected, 1 Hill, 195 ; and see 15 Barb. 608 ; but see as to the city of New York, 12 How. 224; 13 Id. 305; nor in other like cases. 2 Johns. Cas. %d ed. 217-32 to 61, notes. The writ of mandamus is also frequently resorted to for the purpose of restoring one to an office, where he is illegally deprived of the possession thereof. The writ, however, confers no title upon the person thus restored ; its sole operation being to put him in a situation to enforce his former title, if sufficient in law. 2 Johns. Cas. 2d ed. 217 — 10, 56, notes. The only mode of trying the title to an office in dispute, is by an information in the nature of a quo warranto ; or, now, by action under the Code of Procedure, 3 Id. 79; 5 Hill, 616; 12 Barb. 222; post, Chapter xxvi., of this work; though, if quo warranto, or aa 60 MANDAMUS. [CH. XIX. action, will not lie, a mandamus will be granted, upon the principle that the party shall not be without a remedy. 6 East, 356 ; 5 Rill, 629; 2 Johns. Cas. M ed. 217-11, note. The writ has been allowed to compel the proper officers to admit to the possession of his office or place one elected to the office of mayor, 2 JRoll. Ah. Restitution, pi. 4; recorder, Id.pl. 6 ; sergeant, Id. pi. 71 ; alderman, 2 Bulst. 122 ; policeman, 26 New Fork, 316; 35 Barb. 527 ; Id. 644; and brigadier-general, 20 Barb. 302; s. c. 12 How. 126; and see 25 Barb. 216 ; and 2 Johns. Cas. %d ed. 217-52, note ; 18 Abl. 271. The writ has also been granted to compel an insurance company to swear in a director, the company having been created by charter from the crown, 1 Stra. 696 ; to restore the directors of a banking company, who were refused the exercise of their rights as directors by a majority of the Board, 7 LovA. R. 509 ; as, where the cashier of a bank refused to permit a director to inspect the discount book, and his conduct had been approved by a resolution of the board, 12 Wend. 183; and see 1 How. 247; and to compel a medical society to restore a party to membership, where such party had been illegally expelled, 24 Barb. 570; 32 iVew; York, 187; 2 Johns. Cas. M ed. 217-56, 57, notes, and cases there cited ; and so, also, to compel the trustees of a meeting-house to admit a dissenting minister, who was duly elected, 3 Burr. 1265 ; and, it seems, the writ of mandamus is the only proper remedy to put a minister of any religious denomination in possession of the pulpit to which he is entitled, 2 Barb. S. C. R. 398, 417, 419 ; and this, too, notwith- standing such pulpit is occupied by another person, lb. ; but see the observations on this case in 7 How. 129, jyer S. B. Strong, J. ; and see jyost. But the court will not grant a mandamus to admit a per- son to an office, where the office is already filled by another person who has been admitted and sworn, and is in by color of right, 3 Johns. Cas. 79 ; 20 Barb. 302 ; s. c. 12 How. 126; nor where there is an appropriate remedy by quo warranto or the action substituted in its place by the Code. Id. ibid. ; and see 5 Ilill, 616 ; 20 Barb. 302, sxipra ; nor where there is a real and substantial dispute as to the title to the office. Id. ibid. ; 7 How. 124 ; nor where there is good cause of removal of the relator from the office. 9 Abb. 258. The principles which con- OH. XIX.] MANDAMUS. 61 trol in affording relief in these cases, are stated by S. B. Strong, J., as follows : " 1st. That a mandamus is inappropriate and should not be issued where there is a real and substantial dispute as to the title to an office. 2d. That where the right of the ap- plicant is clear and unquestionable, and the possession of tlie offi- cial books and papers is all that is necessary to enable him to perform fully and satisfactorily the duties of the office, a resort should be had to the summary process given by the statute to obtain such books and papers, and a mandamus being unpeces- sary, should not be awarded. But, 3d, That when the title of an applicant to an office is beyond a substantial dispute, so that the objection to it is wholly frivolous, and the possession of the books and papers would not give him the entire control of the office, the remedy by the proceedings substituted by our new Code for the writ of quo warranto, would" in many cases be so dilatory as to amount to a failure of justice ; and the writ of mandamus would be proper, and should be awarded." T Row. 128 ; and see 20 Barb. 302, supra ; 2 Johns. Gas. M ed. 217-52 to 59, notes. 11. How THE WatT IS Obtained, and Proceedings Therkon. Having thus considered the nature of the writ of mandamus, and stated most of the cases in this State, as well where the writ has been allowed as refused, we shall now consider the practice in obtaining the same, and the proceedings thereon. Who may have the Writ.] In a matter of public right, any citizen may prosecute a mandamus, where the object is to enforce the execution of the common law, or of an .act of the legislature. 19 Wend. 56 ; 1 How. 186. It has been denied, however, that any citizen can have the writ to compel the performance of public duties 'on the part of State officers. 13 Bari. 449, 450, per Cady. J. "Where the matter relates to private or corporate rights, the party interested in the same, is entitled to the vn'it. As, where a municipal corporation purchased lands, and directed its finan- cial officer to pay the purchase money thereof, on his refusal to do so, a mandamus may be applied for by the vendor or party beneficially interested in enforcing the contract, if the application is assented to by the corporation. 39 Barb. 522. So, where 62 MANOAMUS. [CH, XIX. parties whose duty it was to open a street, neglected to do so, a mandamus may issue against them on the relation of any person interested in the proposed improvement, or in the damages awarded. 20 How 491. And the title to relief, at the suit of the relator, should appear ; otherwise, a mere stranger might ob- tain a mandamus officiously, and for purposes not desirable to the real party. 19 Wend. 56; and 1 How. 186, supra; and see 10 Wend. 30. Where the mandamus is applied for in behalf of a particular class, and the legislature has provided that they should be repre- sented by a particular officer, such officer is the proper person to prosecute the writ, and to be named as relator therein. 1 Denio, 617 ; 1 How. 186. Within what time it should he applied for.] There is no statutory limitation of the time within which the writ may be obtained in this State. See 12 Barb. M9. The writ, however, will not be granted where the party has slept upon his rights. Thus, the court denied a motion for the mandamus to compel the common pleas to quash an appeal after the lapse of five years from the final decision of the cause. 2 Wend. 256. In another case a mandamus to the common pleas, requiring them to compel a justice of the peace to amend his return, was denied, because there had been a delay of a year after the happening of the errors complained of. Id. 264 ; and see 2 Johns. Cas. 2d ed. 217-14, note; 1 M. <& Sel. 32 ; \ B. & Ad. 378, 380. ' But it seems where the object is to enforce a substantial right by means of a mandamus, the party should be allowed the time given by statute to obtain a remedy for injuries essentially of a similar character, in the ordinary way, if that could be pur- sued. 12 Barh. 446. The affidavits.] The application for the writ of- mandamus is founded upon affidavits, stating the facts upon which the party relies, and which show that he is entitled to the relief demanded. 1 Johns. Cas. 134; 3 Term R. 575. The facts should be set forth with precision ; and where the allegations in the affidavits are not so positive, that an indictment for perjury could be maintained upon them if false, the affidavits will be in- sufficient. 5 Term R. 466, 469 ; 2 Johns. Cas. -2d ed. 217-6i, OH. XIX.] MANDAMUS. 63 note. " The affidavits should also anticipate and answer every possible objection or argument in fact which it may be ex- pected will be urged against the claim, * * * and where any strong evidence is expected, any disputable or material facts should be corroborated by one or more respectable and experi- enced individuals." 1 Chit. Gen. Pt. 808, 809 ; and see 2 Johns. Cos. M ed. 217-62, note. The aiiidavits should not be entitled; as, for example: "Supreme Court, Andrew Koddy v. Thomas "W". Hill," 1 Wend. 291; or, "Reuben Turner adv. James Haiglit," 'i Johns. 371; and see 2 How. 60; and the practice is still the same, in this respect, notwithstanding the Code. 7 How. 124. But where the affidavit was entitled : " Supreme Court. In the matter of John La Farge against The Judges of the Court of Common Pleas of Jefferson County," it was held, that this was not such an entitling of the affidavit as to bring it within the rule that an affidaxit entitled cannot be read. 6 Cowen, 61. For form of affidavit, see Appendix, No. 443. How and cohere applied for.'] The necessary affidavits hav- ing been prepared, the next step is to apply to the court for the mandamus. The application- should be made to the Supreme Court («) at special term. Sup. Court, Hules'No. 40; and see 12 £arh. 219. The application is either that a peremptory mandamus issue at once, or that an alternative mandamus issue, or for an order to show cause in the nature of an alternative mandamus, why the particular act sought to be commanded should not be per- formed. 10 Wend. 30 ; 3 How. 164. A peremptory mandamus will seldom be granted in the first instance ; although, where both parties are heard on the applica- tion, and there is no dispute about the facts, and the law is with the application, the court will permit the peremptory writ to issue at once. 7 Cowen, 526 ; 4 Ahb. 36 ; 39 Barb. 522. And so, it will be permitted to issue at once, where it is apparent that no excuse can be given for the non-performance of the act, and the party's rights might be endangered by delay, see 14 Johns. 325 ; (a) In the city of Buffalo, the application may also be made to the Superior Court of tljatoity, that court having, within that city, concurrent jurisdiction witli the Supreme Court, iu proceedinga by mandamus. Laws of 185'!, vol. 1, p 752. 64 MANDAMUS. [CH. XIX. and, also, where on an order to show cause, the defendant shows cause, but not satisfactory. 12 Wend. 183; 6 Gowen, 518; 27 New Fork, 378. And see further on the subject of the peremp- tory mandamus, post, pp. 78, 80. The alternative mandamus issues in all cases where the f'" on which the party relies are in dispute, or where the partii. wish to review the case on appeal. The usual practice, however, is to grant an order to show cause, instead of issuing the altern- ative writ, 10 Wend. 30 ; especially where the application is to compel the performance of an act by a subordinate court. 9 Wend. 472; 2 Johns. Gas. 68. The diiference between the order to show cause, and an alter- native mandamus, is stated by Harris, J., thus : " In the one case, the questions arising upon the application are disciissed upon affidavits ; and in the other, the questions come before the court upon the alternative mandamus, setting forth the facts upon which the application for relief is founded and the defendant's return, thereto. In the former case, the questions between the parties, being heard upon affidavits merely, no formal judgment is given, and of course no writ of error can be brought. In the latter case a record is made up, and a writ of error lies as upon other judgments. The only practical difference between the two modes of proceeding is, that in the one case the decision of the court upon the application is final, while in the other case such decision may be reviewed upon error." (a) 3 How. 165 ; and see ^er Walworth, Ch., 10 We7id. 30, supra; 2 Johns. Gas. 2d ed. 21Y-63 note. For form of order to show cause, see Appendix 'Eo. 446. Whether the writ has been granted or denied, on a motion for a peremptory mandamus, or on the return of an order to show cause, the court, on the suggestion of either party, will permit the alternative mandamus to issue to enable the question to be carried further. 20 Barb. 86 ; 13 How. 305, 309 ; 10 Wend. 31 ; 12 /d 183; 6 Gowen, 518. The court will not determine doubtful questions on the motion (a) But now the writ of error is abolished, and either party may appeal from the decision of the court made on the order to show cause. See 'post, under the head of "Appeals, and the proceedings therein"; and see, also Laws of 1864, 7). 592, anie, •p. 14, note b. ; 19 Bwrb. 667 ; s. con appeal, 3 Kern. 239, 241. CH. XIX. j MANDAMUS. 65 or application for the writ, but will grant the mandamus that the matter may come before them on the return. See per Edmonds, J., 7 How. 293 ; and see 1 Id. 163. The application for the writ is either exparte., or upon notice to the defendant. For form of notice, see Appendix, lS.o. 444. It was stated by Sutherland, J. (12 Wend. 292), that the court would not, in future, entertain motions for a mandamus, or a rule to show cause, unless upon notice to the parties to be affected by the proceedings. But the rule, thus laid down, has not been generally followed by the courts ; and the usual practice now is, to apply ex parte for the alternative mandamus, or the rule to show cause. See 3 How. 165. Where the application, however, is for a peremptory mandamus, in the first instance, the usual notice of motion for a special term must be served at least eight days before the first day of the court, together with copies of the papers on which the same is founded; and the motion should then be brought on in the usual way. See 2 Burr. Pr. 1Y6 ; and 3 How. 166 : II. 379 ; 2 Johns. Oas. M ed., 217-63, note. Where a mandamus was sought against the contracting board of the State, and the notice of motion was served on a majority of its members, including the chairman of the board ; it was held that the service was sufficient. 20 Hoio. 206. On the return of the order to show cause, or on the motion for the peremptory writ, if the opposite party appears, the relator will hold the affirmative, — thus, the relator will move for the mandamus, and after the opposite party has been heard in oppo- sition to the potion, the relator will be at liberty to reply. 12 Wend. 184, note. Alternative mandamus.'] If the alternative mandamus is granted, an order authorizing it should be entered with the clerk of the court. For form, see Appendix, No. 445. Although, as we have seen, it would be irregular to entitle the affidavits on which the writ is allowed, yet it is otherwise with the rule grant- ing the writ, which may properly be entitled in the cause. 2 itow. 60. The alternative writ should be dvrected to the person, body, or tribunal, who is obliged by law to execute it, or whose duty it is to do the thing required. But where it was prosecuted to com- pel commissioners of highways to do a certain act ; it was held Vol. II.— 5 66 MANDAMUS. [CH. XIX. that it need not, in the first instance, be directed to the commis- sioners by their individual names, and that it was only in ease of disobedience to the writ, that they were liable to be proceeded against personally. 16 Johns. 61. {a) And where it was issued to compel a cashier of a bank to submit a book to one of the directors for inspection, where he had refused to do so, and such refusal had been approved by the board of directors ; it was held that the writ might properly be directed to the cashier alone; and, it seems, it would not have been improper to have directed it, also, to the directors, especially as they had had notice of the application for the writ, and several of them had shown cause against it. 12 Wend. 187. If the writ is wrongly directed, as, for example, to the mayor, aldermen, and commonalty of Ripon, and the return shows that they were incorporated by the name of " the mayor, burgesses, and commonalty," &c., the proceedings will be irregular, and the writ- will be quashed. 2 SalJc. 443. And so the writ was quashed where it was directed to the mayor and aldermen of Hereford, to compel the admission of a person to an ofiice, and it appeared that in fact, the mayor only was to admit. Id. 701 ; and see Id. 699. If the writ is wrongly directed, such misdirection may be specially returned. Id. 434 ; or it may be superseded on motion, Id. 701 ; 1 Stra. 56 ; see further on the subject of direction, 2 Johns. G. M ed. 217-64, 66, note, and the cases there cited. But a,mendments of the writ may now be allowed the same as process in ordinary actions. Code, § i-11,post, "Amendments." An alternative mandamus is in the nature of a rule to show cause. 10 Wend. 25, 30 ; 3 How. 166. In it the relator sets forth his title, or the facts upon which he relies for the relief sought, and the defendant is required by it to do the particular act asked for, or to show cause. The title of the relator must be clearly and distinctly stated in the writ, and in such form, that the facts alleged may be ad- mitted or denied ; and so that the defendant may at any time after a return, and before a peremptory mandamus is awarded, object a want of suflB.cient title in the relator to the relief sought^ (a) Whether, when the object sought is the enforcement of a duty resting upon a board of ofBcers in their collective capacity, the alternative mandamus is defective merely because, though addressed to all the members of the board, it is addressed to them individually, instead of colleotively, qucere? 5 Ahb. 241. CH, XIX.] MANDAMUS. 67 or show any other defect in substance. Id. ibid. ; 2 Corns. 490 ; 15 Barh. 607 ; 3 How. 30 ; 7 Id. 81. And it is not enough to refer, in the writ, to the affidavits and other papers on file, on wliich the order for the mandamus was made ; though, it seems, such reference will be permitted to show the amount of a sum of money claimed ; but not the right of the relator thereto. 10 Wend. 25, supra. Thus, where the writ was directed to the canal com- missioners, requiring them to pay to the relator certain moneys, " according to the order and certificate of the canal board and assignment, &c., mentioned in the affidavits on file, in our Supreme Court of judicature," &c. ; it was held defective, and that the affidavits referred to formed no part of the record, and could not, therefore, be considered by the court. 10 Wend. 25 ; and see 7 Id. 476 ; 15 Barl. 607. And so, where the writ com- manded the defendants to correct an assessment, or show cause, &c., and asserted generally that injustice had been done to the relators in assessing their property, and that they had been un- justly assessed, and that the defendants had refused to correct the erroneous assessment — it was held that those allegations were not sufficient, of themselves, to entitle the relators to relief " They should have gone beyond that," said the court ; " and stated the particulars, in order that it miglit be seen from them that the charge was well founded, and that the defendants might be enabled specifically to answer the complaint." 15 Barh. 613, supra ; and see 2 Johns. Gas. 2d ed., 217-66, note. So, where the writ is sought to compel a referee to settle a case and exceptions, according to- the evidence on the trial, it should contain appropri- ate recitals from which it will be seen that the case and exceptions, when settled in the manner required by the writ, will give a true history of the trial, especially in the particulars therein specified. 35 Bark 105. But where the writ is issued to compel a subordinate coui-t to seal a bill of exceptions, it need not set forth the bill, i Cowen, 73. And if the production of records be the object of the writ, they need not be specifically described ; a general description is sufficient. 1 Sid. 31 ; 3 Steph. JV. P. 2321. The writ should also set forth, with sufficient certainty, the duty to be performed, 2 Stra. 897, 857 ; 6 Mod. 310 ; 2 Id. 316; especially as the peremptory writ is required to correspond with it in this respect. 1 Jlill, 50 ; 12 Bari. 446. And it should not 68 MANDAMUS. [CH. XIX. demand too much ; otherwise, judgment will be given for the defendants. 1 Eill, 55 ; and see 39 Barb. 523 ; 35 Id. 105. The writ should be made returnable at a special term. See Sup. Court Rules, No. 40; 12 Bml. 219. But an ob- jection that it is not made returnable at the special term will not be allowed after the return has been made. 11 B.ow. 89. And though the writ should be made returnable at the special term, yet the court, in one case, entertained the motion for the mandamus at the general term, where the questions involved were important, and the writ had been made returnable at that term, and no objection had been made. 12 Barb. 219, supra ^ and see 1 Code R. 135. In the ease last cited, the motion was heard in the first instance at the general term, notwithstanding objection was made thereto ; but the rules of the Supreme Court, which then authorized such motion, have since been abrogated in that respect. See Sup. Court Rules, No. 40, and Rule 51, of 184Y. The alternative mandamus should be tested, signed, and sealed, in the usual manner. 1 Burr Pr. 95, 97 ; 2 lb. 177. It is not process, however, within the meaning of the statute regulating the test and return of process. 13 Wend. 649, 655, note j 3 How. 164. For form of alternative mandamus, see Appendix, No. 447. When and how served.'] The alternative mandamus should be served at least eight days before the day specified in the writ for showing cause. 3 How. 164. The service is made by showing the original writ and deliv- ering a copy thereof. 4 Gowen, 73, 403 ; 1 Johns. 64. When directed to the judges of an inferior court, service may be made in term time or in vacation, lb. ibid. ; 7 Wend. 536 ; though ^yhere the application is to compel an inferior court to try a cause, service should be made in term. 1 Hovj. 114. When directed to a county court, service upon such of the judges as are sitting in open court, is suflBlcient. 1 Call. 562. Amendment of writ.'] If there are any irregularities in the writ, it may be amended at any time before it is returnable. Bac. Ahr. J/.uidamus, B. ; 6 Mod. 133 ; Doug. 135 ; 5 Abb. 241. But an ,i;ncndment will not be permitted after the return, especially if CH. XIX.] MAN-DAMUS. 69 the return lias been traversed. 4 Term, 690 ; but see contra, 35 Barb. 114, j)er Bockes, J. See also on the subject of amend- ments, 2 Bev. Stat. 424, title 5, and Code of Procedure,^ §§ 169 to 177, the provisions of which are made applicable to writs of mandamus. 2 Bev. Stat. 424, sec. 10 ; laws of 1863, p. 664, amending § 471 of the Code; (a) 35 Bari. 114, Under the English practice, the amendment is made by a judge's order. 2 Johns. Cas. 2d ed. 217-67, noU, citing 1 Oude Or. Pr. 193 ; 3 Steph. N. P. 2325. If there is a mistake in the writ, the prosecutor may quash it, and have a new one before it is returned. Id. Motion to quash or to set aside the writ.] After the alterna- tive writ is served, the defendant may move the court to quash or to set the same aside. 4 Cowen, 73. The motion is founded upon some irregularity in the issuing of the writ, 19 Wend. 67 ; or upon defects in the form or substance of the writ. 10 Id. 25 ; 1 Row. 186 ; 1 Stra. 55 ; 2 Salk. 699 ; Id. 701 . The motion should be made before the return to the writ, except in cases of defects of substance, which may be taken advantage of at any time before the peremptory mandamus is awarded. 10 Wend. 31, and cases there cited; and see 2 Corns. 492 ; 14 Barb. 52 ; 11 Bow. 89 ; 2 Johns. Cas. Id ed. 217-67, 68, notes. The motion to quash is in the nature of a demurrer, and admits the facts recited in the writ. 7 How. 290. Proceedings if return is not made.] The party to whom the alternative writ is directed, is required to make return thereto, and for a neglect so to do, such party may be proceeded against by attachment, as for a contempt, in the manner prescribed in the thirteenth title (2 Pev. Stat. 534) of chapter eight of part third of the Revised Statutes. 2 Pev. Stat. 686, sec. 54. See those proceedings in Chapter vii. of this work. Where the mandamus is directed to a corporation, to do a cor- porate act, and no return is made, the attachment is granted only (a) It is provided by this amendment to § 471, that " in actions or proceedings by mandamus, amendments of any mistakes in the process, pleadings, or proceedings therein may be allowed, and shall be made in conformity to the provisions of chap- ter six, title sii(§§ 1G9 to 177) of the second part of the Code of Procedure." 70 MANDAMUS. , [CH. XIX. against those particular persons who refuse to pay obedience to it ; but where it is directed to several persons in their" natural capacity, the attachment must issue against all, though when they are before the court the punishment will be proportioned to their offense. 2 Johns. Cas. ^d ed. 217-69, tioU, citing Mil. 8 Geo. II. ; Bui. N. P. 201 ; 1 Oude Or. Pr. 189 ; 2 Salk. 429. If the writ be directed to a " town council," and they adjourn the corporate assembly in order to prevent the return being made, the members will be punishable for contempt. Id. ibid. ; 10 Mod. 56. Further time to make 7-eturn.] If the defendant desires fur- ther time in which to make a return, he may apply to the Supreme Court, or to a justice thereof, for an order enlarging the time, the same as in personal actions. 2 Pev. Stat. 587, sec. 59 ; 1 Johns. 64 ; 4 Cowen, 73, 403 ; 1 Barb. S. C. P. 558 ; Sup. Court Pules, No. 22. The return.] The person, body, or tribunal to whom the alternative mandamus is directed and delivered, is required to make return thereto, 2 Pev. Stat. 586, sec. 54; 2 Johns. Gas. 2d ed. 217-69, note, and cases there cited : and he cannot demur to the writ. 6 Abb. 30. But no return is necessary where the writ has been quashed ; nor where the defendant concludes to put an end to the controversy by performing the act required. 10 Wend. 31. The return should be made within the time mentioned in the writ, or within the time allowed by the order enlarging the time, if such order be obtained. 2 Pev. Stat. 586, sec. 59. And it is no excuse for not making the return that the writ has not been returned and filed. 4 Cowen, 73, 76, 403. The return should deny the facts stated in the writ, on which the claim of the relator is founded, or show other facts in law sufficient to defeat the relator's claim. 10 Wend. 25 ; 14 Barb. 52 ; 11 How. 89 ; 32 Barb. 473. Facts should be alleged in it, and not the evidence from which those facts are inferred. " 10 Wend. 32 ; 2 Goms. 496 ; 35 Barb. 105. It should be positive and certain, 2 Corns. 496 ; 1 Id. Paymond, 559 ; and not argu- mentative. Id.; Doug. 158; 5 Term. ^.66; 6 Mod. 309; 18 Ebw. 152^^. 10 Abb. 233 ; nor evasive, 1 Barb. S. G. P. 34. CH. Xixj MANDAMUS. . 71 Several matters may be returned, but they sbould be consistent ; for if tbey are inconsistent, the whole will be quashed, because the court will not know which to believe. 2 Salk. 436. But if the return consists of several independent matters not inconsis- tent with each other, some of which are good, in law, and some bad, the court may quash the return as to such as are bad, and put the relator to plead to or traverse the rest. 2 TerTn M. 456 ; 5 Id. &Q ; 6 Id. 493. But certainty to a common intent will, in general, be sufficient ; and the court will not intend inconsistent facts, for the purpose of making it bad. Doug. 159 ; 2 Salk. 431. The return should state all the material steps taken by the defendant, precisely as they occurred ; and should, in itself, or by express adoption of the allegations in the writ, either in whole or in part, state the case which makes out the defendant's justi- fication. It may set up any nu/nber of facts constituting good reasons for not performing the act which the writ seeks to compel, if they exist in point of fact. 32 Barb. 473. The return must be good, tested by the ordinary rules of pleading, both in form and substance. And the relator may demur or plead to all or any of the material facts contained therein. 35 Id. 105; per Bockes, J. An allegation in a return that the law under which the relief is claimed is unconstitution-al and void, is not a fact, but an averment of a principle of law, whicli will be struck out on motion. 11 How. 89. And so, if the return contains anything more than a full answer to the substantial averments in the writ, it ^vill be rejected as surplusage, or struck out on motion. 2 Corns. 496. If the defendant makes a false return, he will be liable to the relator for the damages occasioned thereby. Thus, where the supervisors made a false return to a mandamus sued out by an individual whose land had been taken for a highway, and the relator had been kept out of the damages to .which he was entitled from the town, it was held that the defendants were properly liable in damages to the extent of the interest upon the damages assessed. 28 New York, 112; and see 2 B&v. Stat. 587, sees. 57, 58. The court may receive a return without a verification, 1 Sid. 227 ; or they may require such verification. Pol. 455 ; Ld. 72 MAIJDAMUS. . [CH. XIX. Raym. 365. The return need not be signed by or on bebalf of the party making it ; and if it be made by a corporation, it need not be signed nor sealed. 2 Johns. Gas. %d ed. 21Y-74, note^ citing 1 Salk. 192; Skin. 368; Com. Dig. Man. 2; and see 1 Ld. Raym. 228. See, further, on the subject of returns to writs of mandamus, 2 Johns. Cas. ^d ed. 217-69 to 74, notes ; and for form of return, see Appendix, No. 448. Amendm,ent of return.] The defendant having made and filed a return, may desire to amend it. But amendments will be allowed with caution, (a) In one ease, the court, after a verdict on the traverse to a return, refused to allow the defendants to amend the return by setting forth a different constitution of the corporation. 7 Term R. 699; and see 2 Johns. Gas. 'id ed. 'iiYl-1^. Clerical mistakes may be amended after the return is filed. Id.; Doitg. 135. "* Motion for a further return.] If the return made by the defendant is thought by the relator to be evasive, or otherwise insufficient, he may apply to the court for a further or supple- mentary return. 9 Wend. 429, 430 ; 7 Id. 475. But -vyhere a motion is made for a further return of additional facts, the motion will be denied, unless such additional facts are set forth in the alternative writ. 3 How. 30. Motion to quash and to strike out return.] If the return be defective upon its face, as, if several matters be returned which are inconsistent, the relator may apply to the court to quash it, 2 Salk. 436 ; 4 Burr. 2041 ; Cowp. 413 ; and it may be quashed as to part. 2 Term R. 456; 5 Id. 56 ; 6 Id. 493. And so, if the return contain anything more than a fuU an- swer to the substantial averments in the writ, the improper mat- ter will be rejected as surplusage, or struck out on motion. 2 Corns. 496. And in like manner if a portion of the return is alleged to be immaterial or argumentative, it will be struck out. (a) By an amendraont to § 411 of the Code of Procedure (Laws of 1863, p. 664), the provisions of the Code, §§ 169 to 171, are to apply to proceedings upon mandamus, See ante, p. 69, note. CH. XIX.] MANDAirirs. 73 11 How. 89 ; 8 Id. 358. A demurrer in such eases, would be improper. Id. Hid. ; 4 Corns. 496. So, the return will be quashed if it is evasive ; as where a mandamus required the inspectors of election to return whether the relators did not receive the greatest number of votes, and whether they did not declare them duly elected, a return that they were not elected by the greatest number of votes, was held to be evasive, and was quashed. 11 Ahh. 168. The motion to strike out parts of a return may be made on the motion for a peremptory mandamus notwithstanding the return. 9 Id. 258. Notice requiring relator to demur or plead to return.\ The return to the writ of mandamus having been filed, the party making such return may serve a notice upon the relator requiring him to demur or plead thereto within twenty days after such service, (a) Sup. Court Rules, No. 51. For form of notice, see Appendix, No. 449. Proceedings if relator does not demur or plead.l If no plea or demurrer to the return is interposed, within the time required, either party may notice the matter for a hearing at the next or any subsequent special term ; at which the same may, according to the practice of the court, be heard as a non-enumer- ated motion ; and the same shall be heard and disposed of on the said return. Sup. Court Hules, No. 51, supra. For form of notice of hearing, see Appendix, No. 450. The relator having failed to demur or plead to the return within the time required, the facts alleged in the return are thereby (a) The rule adopted by the Supreme Court in 1858, in respect to proceedings upon mandamus and prohibition, materially altered the practice in such cases. The formen rules provided that "the return to a writ of mandamus or of prohibition, where such return shall be adopted by the party, having been filed, a rule may be entered requiring the relator to demur or plead thereto in twenty days after notice of the rule, or to move at the next bpacjal term thereafter, for such rule as he may require ; and in case of default, on filing an affidavit showing such default, a rule may be entered dismissing such writ and all subsequent proceedings, with costs." Svp. Court Bules, 1856, No. 43; and see Rules of 184t1, No. 75; 10 Wend. 632.- The pleadings in mandamus are the same as under thg former system of pleading ; and the rules prescribed by the Code of Procedure have no appUoation to them. Code, § 471 ; 16 Sm. 4 ; <,. u. 5 Abb. 372 ; and see 6 Sow. 179 : lb. 319 ; 32 Barb. 47.3. 74 MANDAMUS. [CH. XIX. admitted to be true, and the case will be determined by the court the same as if he had formally demurred to such return. See 6 Wend. 559, 560; 7 Id. 475 ; 10 Id. 632 ; 1 Barb, S. O. JR. 379, 384. Demurrer, plea, <&c.] At the common law, the relator was not permitted to traverse the return, notwithstanding that it might be false in fact ; but the remedy was either by an action on the case for a false return, or if the matter concerned the public, by indictment against the person making the return. 2 Johns. Gas. 2d ed. 217-75, note. But the statute has changed the common law in this respect, and it is now provided that whenever a return shall be made to an}' writ of mandamus, the party prosecuting such writ may demur or plead to all or any of the material facts contained in the return, to which the person making such return, shall reply, take issue or demur ; and the like proceedings shall be had therein for the determination thereof, as might have been had, if the person prosecuting such writ had brought his action on the case for a false return. 2 Rev. Stat. 586, sec. 55 ; 10 Wend. 32; 3 How. 380. A similar statutory provision also existed previous to the Revised Statutes. 1 R. L. 107, sec. 2 ; 14 Johns. R. 61. The practice under the above provision of the Revised Sta- tutes is stated by Sutherland, J., thus : " Although these statutes contemplate formal written pleadings in the ordinary mode of conducting suits, the practice of the court is virtually to allow pleadings ore tenus ; that is, the relator is permitted to discuss the return, and to ask for a peremptory mandamus, and whilst he does not put in a form,al demurrer, the case is considered as embraced in the description of non-enumerated business, and' is heard as such ; but if a formal demurrer is- interposed, it becomes enumerated business, and can be heard only at the stated terms. It is optional with a relator whether it shall be considered enu- merated or non-enumerated business, unless the court specially direct formal pleadings to be interposed. No injury can result to the defendant in consequence of this privilege allowed the relator, for if he wishes to carry up the cause for review the court permits him, after its decision, to made up and file formal pleadings, so that a record may be made up ; which privilege, however, is not granted to the relator, who has chosen to ask for CH. XIX.] MANDAMUS. 75 a peremptory mandamus, without formally demurring ; if dissat- isfied with the decision of the court, he cannot carry ap the cause for review." {a) 6 Wend. 559, 560 ; 10 Id. 632 ; and see, also, to the same effect, jcer Nelson, J., T Id. 475 ; and^er Welles, J., 1 Barh. S. a B. 379, 384. But although the relator may demur or plead to the return, yet he cannot do both. 1 Wend. 38. The court will not permit him to dissect the return into as many parts as he sees fit, plead to some portions and demur to the residue. Ih. And where the return alleges several material facts, the relator, in pleading to it, need not deny all of the facts ; but he may deny any one or more of them, and omit to plead to the others, in which case the facts not denied will be taken as true. 3 How. 381 ; 16 Mod. 174. If a demurrer is interposed, the question will be upon the sufficiency of the pleadings, the same as in an ordinary action, and the party must fail who commits the first error in matter of substance. 35 Barl. 105 ; 11. 110, par Bockes, J. Where portions of the return are alleged to be immaterial or argumentative, the relator's remedy is not by demurrer, but by motion to strike out. 2 Corns. 496 ; 11 How. 89 ; 8 Id. 358. Nor will the relator be permitted to demur specially to the return ; so held where the mandamus was directed to a subor- dinate court, to compel them to sign and seal a bill of excep- tions, and the judges returned that they refused to seal tlie bill unless the same should contain all the evidence relating to the matters of law thesein excepted to, and which they alleged the bill did not contain, and to which return the relator demurred, speci- ally, that it was not alleged in the return that the bill did not contain all the evidence material and necessary to present the question of law raised by the bill. 9 We7id. 429. And per Sutherland, J., in that case : " This court will not permit subordinate tribunals to be harrassed with special demurrers to returns made by them. If the relator is dissatisfied with a return made, conceiving it to be evasive, or the construction of any matters alleged in it to be of doubtful character, upon sug- (a) But the practice is no doubt changed, with respect to the right of the relator to have the case reviewed, notwithstanding he has not formally demurred to the return. Such review may now be had by appeal. Laws of 1854, p. 592, ,anfe, p. 14, note h; 19£orJ.657; 2&How.\&l\ Code of Pro. % 11, sub. Z ; First Rep. of Gom. on Code, p. 11 to 20; and see^o*^ under the head of "Appeals, and the proceedings therein." 76 MANDAMUS. [CH. XIX. gestion of its insufficiency, a further or supplementary retui-n will be ordered, and thus the rights of a party as effectually pro- tected as if permitted to demur specially." Ih. 430. If the relator takes issue on the return to the alternative writ, instead of demurring, he cannot afterwards question its legal sufficiency ; and if the verdict is against him, the per- emptory writ will be refused. 26 New York, 316. If the parties desire further time in which to demur, plead, &c., it may be obtained on application to the court or to a justice thereof, the same as in personal actions. 2 Rev. Stat. 587, sec. 59. Issue of law, and proceedings thereon.'] If the relator demurs to the return, or the defendant demurs to the plea put in to the return, the facts alleged in such return, or such plea, are thereby admitted to be true ; and the question becomes one of law, and should be put upon the calendar and brought on for argument as in personal actions. And so, it is substantially an issue of law where the relator, without formally demurring to the return, applies to the court for a peremptory mandamus, notwithstand- ing the return. In such case, also, the facts set forth in the return are admitted to be true, and the question is one of law, whether, from the facts admitted, a mandamus should be awarded. 7 Wend. 4Y5 ; and see also, 6 Id. 559 ; 10 Id. 632 : and 1 Barl. 8. C. E. 379; Sup. Court Rules, No. 51. Issue of fact and, proceedings thereon.l If the facts in the return are denied, or an issue of fact exists in any other way, on the pleadings, the case must go down to the circuit for trial. 7 Wend. 475, supra. The case is prepared and brought on for trial, the same as in personal actions. Allegations in the return, which are denied by the relator, in his plea, and not proved, are not to be taken as true on the trial. 12 How. 51. Though where the relator, instead of denmrring to the return, put in a plea, taking issue upon all the material allega- tions in the return — it was held that he thereby admitted that, upon its face, the return was a sufficient answer to the case made by the alternative writ. 24 Barh. 341. The relator holding the affirmative of the issue, the return is to be taken as true, until it is falsified upon the trial. lb. 34S. CH. XIX.] MANDAMUS. 77 Where the issues are submitted to a jury, the jury may render a general verdict, instead of finding upon each separate issue ; and the court will give effect to the verdict, if necessary, by applying it to the issues separately. 35 Barb. 644, s. c. ; 14 AU. 151 ; n. 158, s. o. 35 Barb. 651. The court will, in a proper case, direct the jury what verdict to render. Thus, where there is no evidence, or the weight of evidence is so decidedly in favor of one side, that the court would set aside the verdict as against the evidence, if rendered, it is the duty of the court to direct the jury what verdict to render. 11). On the trial of the issue, the relator, sueing in the name of the people, is a competent witness in behalf of the plaintiffs under § 471 of the Code. 14 Abb. 305, s. c. 23 How. 306. Issues of fact are to be tried in the county within which the material facts contained in the mandamus shall be alleged to have taken place. 2 Rev. Stat. 586, sec. 56. Damages.] In case a verdict be found for the relator, or judgment be given for him upon demurrer, or by default, he shall recover damages and costs, in like manner as he might have done if he had brought his action on the case for a false return. 2 Hev. Stat. 587, sec. 57. Thus, where a mandamus was issued against supervisors, in favor of an individual whose land had been taken for a highway, and who, had been kept out of the damages to which he was entitled from the town, and the supervisors made a false return to the writ ; it was held that they were properly made liable in damfiges, to the extent of the interest upon the damages assessed. 28 New York, 112. The damages are either assessed by the jury on the trial of the issues of fact joined, or if the judgment be by default, or on demurrer, they are assessed on a writ of inquiry, as in personal actions. See 2 Burr. Pr. 179. A recovery of damages under the statutory provision last cited, against any party who shall have made a return, is a bar to any other action against such party, for making such return. 2 Bev. Stat. 587, sec. 58. •> Judgment a/iid execution.] Judgment is entered on the de- 78 MANDAMUS. [CH. XIX. cision of the court, or the verdict of the jury, as in personal actions. But, it seems, a peremptory mandamus will not be awarded after verdict or judgment by default, without notice to the defend- ant, and motion to the court for that purpose. 3 How. 379, 382, yer Barculo, J. Nor can judgment for costs, in such case, be entered, except by the special order of the court. lb.; and see post, p. 81, " Costs." The judgment must conform to the verdict of the jury ; and there is no judgment iion obstante veredicto, in these proceedings. 26 New York, 316. If a party has judgment for costs, or for damages and costs, execution issues for the same, as in personal actions. For form of judgment record, see Appendix, No. 451. Peremptory mandamus, and how obtained.] If a verdict, on the trial of an issue of fact, be found for the relator, or judgment be rendered for him upon demurrer or by default, a peremptory mandamus is directed by the statute to be granted to him without delay. 3 Bev Stat. 587, sec. 57. This language of the statute would seem to authorize the peremptory writ to issue immediately on deiuult, or on the decision by verdict or upon demurrer. But see 3 Mow. 380, 382, where the practice in cases of mandamus on issue and verdict, or judgment hy default, is stated by Barculo, J., thus: "After the facts of the case are settled, either by an issue and verdict, or by default of one of the parties, the relator, to obtain a perempttry mandamus, must move the court on notice to the opposite party, upon the return, pleadings, verdict, &c. ; when the court can, in view of the whole case, pronoimce upon the rights of the respective parties." The relator may, also, on the coming in of the return without formally demurring or pleading to the same, apply to the court, on notice, for the peremptory mandamus. In such case, the facts alleged in the return are admitted to be true ; and the question is one of law, whether upon the facts admitted, the relator is entitled to the peremptory mandamus. 6 Wend. 559 ; 7 Id. 475; 10 Id. 632; 1 Barb. S. C. E.m^ ; Sup. Court Rules, No. 51. If the (.'ourt deteimine, on such motion, that the return is in- sufficient, and tlie relator is otherwise entitled to the relief sought, a peremptory mandamus will be awarded. Id. ibid. The papers CH. XIX.] MANDAMUS. 79 on wliich the alternative mandamus is granted, should he pre- sented to the court on the hearing of the motion, for the purpose of apprising the court of the purport and intent of the pro ceedings, but not to affect the matters contained in the return. Y Wend. 476; 10 Id. 30, 31. And the relator should state in writing the points relied upon in support of the application. 2 Id. 255. Where both the parties are heard on the application for the alternative writ, and there is no dispute about the facts, and the law is with the application, the peremptory mandamus will issue in the first instance. 7 Cowen, 526 ; 4 Ahh. 36 ; 39 Barb. 522. And it will issue in the first instance where it is apparent that no excuse can be given for the non-performance of the act com- plained of, and the relator's rights might be endangered by delay. See 14 Johns. 325. And so where the defendant on the appli- cation for the alternative writ, shows cause against it, but not satisfactory, the peremptory writ will be granted. 12 Wend. 183 ; 6 Cowen, 518. But in such case, on suggestion that the de- fendant wishes to bring error, the court will change the rule into one for an alternative mandamus, so that the facts may be put on record by a return. Id. ihid. / but see ante, p. 64, note. And where the alternative writ has been regularly served, the court may in their discretion, upon due proof of such ser- vice, order a peremptory mandamus, without compelling a return. 1 Johns. 64. If, however, the defendants have not had time to prepare a return, the court will extend the time for that purpose, before permitting the peremptory writ to issue. 4 Cowen, 73 ; Ih. 403. And so the peremptory writ will be awarded where the return is insufHcient. 7 Johns. 549 ; 6 Cowen, 579. So if it is evasive, 1 Barh. 8. C. E. 34. So, where the court has sustained the return on a motion to quash it, a peremptory mandamus may issue, although the issues raised by the return are found in favor of the defendant. 14 Abh. 151 ; s. e. 35 Barh. 644. The peremptory mandamus must correspond with the alter- native writ in respect to the thing required to be performed. 1 Hill, 50 ; 12 Barb. 446 ; 10 Abb. 233 ; s. o. 18 How. 152. And if the relator is not entitled to the relief demanded iu the alter- native writ, his motion for a peremptory mandamus will be 80 MANDAMUS. [CH XIX. denied, although it appears he is entitled to a portion of the relief. Ih. If the peremptory writ is awarded, an order to that effect should be entered with the clerk. And if costs are granted, their allowance should be inserted in the order awarding the per- emptory mandamus, deepest, "Costs." After the court has awarded the peremptory mandamus, there is no power to stay the proceedings upon it, 2 Barh. S. G. R. 555 ; though it would be otherwise upon appeal from the order gi-anting it. Laws of 1854:, 2^. 592, ante, p. 19. See further on the subject of the peremptory mandamus, 2 Johns. Gas. 2d ed. 211-78, note ; Bac. Abr., Mandamus, M ; and for form of peremptory writ, see Appendix, H^o, 452. Where and how motion for peremptory writ hr ought on.] The motion for the peremptory mandamus, where it is founded upon the return, and the relator has not formally demurred, is a non- enumerated motion, and is brought on the same as other non- enumerated motions. 6 Wend. 559 ; 7 Id. 474 ; 10 Jd. 632 ; 1 Barb. S. G. R. 379 ; Sup. Gourt Rules, JSTo. 51. If there is a demurrer to the return, or an issue of law upon the pleadings, the case is put upon the calendar as an enumerated motion, and brought on for argument in the usual manner. Id. ibid. In either case it should be noticed for the special term, Sup. Gourt Rules, 1849, No. 31 ; lb. 1858, No. 40 ; 10 How. 353 ; 1 Abb. 460 ; 1 Gode R., N. S. 338 ; and in the city of New York, at special term at chambers ; though formerly, upon demurrer to the return, or on issue of law upon the pleadings, the argument was brought on at the general term. 1 Barb: S. G. R. 384 ; 2 Id. 557 ; 6 Wend. 559, 560 ; 7 Id. 475. It is optional with the relator whether the motion shall be considered enumerated or non-enumerated business, unless the court specially direct formal pleadings to be interposed ; if he elect to have it considered non-enumerated, the court, on the ap- plication of the defendant, after its decision of the question, will permit formal pleadings to be made up and filed, and the defend- ant may thereupon have the judgment reviewed on appeal, the same as in actions, lb. ihid. ; or either party may now appeal from the decision of the court as from a final order, without making up a formal record of judgment. Laws of 1854, j?. 592, CH. XIX.] MANDAMUS. 81 ante^p. 14, note I ; 19 Barh. 657 ; 28 How. 167 ; Code of Pro. sec. 11, sub. 3 / Fi7\H Eep. of Com. on Code, p. 11 to 20 ; thougli formerly, the relator, by moving upon the return, lost the right to have the decision reviewed, if adverse to him. 13 Wend. 130 ; 23 Id. 648, and see post, " Appeals and the proceedings therein." Disobedience of mandamus, and proceedings thereon.'] The mode of enforcing obedience to the peremptory writ of manda- mus, is by attachment, founded upon affidavits showing that the peremptory writ has not been obeyed, and that it was duly served upon the proper parties. 2 Gaines, 97. "Where the affidavit showed that the defendant had kept out of the way, so that per- sonal service of the peremptory writ could not be made upon him, and that the writ had been left at his house, the court ordered him to show cause why an attachment should not issue. 12 Mod. 312 ; a7id see 2 Johns. Cas. 2d ed. 217-79, note. Whenever the peremptory writ shall be directed to any pub- lic officer, body, or board, commanding them to perform any pub- lie duty specially enjoined upon them by any provisions of law, if it shall appear to the court that such officer, or any member of such body or board, has, without just excuse, refused or neglected to perform the duty so enjoined, the court may impose a fine not exceeding two hundred and fifty dollars, upon every such officer or member of such body or board ; and such fine, when collected, shall be paid into the treasury. And the payment of such fine shall be a bar to any action for any penalty incurred by such officer or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined. 2 Hev. Stat. 587, sec. 60. Costs.] In suits and proceedings upon writs of mandamus, and on appeals therein, the court may, in its discretion, award or refuse costs to any party therein. Zaws of 1833, p. 395, sec. 6 ; Laws of 1854, p. 592, sec. 3, ante, p. 14, note b ; 19 Barb. 657 ; 6 Abb. 30 ; 14 Id. 305 ; s. c. 23 How. 306 ; 20 Id. 278. Under the authority here given, the court will award or refuse costs, as the equity and justice of each particular ease may re- quire. 1 Barb. 8. C. R. 557. And costs will not be allowed to be entered against a party unless by the special order of the Vol. 11^6 82 MANDAMUS. [CH, XIX. eoTirt. 7J. y 3 How. 380. Where a rule for a peremptory mandamus is obtained by default, and such a rule is silent as to costs, and there is no evidence to show that the court intended to grant costs to the relator, such rule will not be amended so as to provide for the payment of costs. 1 Bar^. supra. In addition to the above statutory provisions, it is also pro- vided by statute, that upon refusing an alternative or a peremp- tory mandamus, the court may award costs to be paid by the party applying for such mandamus. 2 Rev. Stat. 619, sec. 40. And whenever a peremptory mandamus shall be granted upon the coming in of a return to a previous mandamus, without any issue of fact or of law being joined upon such return, the court shall award costs to the relator in the same manner as if such peremptory mandamus had been awarded upon a judgment on demurrer to such return, unless it shall appear on such return hat there was some reasonable excuse for not having done the act required. Ih. sec. 41. The statutory provisions, last cited, do not authorize costs to be awarded to the relator, except in those cases where a peremp- tory mandamus shall be ordered -upon the coming in of a return to a previous writ, 10 Wend. 59S ; 1 Barb S. C. R. 559 ; nor do those provisions affect the rale above laid down, that costs are in all cases to be granted or refused in the discretion of the court. Costs may be granted, therefore, notwithstanding that no return has been made, and there has been no appearance on the part of the defendant. Id. ibid. In awarding a peremptory mandamus against judges or other public officers entrusted with the discharge of judicial duties, the practice of the court is not to grant costs against them. Anon. 19 Wend. 157; 2 Id. 301, 303; 5 Abb. 232; though where the judges, instead of obeying the alternative writ, make a return thereto, and on the coming in of the return, the peremptory man- damus is awarded, the relator will be entitled to the costs of the proceedings. 18 Wend. 534 ; " The judges," says Bronson, J., " may always protect themselves against costs, by obeying the alternative writ. Where they omit to do so and make return, it may be presumed that they are indemnified against costs by the party in interest." lb. 537 ; and see 10 Id. 598. And where a party who is not the defendant in the writ, OH. XIX.] MANDAMUS. 83 though the real party in interest, resists a mandamus by requir- ing the relators to plead or demur, and subsequently joins in demurrer, he is liable for the costs on judgment being rendered in favor of the relators. 3 Wend. 304. But it would be other- wise, if he had not appeared in the proceedings, or done some other affirmative act, substantially bringing him in as a party to the suit. And it would not be sufficient to make him liable for the costs that the return was made at his request, and that he opposed tbe issuing of the peremptory mandamus. 2 Id. 301, 303 ; and see 2 Johns. Cas. M. ed. 217-80, note. The costs of the motion on the original application for the mandamus, will also be awarded or not in the discretion of the court. See Rev. JSToies, 3 Eev. Stat, 'id ed., 779 ; 1 Barb. 8. C. R. 557 ; 23 How. 306 ; s. c. 14 Alh. 305. Where the notice of motion asked for costs, and the motion was denied, costs were given against the relator for that reason. 1 How. 222. And although the court may grant costs against the relator, if the motion is denied (2 Rev. Stat. 619, sec. 40, supra), yet the general practice on denying motions for the mandamus, has been not to give costs, especially where the motion is ex parte. 4 Cowen, 548. But where notice of the motion is given to the defendant, which he opposes, and the law is plainly against the relator, the motion will be denied, with costs. lb. : and see 2 Johns. Cas. 2d ed. 217-80, note. If the relator removes from the State intermediate the issuing of the alternative and peremptory writ, the defendant will be entitled to security for costs, and the proceedings will be stayed until such security be filed. 18 Wend. 652. When costs are granted, they are to be at the rate allowed for similar services in civil actions under the Code, Laws of 1854, ante,]). 19, sec. 3 ; 19 Barb. 657 ; 28 How. 167, 172; unless an alternative writ was issued and there has been a return to the same, and pleadings have been put in, and a trial had therein, in which case, the proceeding becomes an action under the Code, and the costs are taxed under the fee bill contained under the Eevised Statutes. 8 Abb. 359, note ; 28 How. 159 ; lb. 471 ; and see 20 Id. 380. If proceedings are commenced against a public officer, and he succeeds in the proceeding, he will be entitled to double costs. 20 How. 378. 84 MANDAMUS. [CH. XIX. Motloi} to set aside the proceedings.] If the peremptory mandamus has heen unfairly or improperly obtained, the de- fendant may apply on motion at the special term to set the same aside. 1 Gaines, 8 ; 2 Barb. 8. C. R. 55Y. So, it may be set aside for irregularity where it is issued after an appeal has been duly perfected to the Court of Appeals. 25 How. 257. Appeals, and the proceedings therein.'] The proceeding to obtain a review of a decision granting or refusing a mandamus, was formerly had bywrit of error. And the writ of error was allowed only upon final judgment rendered after issue joined upon plea or demurrer, interposed on the coming in of the alternative mandamus {a). Thus, on a motion for a peremptory mandamus in the first instance, or for a peremptory mandamus on the return of an order to show cause, the decision on such application was not the subject of review. 3 How. 165 ; 10 Wend. 30 ; 2 Johns. Gas. 2d ed. 217-63, noU. Though, to enable the question to be carried further, the court, on the suggestion of either party, permitted the alternative mandamus to issue, and a formal record to be made up, on which the party dis- siatisfied with the decision might have the case reviewed by a writ of error. 12 Wend. 183 ; 10 Id. 31 ; 6 Gowen, 518 ; 20 Barl. 86 ; 13 Hoio. .305, 309. Again, where the relator moved, on the return to an alternative mandamus, for the peremptory writ, notwithstanding the return, the facts alleged in such return were thereby admitted to be true, and the case was to be determined by the court the same as if the relator had formally demurred to the return. 6 Wend. 559, 560 ; 7 Id. 475 ; 10 Id. 632 ; 1 Barl. S. C. R. 379, 384. In such case, neither party was at liberty to have the decision of the court reviewed ; though the practice was, where the decision was ad- verse to the defendant, to permit him to make up a formal record of judgment, on which the decision of the court could be reviewed by writ of error. Id. ibid; 13 Wend. 130; 23 Id. 648. But this privilege was not allowed to the relator ; if the (a) The only exception to this waa in the case of a contest between the State and Individuals, relating to watSr privileges, &c., on the canal, where, by the statute, a writ of error was allowed to be brought from the decision of the court, notwith- standing no pleadings were had or issue joined in the cause, 1 Bev. Stat. 235, see, 97, 10 Wmd. 30. CH. 2IX.J MANDAMUS. 85 decision was adverse to him, it was final. He chose to ask for the peremptory mandamus, without formally demurring, and, by doing so, deprived himself of the right to have the case reviewed. Id. ibid. But the practice has been ■ essentially changed. Now, the only mode by which the decision of the court can be reviewed, is by appeal. And either party may now have the order of the court, granting or refusing a mandamus, reviewed on appeal, in all cases, whether the order is made on the original application for the peremptory mandamus in the first instance, or on the application for the peremptory writ on the return of an order to show cause, or on the application for the peremptory writ, after a return has been put in to the alternative mandamus, without formally demurring or pleading to such return. Laws of 1854, p. 592, ante, p. 19; 19 Barh. 657; Code of Pro. §§ 8, 11, 127, 333, 471 ; 9 How. 304, per Duer, J. ; s. c. 3 Buer, 616 ; 28 Row. 159; Ih. 470; Laws of 1859, p. 421; 18 Ifew York, 487; 20 Id. 529. And an appeal may also be taken from the final judg- ment, after issue joined upon plea or demurrer, interposed on the return of the alternative mandamus. See Id. ibid. ; 20 Barb. 81 ; 13 How. 305, 309 ; 1 Kern. 563 ; 3 Id. 239. From the order or judgment of the court at the special term, the appeal is to be taken to the general term. Id. ibid / Laws of 1854, p. 592, ante, p. 19 ; 19 Barb. 657. The practice, in such case, is regulated in part by the Code of Procedure ; sections three hundred and twenty-seven, three hundred and twenty-nine, three hundred and thirty, and three hundred and thirty-two, of which, apply to the proceedings on such appeal. lb. (a) In other respects, the usual practice on appeals from orders and judgments in civil actions, is to apply, so far as the same is applicable. The appeal to the general term does not stay the proceedings unless the court or a justice thereof so order. If an order stay- ing the proceedings is obtained, it may be upon such terms as to security or otherwise, as may be just ; such security not to exceed the amoimt required on an appeal to the Court of Appeals. Laws of 1854, ante, p. 19. An appeal may also be taken to the Court of Appeals from (a) See the act of 1854, and the sections of the Code referred to, ante, p. 19. 86 PROHIBITION. [CH. XIX. the order or judgment of the general term. Laws of 1859, p. 421 ; 20 New York, 529 ; and see 18 Id. 487 ; Code of Pro. § 11 ; First Rep. of Com. on the Code, j?. 11 to 20 ; Laws of 1857, vol. 1, p. 753. The practice, in such cases, is regulated by the Code of Procedure, and is the same as in appeals from judgments in civil actions. Id. ibid. The perfecting of the appeal by complying with the provi- sions of the Code, stays all further proceedings in the court below. 25 How. 257. Where a verdict was rendered for the relator for the amount of damages assessed for opening a highway, and the interest thereon as damages ; on appeal to the Court of Appeals from the judgment rendered, the facts being before the court ; it was held that the court might modify the judgment by reversing it as to the sum assessed as damages, and aflSrming it as to the interest allowed as damages, and directing that the judgment be so amen- ded as to grant to the relator the writ of mandamus without delay. 28 New Twh, 112. SECTIO]!^' n. THE WRIT OP PROHIBITIOIT. The writ of Mandamus, as we have seen, is issued to compd the performance of public duties on the part of subordinate courts and corporations and ministerial officers. The writ of Prohibi- tion, on the contrary, is issued to forbid or prohibit a court and party to whom it is divectedi from proceeding in a suit or matter depending before such court, upon the suggestion that the cog- nizance of such suit or matter does not belong to it. 2 Rev. Stat. 587; 3 Steph. Com. 685; Bac. Abr., Prohibition. The Supreme Court is the only court having authority to issue the writ of prohibition in this State, (a) 2 Rev. Stat. 587, sec. (a) In the city of Buffalo, however, the application may also be made to the Supe- rior Court of that city, that court haying, witliin that city, concurrent jurisdiction with the Supreme Court, to issue the writ. Laws of 1857, vol. 1, p. 752. CH. XIX.] PROHIBITION. 87 61 ; 18 AU. 438, s. c. 28 Eow. 477. In England, however, it issues in some cases out of the Court of Chancery, the Common Pleas, and the Exchequer, though usually out of the Court of King's (or Queen's) Bench. 3 £1. Com. 112; Baa. Abr., Pro- hibitian, A. The writ is directed to inferior courts of judicature, whether such courts be temporal, ecclesiastical, maritime, military, &c. ; and to the party whose suit or proceeding is sought to be restrained. Id. ihid. When the writ issues."] The office of the writ of prohibition is to prevent courts from going beyond their jurisdiction in the exercise of judicial power, 2 Hill, 367 ; 1 Id. 201 ; 7 Wend. 518 ; 36 Barb. 341 ; s. c. 14 Abb. 266 ; 23 How. 446 ; 18 Abb. 438, s. c. 28 How. 477 ; 27 Id. 14 ; and it stays both the court and the joa^-^y from proceeding in the matter. lb. Thus, it has been issued to prohibit a court of sessions from proceeding with an appeal in a bastardy case, where they had no jurisdiction to entertain such appeal. 19 Wend. 154. And it lies to prevent the exercise of unauthorized power in a cause or proceeding of. which the inferior tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction. 20 Mew York, 531. But the writ does not issue to deprive an inferior court of a juris- diction which the law in its wisdom has thought proper to give it. 18 Abb. 438, s. c. 28 How. 4:11. The court may grant or deny the writ in its discre'ionj and it ought not to issue where the party has a complete and adequate remedy in some other and more ordinary form. 2 Hill, 367 ; 36 Barb. 341 ; s. c. 23 Row. 446 ; 14 Abb. 266 ; 29 How. 176 ; s. c. 19 Abb. 137. I^or will the writ issue to restrain a ministerial officer {e. g. — a collector of taxes) from 'the execution of process in his hands, 1 Hill, 196 ; nor to prevent an inferior court from issuing an execution ; for this is a ministerial act, 2 Id. 367 ; nor to stay a corporation in the execution of a naked statute power, ministerial in its nature, lb. 15 ; nor to bring under review the proceedings of an inferior court on the ground of their being erroneous merely. Ih. 363 ; 7 Wend. 518. Nor will the writ be awarded in reference to a mere point of practice, where the court has jurisdiction of the general subject of the cause. 12 Ad. <& El. 201 ; 3 Steph. 88 PROHIBITION. [CH. XIX. Com. 686, note; ZQ Barh. 3il ; s. c. 23 How. 446; 14 All. 266; 27 Eow. 14. Application for the writ.] The writ should be applied for ■npon affidavits, by motion, at the special term, in the same man- ner as writs of mandamus. 2 Hev. Stat. 587, sec. 61. As to the practice in cases of mandamus, see ante, p. 61. For form of notice and affidavit, see Appendix, Nos. 453, 454. Tlie affidavits should set forth, plainly and distinctly, the facts upon which the party relies to show that he is entitled to the relief demanded. If the facts alleged in the affidavits appear to the court to be sufficient, the writ will be directed to be issued, 2 Rev. Stat. 587, sec. 61 ; and the rule authorizing it should be entered with the clerk of the court. For form of rule, see Ap- pendix, No. 455. The writ, and how directed.] The writ should be directed to the court, and also to the party whose proceedings are sought to be stayed ; and after reciting or suggesting the facts and pro- ceedings on which it is founded, should command them to desist and refrain from any further proceedings in the suit or matter specified therein, until the next term of the court, and the further order of such court thereon, a,nd then to show cause why they should not be absolutely restrained from any further proceedings in such suit or matter. 2 Rev. Stat. 587, sec. 61. It should be tested, signed, and sealed, as in cases of man- damus. Like mandamus, also, it should be made returnable at the special term, (a) For form of writ, see Appendix, No. 456. Service of the writ.] The writ must be served upon the court and party to whom it is directed, in the same manner as a writ of mandamus. (S) 2 Rev. Stat. 587, sec. 62. Return.] The statute also requires a return to be made by the court, in the same manner as returns in mandamus, (e) For any neglect to make such return, such court may be proceeded against by attachment as for a contempt, in the manner pre- scribed in the thirteenth title (2 Rev. Stat. 534) of chapter eight of part third of the Revised Statutes. 2 Rev. Stat. 587, sec. 62. For form, see Appendix, No. 457. (a) See ante, p. 68. (6) See ante, p. 68. (c) See ante, p. 10. CH, XIX.J PEOHIBITION. 89 Notice requiring relator to ' demur or plead to the return.'] The return to the writ of prohibition having been filed, the party making such return may serve a notice upon the relator, requiring him to demur or plead thereto within twenty days after such ser- vice, (a) Suj}. Court Rules, No. 51. For form of notice, see Appendix, No. 458. Proceedings if relator does not demur or plead.] If no plea or demurrer to the return is interposed, within the time required, either party may notice the matter for a liearing at the next or any subsequent special term, at which the same may, according to the practice of the court, be heard as a non-enumerated mo- tion, and the same shall be heard and disposed of on the said return, (a) Sup. Court Rules, No. 51, supra. For form of notice of hearing, see Appendix, No. 459. Proceedings if party adopts the return.] If the party to whom the writ of prohibition is directed shall, by an instrument in writing to be signed by him, and annexed to the return, adopt the same return, and rely upon the matters therein contained, as sufficient cause why such court should not be restrained as men- tioned in the said writ, such party shall thenceforth be deemed the defendant in such matter ; and the person prosecuting such writ may reply, take issue, or demur to the matters so relied upon by such defendant ; and the like proceeding shall be had for the trial of issues of law or fact, joined between the parties, and for the rendering of judgment thereupon, as in personal actions. 2 Rev. Stat. 58T, sec. 63. For form of writing, adopting return, see Appendix, No. 457. If, in such case, judgment shall be rendered for the party prosecuting such writ, a prohibition absolute shall be issued ; but if judgment be given against such party, a writ of consultation shall be awarded, authorizing the court and party to proceed in the suit or' matter in question. Ih., sec. 65; 3 Bl. Com. 114. For form of writ of consultation, see Appendix, No. 462. Proceedings if the return is not adopted.] If the party to whom the writ of prohibition is directed, shall not adopt such return as above provided, the party prosecuting such writ shall (a) See the former practice, in such case, ante, p. 1i, note. 90 PROHIBITION. [CH. XIX. bring on the argument of such return, as upon rules to show cause ; and he may, by his own affidavit, and other proofs, con- trovert the matters set forth in such return. And the court, after hearing the proofs and allegations of the parties, shall ren- der judgment, either that a prohibition absolute, restraining the said court and party from proceeding in such suit or matter, do. issue, or a writ of consultation, authorizing the court and party to proceed in the suit or matter in question. 2 Rev. Stat. 688, sec. 64; 3 £1. Com. 114; Bac. Ah. Prohibition. For form of prohibition absolute, see Appendix, No. 461. Motion to quash the writ.'] If the writ is defective, or was issued irregularly, it may be set aside or quashed on motion at the special term. And a writ, allowed by a justice out of court, even if returnable at a general term, may be quashed at a special term on motion. 29 How. 176, s. c. 19 Abb. 137. Amendments.] Either party may apply to the court for leave to amend the writ of prohibition, pleadings, &c. 2 Eev. Stat. 425, sec. 10. •") Costs.] Costs, in these proceedings, may be awarded or not, in the discretion of the court, Laws of 1854, sec. 3, ante, p. 19; and see 19 Barb. 658 ; and when awarded, are to be at the rate allowed for similar services in civil actions. Id. ibid; and see 28 How. 167. If, however, there has been a return to the writ, and pleadings have been put in and a trial had thereon, the pro- ceeding will be treated as an action, excepted from the opera- tion of the second part of the Code; and costs therein will be taxed under the fee bill contained in the Eevised Statutes. See Code, § 471; 28 How. 159; lb. 471 ; 20 Id. 380. Appeals and writs of error.] From the decision of the court at the special term, an appeal lies to the general term the same as in mandamus. See Laws of 1854, p. 592, ante p. 19 ; 19 Barb. 658 ; 28 How. 167; and see ante, p. 14 note b. ' The decision of the general term, also, may be reviewed by the Court of Appeals; but such review must be had by writ of error, under the old practice, the provisions of the second CH. XIX.] PROHIBITION. 91 part of the Code on the subject of appeals to the Court of Ap- peals, not applying to proceedings upon prohibition. Code^ % 4Y1 ; 18 New York, 487; and see 20 Id. 529 ; Id. 531 ; Laws of 1859, p. 421 ; {a) ante, p. 14, note h. (a) This act, it wiU be seen on reference to it, applies only to appeals in cases of mandamus ; and does not affect proceedings upon prohibition. CHAPTER XX. THE PARTITIOlSr OF EEAL ESTATE. At the common law, althoxigh partition could be made in every case by the consent of all the owners, yet it could not be compelled by one cotenant against the will of the others, or of any of them, except in the case of coparceners, until the statute of 31 Renry YIII. ch. 1 ; and 32 Renry VIII. ch. 32, extended the writ of partition to joint tenants and tenants in common., Co. Litt. 187; Bac. Air., tit. Joint Tenant I. JSTo. 1 •,Will. Eql Jur. 699. The first act on the subject of partition in this State, was passed imder the colonial government, on the 30th of October, 1708 ; and other acts were subsequently passed from time to time, on the same subject. 1 R. L. 507, note. At the close of the Eevolution, on the 16th of March, 1785, the first act was passed for the partition of lands, under the State government. Ih. j The latter act, with the amendments and alterations subsequently made, was a substantial re-enactment of the English statutes above mentioned, (a) Ih. ; and see Will. Eq. Jur. 699. The several statutory provisions on the subject were revised by the laws of 1813, 1 E. L. 607; and again in 1830, 2 Rev. Stat. 317 ; and the latter revision, with the amendments and alterations since made, constitute the present law of this State. (5) When partition will he mads.] The statute provides that where several persons shall hold and be in the possession of any lands, tenements, or hereditaments, as joint tenants, or as tenants (a) See the history of the statutory law of this State on the subject of partition, reviewed, by Davies, J., 5 Ahb. 92 to 106. (6) For the amendments and alterations since the Revised Statutes, see Laws of 1830, p. 396; 1833,^.311; 1840, i;. 128; 76.321; 1846, p. 204; 1847,J3. 556; lb. 640; 1852, p. 411; 186.% p. 526; X&hl, iml. 2, p. 504; Pvb. Acts, p. 184; 1863, p. 388 ; 76. p. 804. 94 PARTITION. [CH. XX. in common, in which one or more of them shall have estates of inheritance, or for life or lives, or for years, any one or more of such persons, being of full age, may apply for a division and par- tition of such premises, according to the respective rights of the parties interested therein ; and for a sale of such premises, if it shall appear that a partition thereof cannot be made without great prejudice to the owners, {a) 2 Jiev. Stat. 317, seo. 1. The qualification that the persons applying for partition must be of full age, applies equally to all the plaintiffs ; and, therefore, proceedings for the partition of lands cannot be maintained by an infant, either separately or jointly, with adult cotenants in common. 4 Sand. Ch. R. 508. The statute, however, has provided, that whenever an infant shall be possessed of real estate, as tenant in common or joint tenant, the Supreme Court (&) may authorize proceedings to be instituted on behalf of such infant for a division and partition of said real estate, and for a sale thereof, if it shall appear that such partition cannot be made without great prejudice to the owners. Laws of 1852, p. 411, sec. 1. But such authority will not be given, nor will such partition or sale be directed by the court, unless it is made satisfactorily to appear that the interests of such infant require such partition or sale. Ih. sec. 2 ; 26 How. 250 ; 21 Id. 479, s. c. 14 AUb. 299. And where the question was referred to a referee, and he reported "that in his opinion it would be proper to allow the infant to prosecute an action for the partition or sale of the premises," but without setting forth the facts to warrant such a conclusion, — it was held not suflBcient, and the application for leave to prosecute, was denied. See 15 How. 383. And so, the statute provides that whenever it shall appear satisfactorily, by due proof, or on the report of a referee, to the Supreme Court, that any infant holds real estate in joint ten- ancy, or in common, or in any other manner, which would auth- orize his being made a party to a suit in partition, and that the (a) A court of equity may also decree a partition of personal property, or a sale thereof ■where partition is impracticable, and a division of the proceeds, in cases where there is no adequate remedy at the common law. 28 Barb. 290, 292. - (6) If the premises are situated in the city of Brooklyn, application for leave to in- stitute an action in behalf of infants, may also be made to the city court of that city iouis 0/1863, p. 89. OH. XX.] PARTITION. 95 interest of such infant, or of any other person concerned therein, requires that partition of such estate should be made, such court may direct and authorize the general guardian of such infant to agree to a division thereof, or to a sale thereof, or of such part of the said estate, as in the opinion of the court shall be incapable of partition, or as shall be most for the interest of the infant to be sold. 2 Rev. Stat. 330, sec 86, as amended by seo. 46 of oh. 820 ofLmos of 1830 ; Laws of 1847, p. 323, sec. 16 ; li. 344, sec. 77 ; and ^ee post, " Partition and sale of infant's estate." By the statute, aJso, as we have seen, the party applying for partition must hold and be in the possession of the premises as joint tenants, or as tenants in common, in which one or more of them shall have estates of inheritance, or for life or lives, or for years. 2 Rev. Stat. 317, sec. 1, supra. Under this provision, it has been held that the party instituting the proceedings must have an estate entitling him to immediate possession. 19 Wend. 367. Again, that he must not only have a present estate in the premises, as a joint-tenant, or tenant in common, but that he must be in the actual or constructive possession of his undivided share or interest. 2 Barh. Oh. R. 398 ; 5 Denio, 388. And that a party having a mere reversionary interest in the premises, which are in the possession of another having a life estate therein, can- not apply for a partition, not having any possession either actual or constructive. 11 Hoio. 489. And again, that a mere rever- sioner cannot institute proceedings for partition without the con- currence of the owners of the present interest. 2 Paige, 387. In conflict with the above cases, is the case of BlaJcdey agst. Calder and others {a) (13 How. 476), where it is held that although the party applying for partition must be in the posses- sion of the premises, yet it is not necessary that he should be the actual occupant, or should hold an immediate present interest ; and, therefore, that an existing admitted life estate, although cov- ering the whole premises, will not prevent the remainderman from being deemed " in possession," within the meaning of the statute. This decision is in accordance with subsequent and (a) See this case in the Court of Appeals, where the decision of the Supreme Court was affirmed, though not on the ground stated in the court helow. 15 New York, 617. But see to the same efiect as stated in the case in tlie Supreme Court, in tlie opinion of Denio, Oh. J., concurred in by Judges Comstook, Seldeu, and Paige li. 623, 029. 96 PARTITION. [CH. XX. other statutory provisions, which seem to contemplate not only a partition, but a sale of the premises, on the application of the remainderman or reversioner, in cases where there is a life estate in the whole or any part of the premises in question. See 2 Rev. Stat. 325, sees. 50, 51, and Laws of 1847,^. 557, sec. 5 ; \o New York, 625. As a general rule, proceedings for partition may be instituted by one tenant in common out of possession against another who is in possession ; for the possession of one is the posspssion of both. 1 Hojf. E. 21. And so, where an intestate was seized and possessed of lands which were unoccupied, and which descended to tenants in common in that condition, it was held that one of them, though not in possession, may apply for partition. 4 Kern. 235. So, it is provided by statute, that any heir, claiming lands, tenements, or hereditaments, by descent from an ancestor, who died holding and being in possession of the same (whether the heir is in possession or not), may prosecute for the partition thereof, notwithstanding any apparent devise by such ancestor, or any possession held under the same devise, provided that the heir shall allege and establish in the same action that such apparent devise is void. Laws of 1853, j9. 526, § 2. Where the party instituting the proceeding is not in the possession of the premises, and there are infant defendants, the court is bound to notice the objection, whether it is taken or not, 11 LIow. 489 ; though such disal)ility ought regularly to be pleaded, 19 Wend. 367 ; 3 Paige, 245 ; unless it distinctly ap- pears by the complaint itself. 2 Barh. Ch. E. 398. If, however, there has been an omission to plead it, it may be taken advantage of at the trial, under the plea of non tenant insimul. 19 Wend. 367. Nor will proceedings for partition be authorized where the defendant is in possession claiming adversely to the plaintiff. Harp. Eq. E. 106 ; 2 Barh. Ch. E. 398 ; 11 L. 0. 116. Nor in favor of a party who has merely a future contingent interest in an undivided share of the premises. 2 Paige, 387. Nor in favor of a widow having only a right of dower in the premises, 1 Sand. Ch. E. 199; and see 15 Johns E. "19; nor against her where she is the sole defendant in the proceedings. Id. ibid. Nor where the title is denied, or is not clearly established, or CH. XX.] PARTITION. 97 depends on doubtful facts or questions of law. 1 Johns. Oh. R. Ill ; 1 Ed. Oh. R. 266; 5 Barh. 52; 4 Rand. 493. But where the title is not in dispute, partition is matter of right, 4 Barb'. 229; 10 Paiye, 470; 17 JS'ew York, 213; though where it ap- peared, on the trial, that the action had been commenced during the pendency of an action brought by the defendant in another court for a dissolution of partnersliip and an accounting, which involved the premises in question, it was held that the complaint should be dismissed, l-i: Ahi. 206. Aad so, where lands are devised subject to the performance of a condition subsequent, and the devisee enters and suffers a breach of the conditior-, the party entitled to an undivided part of the premises in conse.|Ueiice of the breach of the condition, as tenant in common with the devisee, cannot apply for partition against the devisee. 5 Len'w. 385. In such case, he mus: &st establish ■ his title by action. Ih. ; 4 Paige, 639; but see post. And so, if there has been an actual ouster of the plaintiff by his cotenant, or if the land is held adversely, the party must regain the actual seizin by action before proceedings for partition can be sustained. 8 Paige, 245; 9 Ommn, 530; 11 L. 0. 116. A party, however, may go into a court of equity upon an equitable title. And although the fact that the defendant is in possession of premises, claiming to hold them adversely, is in general a sufficient ground for denying a partition, yet where the question arises upon an equitable title set up by either of the parties, the court will not suspend the proceedings without doing complete justice between the parties. See 5 Barb. 52; 4 Johns. Oh. R. 271 ; 1 Uoff. R. 21. On the same principle, it has been said, there is no objection, now that the distinction between actions is abolished, and the court has general jurisdiction of both law and equity, to the trial and decision of any litigated question of title, whether equitable or legal, in a suit for parti- tion. 2 Van Sant. Eq. Pr. 5 ; and see Oode of Pro. § 69 ; 12 Abb. 414, s. c. 23 New YorTc, 357 ; 17 Id. 270 ; 3 Kern. 493. Thus, it has also been expressly provided by statute, that a party claiming the premises by descent as heir, in hostility to a devise of the same, may contest the validity of such devise in an action brought for the partition of the premises. Laws of 1853, ^. 526, supra. Where lands leased for a term of years, are owned by several TOL. II.— 7 98 PARTITION. CH. XX. persons as tenants in common both of the rents and the reversion, proceedings for partition may be sustained ; and if a sale of the premises is ordered, it must be made subject to the right of the lessees, who, by the sale, will become the tenants to the pur- chaser of the rents and reversion. 5 Paige, 518. But where a lessee of land becomes a purchaser of an undivided moiety of the rent and reversion, the lease and rent thereby become merged and extinguished as to that portion of the premises; and the lessee is not such a tenant of the rent and reversion with the owner of the other half thereof, as to entitle the latter to a par- tition of the land during the continuance of the lease. 4 Id. 639. Proceedings for partition may also be instituted by parties who are seized of a life estate, in real estate, by virtue of an assignment to them, by one of the tenants in common in trust for the beneiit of his creditors. 2 Ba7-h. S. O. R. 599. So a tenant by the curtesy initiate, may maintain the proceeding. 4 Edw. Oh. R. 668 ; 26 Hov}. 250. So, it was held the action would lie where the grantee's deed conveyed to him, his heirs and assigns forever, all the mines, ores, minerals, and metals, in or upon certain lands described therein, together with the right to raise, work and carry away the same ; and the right to put up all buildings, and to use all lands that might be necessary for the purpose specified; and the right of ingress and egress thereto, and therefrom, for the purpose of digging, and working and car- rying away said mines, ores, minerals, and metals. 28 Barb. 336 ; 16 How. 473. And so, an action for the partition of real estate among the devisees or heirs at law of a testator or intestate, may be com- menced within the three years allowed by law to the creditors to apply to the surrogate for an order of sale. 7 Paige, 550 ; 7 How. 307 ', 10 Id. 189 ; 1 Barh. 8. G. ^. 76 ; 3 AU. 249 ; 5 Id. 53 ; 7 Id. 473, 478 ; but see 1 Edw. Ch. R. 565, 568, 570. And a purchaser under the judgment will be compelled to take the title if there are no debts against the estate, or the personal prop- erty is sufficient to pay all claims against the estate of the de- ceased ; though otherwise if there are debts, and the personal property is not sufficient to pay them. Id. ibid. Where several tracts or parcels of land lying within this State are owned by the same persons in common, no separate proceed- ings for a partition of a part thereof only, can be brought without CH. XX.] PAETITION. 99 the consent of all the parties interested therein ; and if brought without such consent, the share of the plaintiff may be charged with the whole costs of the proceedings. Sup. Court Rules, No. 77 ; Eq. Rules, 1847, No. 122. Provisions of the Code.] It is provided by § 448 of the Code of Procedure, that the provisions of the Eevised Statutes relating to the partition of lands, tenements, and hereditaments, held or possessed by joint tenants or tenants in common, shall apply to actions for such partition, brought under the Code, so far as the same can be so applied to the substance and subject-matter of the action, without regard to its form. The proper construction applicable to the above section (§ 448), is stated by Hoffman, J., substantially thus : The Code is to regulate the course of proceedings in the action for partition generally, as well as in any other. But those provisions of the statute which are peculiar to the action of partition, and as to which there is no corresponding provision in the Code, must pre- vail. And again, provisions of the statute which are in addition to, and consistent with, any provision of the Code upon a particu- lar subject-matter, are likewise to govern. 2 Ahh. 13 ; and see 3 Bosw. 410. Accordingly, the provisions of the Eevised Statutes (2 Rev. Stat. 317, sees. 2, 3, and 4, post) with respect to the appointment of the guardian, ad litem, of infants, and the security to be given, apply to actions for partition, brought under the Code of Proce- dure, 2 AU. 6, 11 ; 2 t)uer, 636 ; 3 Bosw. 410 ; though they are inapplicable so far as they relate to the parties to apply for a guardian, and the time and mode of applying. 2 Abb. 15, per Hoffman, J., ; and see 11 Id. 440, 455 ; 20 How. 222 ; s. g. 11 AU. 473 ; 25 How. 266. The Code (§ 116), will regulate the form of applying, and the parties to apply. Id. ibid. / and see post, " Guardian ad litem for infants." And so, the service of the summons in an action for partition, is made the same as in other actions, 2 Abb. 15 ; 2 Duer, 635 ; and if the plaintiff is obliged to make '' unknown owners" de- fendants, he is entitled to proceed against them by publication of the summons under § 135 of the Code. 11 How. 277. And so, in actions for partition, the system of pleading pre- scribed by the Code is to be observed ; though with respect to 100 PARTITIOlSr. [CH. XX. the complaint, it should no doubt contain the same matters n • quired by the statute, to be stated in the petition. These are in addition to, or in compliance with, the requisitions of § 142 of the Code. 8 JIow. 458 ; 2 Ahb. 14, 15. And so, where the defendants in an action for partition omit to answer the complaint, the plaintiff must exhibit proof of his title, &c., on a reference for that purpose, the same as where the proceedings are commenced by petition under the revised stat- utes. 8 Row. 456 ; 6 Id. 491 ; 2 Abb. 15, su^pra. What courts have jurisdiction of the action.] The action may be brought in the Supreme Court ; which court, succeeding to the equitable powers of the Court of Chanceiy, has general jurisdiction of the action ; and every intendment will be made in support of a judgment rendered therein, unless the contrary appear on the face of the record, or be affirmatively shown aliunde. Hill & Denio, 438 ; 15 New York, 6lT. And so, the action may be brought in the county court of the county where the premises are situated. Code, § 30 ; 16 New York, 80 ; and in the Superior Court of the city of New York, the Court of Common Pleas of the city and county of New York, and the mayor's courts, and recorder's courts of cities, where the premises are situated within those cities respectively. lb. §§ 33, 123. And those courts have such jurisdiction without reference to the residence of the parties. 2 Duer, 635 ; and see 13 How. 254 -,8.0.4: Duer, 682 ; 4 Abb. 43. So, the action may be brought in the Superior Court of the city of Buffalo, Laws of 1854, p. 222, § 9 ; 1857, vol. 1, p. 752 ; and in the City Court of Brooklyn, Laws oflMQ,p. 170 ; 21 Barb. 225 ; where the premises are situated within the limits of those cities respectively. The application for leave to institute proceedings on behalf of infants, can be made only to the Supreme Court, {a) Laws of 1852, p. 411 ; 13 How. 106, 107. Whether the proceedings for the partition in such case, must also be brought in that court, is not clear by the statute ; though the safer course undoubtedly (o) In the city of Brooklyn, howeyer, in respect to property situated within the limits thereof, the application may also be made to the City Court of that city. Laws «/lS63, p. 89. CH. XX.J PARTITION. would be to institute the proceedings in that court in all eases where there are infant plaintiffs. M. ibid ; and see 2 Abh. 14. How proceedings commenced.'] The usual, if not the only mode, of commencing proceedings for the partition of real estate, is by summons, or summons and complaint, imder the Code of Procedure, Code, §§ 127 to 130, 448; though the proceeding could formerly be commenced, and may still be commenced, as is believed, by petition under the Kevised Statutes. The proceed- ing by action, however, is the best and safest mode of procedure, and is more convenient than the proceeding by petition — besides furnishing a perfectly uniform course of practice in all cases similar, in every respect, to the former practice in the Court of Chancery, (a) 2 Van Sant. Eq. Pr. 2, 3. (a) It is declared by Mr. Justice Pratt, in Groghan v. Livingston, in the Court of Appeals (6 Abb. 350, 355, «. u. 17 New York, 218, 224), that the provisions of the Re- vised Statutes in relation to the partition of real estate, by petition, are abolished. What is there stated, however, upon that subject, was not necessary to the decision of the case : nor, as I am informed, was the question passed upon by the court, or discussed by the counsel who argued it. Yet upon the authority of tliat dictum, it has been held, by at least one general term of the Supreme Court, that the remedy for the partition of real estate by petition under the Revised Statutes, is abolished. 14 Abb. 258, s. c. 37 Barb. 22 ; 23 Sow. 358. The learned j ustice bases his conclusions principally upon the changes made in the Code of Procedure, by the amendments of 1849. By § 390 of the Code of 1848, the Code was not to affect the proceedings provided for by titles 2, 3, 4, 5, 6, and 8, of chap. 5, part 3, of tlie Revised Statutes. Title 3, alluded to, relates to proceedings in partition. In the Code of 1 849 that title was omitted ; also titles 2, 4, and 5. By the Code of 1849, also, the provisions of the Revised Statutes, relating to the par- tition of lands, &c., were made to apply to actions for partition brought under the Code of Procedure, so far as the same could be so applied to the substance and subject- matter of the action, withont regard to its form. Code, § 448. And though the Code of 1848, also clearly authorized proceedings by action for partition (§§ 103, 388, 390), yet the question whether it did in fact authorize such proceedings seemed to be left in doubt by the case of Traver v. Traver (3 Sbio. 351, 354; and see Id. 290, per Hand, J.; Id. 318; 4 Id. 83, 84; Id. 133). Besides, while it was important that the provisions of the Revised Statutes, relating to proceedings in partition, should be applied to an action for partition brought under the Code, yet the Code of 1848 con- tained no section in terms making those provisions applicable to such action. Hence the amendments to the Code of 1849 ; which were no doubt deemed necessary by the legislature, to put at rest the question whether an action for partition was proper under the Code; and for the purpose, also, of making the provisions of the Revised Statutes applicable to such action. By the amendments of 1849, also, as we have seen, titles 2, 4, and 5, above mentioned, were also omitted from the Code. Title 2 provides for the determination 102 PARTITION, [CH. XX. The remedy by action, therefore, will be the only one consid- ered in this work. The action is commenced by the service of a summons, or a summons and complaint, as in ordinary actions. Code, §§ 127 to 139, 448. ■ For forms, see Aj)pendix, Nos. 470 to 473. In the case of a defendant against whom no personal claim is made, the plaintiff may deliver to such defendant, '\fith the sum- mons, a notice subscribed by the plaintiff or his attorney, setting forth the general object of the action, a brief description of the premises of which partition is sought, and that no personal claim is made against the defendant ; in which case no copy of the com- plaint need be served on the defendant, unless within the time for of claims to real estate; title 4 relates to the writ of nuisance; and title 5 to the action of waste. And the amendments of 1849, in respect to tliose titles, authorized an action for the proceedings under the Revised Statutes, and in express terms abolished the action of waste and the writ of nuisance. Oode, §§ 4-50, 45 1, 453, 454. But in respect to proceedings for partition, although it authorized an action to be prosecuted for the partition of real estate, and made the provisions of the Revised Statutes applicable to such action, yet it nowhere in terms abolished the proceeding by petition. And as the two proceedings are not inconsistent with each other, the inference is, that the remedy may be talcen by action under the Code, or by petition under the Revised Statutes, in like manner as it could formerly be done by bill or petition in the Court of Chancery. See 2 Bev. Stat. 329, sec. 19; 3 Sow. 351 ; 4 Id. 83; Id. 133, per Barculo, J.; Id. 125. But it is said that title 3, above mentioned, was not "reserved" by section 471 of the Code of 1849 ; and, therefore, that it is abolished, unless expressly saved by other provisions of the Code. It is submitted, however, that no such construction can be given to that section. That section, except in respect to statutory provisions inconsistent with the Code, and therefore repealed by § 468, had no effect, either to reserve or to abolish the several proceedings mentioned in it. But its sole object had reference to the application of the Code to them, and to prevent that application, except as therein mentioned ; and though it recognized the existence of those pro- ceedings, it did so for that purpose only. And as the proceeding for the partition of real estate by petition is a special statutory remedy, not inconsistent with the Code, the omission to include the title relating to that proceeding among the titles enumerated in § 471 can have no effect upon the question whether that remedy is abolished or not. It is beUeved, for the reasons above stated, that title 3 remains unrepealed, aod that proceedings for partition may be taken by petition under its provisions, as well as by action under the Code of Procedure. And that such has been the understanding of the profession, wiU be seen by reference to the following authori- ties: 3 Bow. 351, 354; 4 Id. 83; Id. 1.33; Id. 125; 25 Barb. 336; 16 New York, 82, 83; 2 Whit. Pr. id ed. 330 to 333; 2 Mon. Pr. 254; Buip. Court Rules, Sbs. 77* 7r! And see, as evidence of the intention of the legislature to retain the proceeding by petition. Laws of 1852, p. 411 ; Laws o/ 1857, vol. 2. p. 504 ; Pm5. Acts, 184. CH. XX.] PARTITION. 103 answering lie shall, in writing, demand the same. Code, § 131. For form of notice, see Appendix, No. dYl. If the defendant on whom the notice is served, unreasonably defend the action, he will be required to pay costs to the plaintiff. Code, § 131 ; and see 9 Paige, 230. Parties to the action.] The party applying for the partition, as we have seen, must have an estate in the premises as a joint tenant or a tenant in common, and must be in the possession of his imdivided share or interest. '^ Rev. Stat. 317, sec. 1, supra. The party must also be of full age; though on application to the Supreme Court, {a) and showing sufficient reasons therefor, au- thority will be given to commence the proceedings in behalf of an infant ; in which case the proceedings must be conducted in the name of such infant by a competent next friend, to be ap- pointed by the court for that purpose. Laws of 1852, p. 411, post ; and see 13 Huw. 105 ; 21 Id. 479, s. o. 14 All. 299 ; 26 Ro\o. 250. Several joint tenants, or tenants in common, may unife as parties plaintiffs, but it is usual and more convenient to com- mence tlie action in the name of one of them alone, making the others defendants. A tenant in common of part of the premises, is not debarred from bringing an action for partition individually, merely because he is a trustee as to another part. 1 Edw. Ch. H. 629. If a lessee of land becomes a purchaser of an undivided moiety of the rent and reversion, the lease and rent are merged and ex- tinguished as to that portion of the premises ; and he is not such a tenant in common of the rent and reversion, with the owner of the other half thereof, as to entitle the latter to a partition of the land during the continuance of the lease. 4 Paige, 639. So, if the owner of an undivided moiety of land is a lessee of the other half thereof, and the lease has become forfeited by the non-per- formance of a condition subsequent, the landlord must enter for the forfeiture, or must otherwise obtain the possession of his indi- vidual half of the premises, before he can sustain an action for partition. II. (a) In the city of Brooklyn, where the premises are situated therein, the applica- tion may also be made to the City Court of that city. Laws of 1863, p. 89. 104 PABTITION. [CH. XX. If the proceedings are commenced by a wife for the partition of premises owned by her, separately from her husband, it would be improper to join the husband as a party plaintiif, 8 How. 389 ; though in such case, it seems, it would be proper to make him a defendant in the proceedings. See /5. 393 ; Laws of 1862, p. 343 ; 1860,^. 15Y. Where, however, the suit is instituted by a party whose wife has an inchoate right of dower in the premises sought to be par- titioned, the wife in such case, whether an infant or an adult, is a proper and necessary party ; and should be joined with her husband as plaintiif in the proceedings. 8 How. 456 ; and see 7 Paige, 387. And so, in proceedings for the partition of the real estate of a lunatic, or of an habitual drunkard, it would be irregular for the committee of such person to institute the proceedings in their name alone ; but such lunatic, or habitual drunkard, is a necessary party tO the proceedings, and should be. joined with the committee as plaintiif therein. 3 Barb. Ch. R. 25. •Where the proceedings for partition are commenced by the assignees of a tenant for life, who had assigned the premises for the benefit of his creditors, the legal estate is in the assignees, and the creditors are not necessary parties to the proceedings. 2 Barb. S. C. B. 599 ; and see 8 Paige, 513. But where an undi- vided portion of the premises has been conveyed to trustees, upon a trust not authorized by law, the cestui que trust is a necessary party to the proceedings, to make the judgment binding upon his interest in the premises. lb. With respect to parties defendants, it may be stated, generally, that all persons should be made parties to the proceedings, who have any interest whatever in the premises of which partition is sought, or any part thereof. The statute provides, that every person interested in the prem- ises, whether in possession or otherwise, including those having an interest therein as tenant for years, for life, by the curtesy, or in dower, and the persons entitled to the reversion, remainder, or inheritance after the termination of any particular estate therein, and every person who, by any contingency contained in any devise, grant, or otherwise, may be or become entitled to any beneficial interest in the premises, and every person entitled to dower in the premise i f the same has not been admeasured, may be made CH. XX.'] PABTITIOIT. 105 parties to the proceedings. 2 Sev. Stat. 318, sec. 6 ; Fb. sec. 6, sub. 2 ; 2 Paige, 38Y; 1 Barb. S: O. R. 500 ; 7 Id. 221. But in an action between tenants in common, for the partition of an interest in real estate, which has been carved out of the fee, the owner of the fee, being the common source of title to all the tenants in common, is not a necessary party. 28 Barb. 336. In respect to making persons entitled to dower parties, the statute authorizes every such person to be made a party to the action, if the dower has not been admeasured. 2 Rev. Stat. 318, sec. 6. It was held in Tanner v. Mies (1 Barb. S. O. R. 560, 564 ; and see 1 b. 500), that where the dower interest is in an undivided share of the premises, the person having such interest was a proper party to the action ; but that it was not necessary, though generally advisable, to make such person a party, who was entitled to dower which had not been admeasured, and which extended to the whole of the premises of which partition is sought ; and that the statute did not, in any case, contemplate an admeasure- ment of a dower interest, in the proceedings for the partition of the premises. But since the decision in that case, an act has been passed which seems to contemplate an admeasurement of the widow's dower in the premises of which partition is sought, whether the dower extends to the whole or to only a part of the premises in question. Laws of 1847, p. 557, sec. 5, post. In view of that act, therefore, and other statutory provisions on the subject, it would undoubtedly be the proper course, in all cases, to make the persons entitled to dower in the premises, parties to the pro- ceedings, whether the dower extends to the whole of the prem- ises, or only to an undivided portion thereof ; and even if the same has been admeasured, if a sale of the premises is. contem- plated. 2 Rev. Stat. 318, sees. 5, 6; lb. 322, sec. 35; lb. 325, sees. 60, 51 ; 15 New York, 625 ; 3 Paige, 653 ; 7 Id. 410. And so, a married woman, having only an inchoate right of dower in the undivided portion of her husband, may be made a party defendant in the action. 7 Paige, 386. And if a womai* marry one of the parties after the action is commenced, she need not be brought in as a party, unless for the precaution of render- ing a purchaser's title more secure ; and if so brought in, the proper practice under the old system, was, to enter a simple order that the further proceedings be in the name of herself and 106 PARTITION. [CH. XX. her husband, and not by amendment or Bupplemental bill ; and the same practice would probably be held proper now. 2 Van Sant. Pr. 13, citing 7 Paige, 386 ; 2 Barb. Ch. Pr. 289. If a married woman has a separate estate as tenant in com- mon with others, she may be made a party defendant alone, without her husband. Laws of 1860, p. 157 ; 1862, p. 343. And if the action is brought by a married woman having a separate estate, her husband should be made a party defendant, if he has any interest to be affected by the action ; otherwise not. II.; 14 How. 456; 31 Bari. 314. Heversioners and remaindermen are proper parties, and neces- sary in order to bind their interests by the judgment. Thus, a reversioner is a necessary party where the action is brought by a person who is owner of an undivided share of the revei'sion, as well as of an undivided share of the present interest in the prop- erty. 2 Paige, 387. And he is also a necessary party where the action is brought by the owner of an undivided share of the premises for life, or of any other particular estate in the same, and some of the other parties own the residue of the premises in fee. Ih. Where an undivided portion of the premises, of which parti- tion is sought, has been conveyed to a trustee upon a trust not authorized by the Revised Statutes, the cestui que trust is a neces- sary party to the action, to make the judgment binding upon his interest in the premises. 8 Paige, 513. If, however, the abso- lute title to such portion is vested in a trustee upon a valid trust, it seems it is not necessary to make the cestui que trust a party, but that it is sufficient to bring before the court the trus- tee who has the whole legal estate. 75. If persons are interested in the premises who are unknown, they may be made parties to the action generally, without stat- ing their names, by adding to the title of the summons and com- plaint, " and all persons or owners unknown, having or claiming any interest in tlie pi'emises sought to be partitioned in this ac- tion." 2 Eev. St' It. 319, necs. 12, 35 ; Laws of 1842, p. 363 ; 2 Yarb Sant. Pr. 7. And in such case, the service of the summons upon them may be made by publication of the same under § 135 of the Code. 11 How. 277. The future contingent intereit of persons not in e-^se, such as contingent remaindermen, or persons to take under an eizceutory CH. XX.] PARTITION. 107 devise, wlio may hereafter come into being, are bound by a judg- ment in partition, they being considered as virtually represented by the parties to the action in whom the present estate is vested. VI New York, 210, affirming 5 Ahh. 92. The effect of not making all the persons interested parties to the action, will be to prevent the plaintiff, at the hearing, from obtaining judgment of partition. 2 Barb. Ch. B. 398. But where all the parties are adults, and have been personally served with process, the court will not examine the proceedings to ascer- tain whether all the proper parties are before the court, 8 Paige, 513 ; though it is otherwise if the persons are proceeded against as absentees, or as unknown owners of undivided portions of the premises, or where the rights of infants are concerned. If the parties are adults, and the other necessary parties are not brought in, the defendants who have been served with process should appear, and make the objection. II. ; and see 27 How. 289. If any person interested in the premises, or having any claim by which he may become interested at any future time, has not been made a party to the proceedings, he may, notwithstanding, be admitted to appear and answer as a defendant, on application to the court, or to a judge thereof in vacation, upon his petition accompanied by an affidavit of his interest. 2 Rev. Stat. 319, sec. 15. In respect to creditors., having liens upon the premises or any part thereof, by judgment, decree, mortgage or otherwise, it had been decided previous to the Eevised Statutes, that such persons were not proper parties to an action ; and that their rights could not be affected by a sale of the lands. 1 Paige, 469 ; 7 Johns. Ch. R. 140 ; Hopk. 501. But the rule has been changed either by the statute or the practice of the court ; (a) and the court is (a) The statute authorizes creditors having specific liens hy mortgage, devise, or otherwise, to be- made parties to the action, in the discretion of the plaintiif, 2 Beo Stat. 318, sec. 10 ; and if a sale of the premises is to be had, they are necessary parties, 11. sec. 42 ; though if they are not made parties, their liens will not he affected by the sale or conveyance. Laws of 1830, ch. 320, § 45. In respect, however, to creditors having geueral liens, by judgment or otherwise, there is no provision of the statute in express terms requiring or authorizing them to be made parties to the action. The statute, indeed, does not seem to contemplate that they shall be made parties, since in case the premises are sold, they may be barred without it. Laws of 1k30, sujpra; and whether sold or partitioned, their rights seem fully guarded and protjutod. 2 Eeo. Stat. 318, sees. 8, 9, 42 to 49; Laws of 1830, ch. 320, § 45. 108 PARTITIOIir. [CH. XX. now authorized to make them parties to the action, and to decree a sale which will give the purchaser a perfect title, discharged from all liens and incumbrances. 1 Paige, 470 ; 7 How. 307 ; 2 Barb. Oh. Pr. 288 ; 2 Van Sant. Eq. Pr. 14 ; Sup. Court Rules, No. 79. It is not necessary, however, in the first instance to make such creditors parties to the proceedings. 2 Rev. Stat. 318, seo. 8, as altered by amendatory act of 1830, ch. 320, sec. 40. Though the plaintiff may, at his election, make every creditor a party to the proceedings who has a specific lien upon the undivided inter- est or estate of any of the parties, by mortgage, devise, or other- wise. Ih. sec. 41. And this is the course usually adopted in practice, as it saves the necessity of amending the complaint in case the premises are to be sold. 2 Rev. Stat. 324, sec. 42 ; 2 Barl. Ch. Pr. 288. And not only are the creditors having spe- cific liens upon the premises, or on any undivided share thereof, usually made parties if a sale is to be made, but those, also, having general liens by judgment or otherwise. Id. ibid.; and 7 How. 307 ; 1 Paige, 470, and see Sup. Court Rules, No. 79 ; 2 Van Sant. Eq. Pr. 14 ; and ante, p. 107, note. The effect of omitting to make incumbrancers parties to the action will be that the partition of the premises will not alter, impair, or affect their lien ; except that if the lien is on the undi- vided interest or estate of any of the parties, such lien, if partition is made of the premises, will thereafter be a charge only on the share assigned to such party ; and such share will be charged with its just proportion of the costs of the proceedings foE parti- tion, in preference to the lien. 2 Rev. Stat. 318, sees. 8, 9. The court will allow an amendment of the pleadings or pro- ceedings, so as to make defendant thereto, any person who shall have appeared, in the course of the proceedings, to be interested in the premises, by any will, deed, or grant from any person who is a defendant in such partition, and who might originally have been made defendant, if his interest had then existed or been known. 2 Rev. Stat. 320, sec. 20. And in respect to amendments generally, and bringing in new parties, the provisions of the Code apply, the same as in ordinary actions. Code, §§ 169 to 177, 448. Notice of lis pendens.] The party instituting the proceed- ings, on filing the complaintj or at any time afterwards, may file CH. XX.] PARTITION. 109 with the clerk of each county in which the property is situated, a notice of the pendency of the action, containing the object thereof, the names of the parties, and the description of the prop- erty in that county affected thereby. Code, § 132 ; and see Eq^. Rules, 184-T, No. 121. For form, see Ap_pendix, No. 4T4. From the time of filing the notice only, will the pendency of the action be constructive notice to a purchaser or incum- brancer of the property affected thereby. Code, § 132. And every person whose conveyance or incumbrance is sub- sequently executed or subsequently recorded, will be deemed a subsequent purchaser or incumbrancer, and will be bound by all proceedings taken, after jthe filing of such notice to the same extent as if he were made a party to the action. 1 h. For the purposes of § 132, an action is deemed to be pending from the time of the filing of the notice ; provided, however, that the notice will be of no avail, imless it shall be followed by the first publication of the summons on an order therefor, or by the personal service thereof on a defendant within sixty days after such filing. Ih. And the court in which the action was commenced may, in its discretion, at any time after the action is settled, discontinued or abated, as is provided in section 121, on good cause shown, and on application of any person aggrieved, and on such notice as shall be directed or approved by the court, order the notice of Us pendens to be cancelled of record by the clerk of any county in whose office the same may have been filed or recorded. Ih., as amended Laws of 1866, ch. 824. Such cancellation shall be made by an endorsement to that effect on the margin of the record, which shall refer to the order, and for which the clerk shall be entitled to a fee of twenty-five cents. li. See farther on the subject of this notice, ante, vol. l,p. 285. Guardian ad litem for irfants.] If the proceedings are instituted by an infant plaintiff, under the authority of the Supreme Court, a competent next friend or guardian must be ap- pointed by the court to conduct the proceedings ; which next friend or guardian is to be appointed upon the like application, and in the like manner, and must give the same security, and will possess the same powers, as are specified and required in 110 PARTITION. [CH. XX sections two, three, and four, of title 3 of chapter 5 of the third part of the Revised Statutes (2 Rev. Stat. 317), Laws of 1852, p. 411, § 2 ; and see 6 All. Pr. 350, s. c. lY New York, 218 ; 26 How. 250 ; 21 Id. 479, s. c. 14 All. 299. Those statutes provide, that if it shall be represented to the court by any party intending to make application for partition, that there are any minors who should be parties to the proceed- ings thereon, and it shall be satisfactorily proved to the court that at least ten days' notice has been served on such minors as shall reside within this State, or upon their general guardians, of an intention to apply to the court for the order therein men- tioned, such court shall thereupon appoint a spitable and disin- terested person to be guardian for one or more of such minors, whether the said minors shall reside in or out of this State, for the special purpose of taking charge of the interests of such min- ors in relation to the proceeding for partition. 2 Rev. Stat. 317, sec. 2. The statute also prescribes the powers of the. guardian, and the security to be given by him on his appointment. II. sees. 3 and 4. These are the same as in cases of guardians for infant defendants; in respect to which see post. The appointment of a next friend or guardian for an infant plaintiff, must be made by the Supreme Court, (a) Laws of 1852,^. 411. "Where it was made by a county judge, the pro- ceedings were declared void for that reason, and were set aside on motion. 13 How. 105. Nor can it be made by a judge at chambers ; but must be made by the court ; though in the first judicial district, the order appointing a guardian, when made by a judge at chambers, operates as an order of the court. 5 Abl. 53. It is indispensable that the next friend appointed to institute the action in behalf of infants should give security as required by the statute. 26 How. 250 ; 21 Id. 479 ; *. c. 14 All. 299. If there are infant defendants., a guardian ad litem must be appointed for them. And the provisions of the Revised Statutes are to regulate the appointment and the security to be given by the guardian, 2 All. 611; 2 Duer, 6;i5 ; 8 Bosw. 410 ; except (a) If the premises, however, are situated in the city of Brooklyn, the appoint- ment may also be made by the city court of that city. Laws of 1863, p. 89. CH. XX.J PAETITION. Ill in regard to the mere form of applying, and tte parties to ap- ply. («) 2 Abb. 15 ; and see 2 Buer, 635 ; 11 Abb. 440, 455 ; Id. 4Y3 ; s. c. 20 Row. 222 ; 25 /^. 266. (a) There is some confusion in the authorities on the subject of the proper prac- tice on the appointment of a guardian ad litem, for an infant defendant in an action for partition. The Revised Statutes, in respect to tlie mode of applying for the appointment of a guardian and the parties to apply, provides, that if it shall be represented to the court by any party intending to make application for a partition or sale of real estate, ■ that there are any minors who should be parties to the proceedmgs thereon, and it shall be satisfactorily proved to the court, that at least ten days' notice has been served on such minors as reside within this State, or upon their general guardians, of an intention to apply to such court for the order therein mentioned, such court shall thereupon appoint a suitable and disinterested person to be guardian for one or more of such minors, whether the said minors shall reside in or out of this State, for the special purpose of taking charge of the interests of such minors in relation to the proceedings for a partition. 2 Rev. Stat. 317, sec. 2. In Jennings v. Jennings (2 Abi. 13), Judge HofiFman, in giving a construction to § 448 of the Code, stated substantially, that those provisions of the Revised Statutes which are peculiar to the action of partition, and as to which there were no corresponding provisions in the Code, must prevail. And also, that those provis- ions of the statute, which are in addition to, and consistent with the Code, must also govern. He accordingly held, that the Revised Statutes were applicable in respect to the appointment of the guardian, and the security to be given ; though inapplica- ble so far as related to the time and mode of applying for the appointment, and the parties to apply. This construction has been followed in several cases, since decided. Thus, in Towsey v. Harrison (25 Bow. 266), decided at General Term in the seventh district, it was held that a guardian ad litem for an infant defendant, in an action for partition brought in the Supreme Court, could be appointed by a county judge. This wa - unliko the practice under the Revised Statutes, as we have seen, which required the appointment to be made by the court ; and by the court, too, in which the action was to be brought. The propriety of proceeding under the Code of Procedure, in respect to the mode of appointing the guardian ad litem, is also recognized by Hogeboom, J., in Van WycJc V. ITardy, 20 Sow. 222, 229, s. c. 11 Abb. 473 ; and again in Rogers v. McLean, 11 Abb. rr. R 440, 455; and by Ingraham, J., in Van Wyck v. Hardy, 20 How. Pr. 225, supra. In conflict with the above, are the cases of Disbrow v. Folger (5 Abb. 53) ; Lyle v. Smith (13 How. 104); Varian v. Stevens (2 Duer, 635), and AUhouse v. Radde (3 Bosto. 410); but an examination of those cases will show that tliey were decided upon other.grounds, as well as that relating to the application of the Revised Statutes to the practice on the appointment of the guardian, or that what was said was the mere dicta of the court, having, in fact, no relation to the question before it. Thus, in Disbrow v. Folger (5 Abb. 53), where the guardian had been appointed by a Supreme Court judge, at chambers, in the city of New York ; the question was upon the regularity of the appointment, the guardian, as it was said, not having been appointed by the couit. The justice deciding the case, assuming that the 112 PARTITION. [CH. XX. By the Code of Procedure (§ 115), the guardian may be ap- pointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge. And the guardian is appointed upon the application of the infant, if he is fourteen years of age, and applies within twenty- days after the service of the summons. But if he is under the age of fourteen years, or neglects so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of the application has been first given to the general or testamentary guardian of the infant, if he has one within this State ; if he has none, then to the infant himself, if over fourteen years of age, and within the State, or, if under that age, and within the State, to the person with whom the infant resides. Code^ § 116. And where an infant defendant resides out of this State, or is temporarily absent therefrom, the plaintiff may apply to the court in which the action is pending, at any special term thereof, and will be entitled to an order designating some suitable person to be the guardian for the infant defendant for the purposes of the action, unless the infant defendant or some one in his behalf, within a number of days after the service of a copy of the order, which number of days shall be in the said order specified, shall procure to be appointed a guardian for the said infant, and the court shall give special directions in the order for the manner of the service thereof, which may be upon the infant. Gode^ % 116, as amended 1865. appointment must have been made by the court, held, nevertheless, that it was regular, because, in that city, the order of a judge at chambers operated as an order of the court. So, in Ijyle v. Smith (13 How. 104), the question related to the practice upon the appointment of a guardian for an infant plaintiff, under the act of 1852 ; arid what was there said on the subject of infant defendants was not intended to be said, or, at least, was entirely outside of the question before the court. In Varian V. Stevens (2 Duer, 635), what was there said on the subject in question was not necessary to the decision of the case. Besides, it was inconsistent with what was subsequently held in the same opinion (p. 638), that the infant might himself apply, under § 116 of the Code, for the appointment of a guardian. And in Althouse v. Eadde (3 Bosw. 410), the case was in fact decided upon grounds not relating to the question under consideration. The practice, therefore, may be stated to be settled, upon the weight of authority, ^ that in the appointment of a guardian for an infant defendant, in an action for partition, the provisions of the Revised Statutes are to apply, except so far as they relate to the time, place, and mode of applying, and the parties to apply ; and that in respect to the last-mentioned matters, the Code of Procedure is to apply. CH. XX.] PAKTITION. 113 And in case an infant defendant having an interest in the event of the action shall reside in any State with which there shall not be a regular communication by mail, on such fact satis- factorily appearing to the court, the court may appoint a guardian ad litem tor such absent infant party, for the purpose of protect- ing the right of such infant in said action ; and on such guard- ian ad litem, process, pleadings, and notices in the action may be served in the like manner as upon a party residing in this State. lb. Where a guardian ad litem has been appointed in an action for partition, upon the petition of an infant over the age of fourteen years, the order is valid, although no summons had previously been served upon the infant. 2 Duer, 635. Aud the jurisdiction of the court, therefore, is complete, when the guardian so appointed puts in an answer on behalf of the infant. II). ; and see 3 Bo^w. 410; 11 AU. 465. Every person appointed guardian is required, before entering upon the execution of his duties, to execute a bond, in such penalty, and with such surety, as the court shall direct, to the people of this State, conditioned for the faithful discharge of the trust committed to such guardian, and to render a just and trxie account of his guardianship, in all coTu-ts and places, when there- unto required ; and before any rule to plead, or any other sub- sequent rule or order, shall be made, the court is required to be satisfied that such bond has been executed and filed in the office of the clerk. 2 Rev. Stat. 317, sec. 4; 2 Ahb. 6 ; 2 Dusr, 635 ; 3 Bosw. 410 ; 26 How. 250 ; 21 Id. 479 ; «. c. 14 AU. 299. When, however, any of the joint tenants or tenants in common, who are defendants, are minors, for whom no suitable or disinter- ested person shall voluntarily signify his consent in writing to be appointed guardian, and offer to give the security required by the statute, it is the duty of the court, on the petition of the party instituting the proceedings, to appoint the clerk of the court guardian for such minors for the purposes of the partition, and to dispense with the security required by the statute. Laws of 1833, p. 311 ; 2 Duer, 637. But a copy of the petition, with a notice in writing specifying the time and place when and where the same will be presented, must be served at least ten days before the presentation thereof, upon the general guardian of such minors, in case there be such guardian, or upon the minor, if there be none ; Vol. II.— 8 114 PAETITION. [CH. XX.' proof of which service must be duly made to the court. Laws of 1833, jD. 311. The court may also appoint the clerk guardian ad litem of au infant defendant who is an absentee, and without security. 7 Paige, 596 ; and see Code of Pro. § 116, stipra. But no other person can be appDinted guardian in such case without giving security. 7 PaAge, 596. The bond must be signed by the guardian himself; and if executed by sureties in his behalf, in which he does not join, it is not a compliance Avith the statute. 2 Ahh. 6. For form, see Appendix, No. 479. Whenever it appears, in any action for the partition of lands, instituted in any court authorized to decree partition or sale thereof, that any such guardian has entered upon the execution of his duties, and rules or orders have been made, without the tiling of the bond above required, or that such bond cannot be found on file, such court, or any judge thereof, may, on applica- tion of any party to the suit or proceeding, at any time before judgment or decree, in all cases, or after judgment or decree, in cases of actual partition, authorize and direct the filing of a bond by such guardian, and the penalty and surety thereof to be filed as of the same date with the order appointing the guar- dian ; which bond, when so filed, and all proceedings in the suit subsequent to the date of the order appointing the guardian, shall have the Kke force and effect, in every respect, as if such bond had been directed by the court, and duly executed and filed by the guardian, at the date of his appointment. Laws of 1852, 'p. 411, sec. 3 ; 6 Ahh. 350 ; s. c. 17 New York, 218. And, in an action for partition, where the guardian, at the time of his appointment, omitted to file the bond, as required by the statute, but, after judgment and sale, an order was made giving him leave to file a bond nunc pro tunc, which was done, it was held proper, and that it was a mere irregularity, of which the court, on application, would allow an amendment. 25 Barl. 336, aff. 6 Ahh. 350; s. c. 17 New York, 218 ; and see 7 Ahh. 473. The guardians thus appointed, who give the bond required by the statute, will represent their respective minors in the proceedings ; and their acts in relation thereto will be binding on such minors, and be as valid as if done by such minors after CH. XX.] PARTITION-. 115 arriving at full age. 2 Reo. Stat. 317, see. 3, 3 Bosw. 410, 430. It is unnecessary for the guardian to put in any answer, or to appear in the action, where the only object in doing so is to submit the rights of the infants to the protection of the court. 4 Bo^. 410, 435. For further on the subject of the appointment of a guardian ad litem for an infant defendant, see ante, Chapter xiii. of this work. T?ie summons and notice.] The form of the summons is prescribed by the Code of Procedure. The summons must be subscribed by the plaintifl" or his attorney, and directed to the defendant, and shall require him to answer the complaint, and to serve a copy of his answer on the person whose name is sub- scribed to the summons, at a place within the State, to be therein specified, in which there is a post-ofiice, within twenty days after the service of the summons, exclusive of the day of service. Oode, § 128 ; and the summons must contain a notice, also, to the effect that, if the defendant fail to answer the complaint within twenty days after service of the summons, the plaintiff will apply to the court for the relief demanded in the complaint. lb. § 129. The summons, if served without the complaint, must state where the complaint is, or will be, filed, — that is, the county where it is designed to have the place of trial — which must be the county in which the premises are situated. li. §§. 123, 130. In other respects, the summons, also, is the same as in ordi- nary actions, where the plaintiff is to api>ly to the court for the relief demanded in the complaint. Code, §§ 128, 129, 139 ; and see ante, vol. 1, p. 281. In respect to the notice to accompany the summons, it is provided by the Code, that in the case of a defendant against whom no personal claim is made, the plaintiff' may deliver to the defendant, with the summons, a notice subscribed by the plain- tiff or his attorney, setting forth the general object of the action, a brief description of the premises of which partition is sought, and that no personal claim is made against the defendant, in which case no copy of the complaint need be served on the de- fendant, unless within the time for answering, he shall, in writing, 116 PARTITION. [CH. XX. demand the same. And if the defendant on whom the notice is served, unreasonably defend the action, he will be required to pay costs to the plaintiff. Gode^ § 131 ; and see 9 Paige, and ante, vol. l,p. 273. For form of notice, see Appendix, ISTo. 471. The complai7it.'] In actions for partition, the system of plead- ing prescribed by the Code is to be observed ; though, in respect to the complaint, it should, no doubt, contain the same matters re- quired to be stated in the petition for partition under the Revised Statutes. These are in addition to, or in compliance with, the requisitions of § 142 of the Code. 8 Hcno. 458; 2 AU. 14, 15 ; Code, % 448. It is necessary, therefore, by the statute, that the complaint sliould contain the following matters : It must particularly de- scribe the premises sought to be divided or sold ; and must set forth the rights and titles of all persons interested therein, so far as the same are known to the petitioner, including the interest of any tenant for years, for life, by the curtesy, or in dower, and the persons entitled to the reversion, remainder, or inheritance, after the termination of any particular estate therein, and every person who, by any contingency contained in any devise, grant, or otherwise, may be or become entitled to any beneficial interest in the premises. 2 Rev. Stat. 318, sec. 5 ; 6 Paige, 492. When infants are interested in the premises, the complaint must also state whether or not the parties own any other lands in common. S^ip. Court Pules, No. 77; Equity Pules, 1847, IS'o. 122. And where any one or more of the parties to the proceedings, or the share or quantity of interest of §uch parties, is unknown to the plaintiffs, or is uncertain or contingent, or the ownership of the inheritance depends upon an executory devise, or the re- mainder is a contingent remainder, so that the parties cannot be named, the same must be set forth in the complaint. 2 Pev. Stat. 318, sec. 7. Where the plaintiff shall make creditors having specific liens upon the undivided interests or estates of any of the parties, by mortgage, devise, or otherwise, parties to the proceedings, the c^implaint must set forth the nature of every such lien or incum- brance. 2 Pev. Stat. 318, as amended. Act of 1830, oh. 320, § 41. If the complaint alleges that the parties are seized in com- mon, it is not necessary also to allege that the plaintiff is in CH. XX.J PARTITION. 117 possession of tlie premises, as that fact will be presumed from the former allegation. See 3 Paige, 242. If the plaintiff is not in possession, this may be set up as a defence to the action. 11. The complaint may state, in general terms, that each tenant ■was seized of his part or share in fee, or as the case may be, with- out setting forth how the seizin was acquired. 8 Johns. 558. But if the rights of the defendants, as between themselves, depend upon the validity of a will, or the ownership of the premises is contingent or doubtful, and depends upon the construction of such will, it is proper for the plaintiff to state the fact of the making of the will, and the substance thereof, so far as is neces- sary to enable the court to understand the rights of the parties. 6 Paige, 492. In respect to the allegation, as to unknown owners required by statute, while the complaint must allege the fact that there are such, yet the averment that there are certain unknown owners, without setting forth their exact interest in the premises, is sufficient to authorize the subsequent proceedings as to them. 23 Barb. 285, 303. Where the complaint alleged, in addition to what was neces- sary to obtain a partition, that one of the defendants claimed a lien on the premises, and prayed an account of such lien ; it was held not to contain an improper joinder of causes of action. 7 HovJ, 305. So, the plaintiff, whether in the possession of the premises or not, where he claims the lands by descent from an ancestor who died in the possession of the same, may allege in his complaint that the defendant is in possession, or claims the possession of the premises, imder an apparent devise of the same, which is void. Laws (jflSo3,j). 526. The future contingent interests of persons not m esse are barred by an actual partition or sale under a judgment in parti- tion. And the complaint, therefore, need not contain allega- tions in regard to the interest of contingent remaindermen who may hereafter come into being, they being virtually represented by the parties to the action in whom the present estate is vested 17 JVew York, 210 ; affirming 5 Abh. 92. The allegations in the complaint may be upon information and belief, as in other actions. And the complaint may be verified or not (according to the form prescribed by the Code), 118 PARTITION. [CH. XX at the option of the plaintiff. Code, § 448 ; 2 All. 14, 15. For forms of complaint, see Appendix, If os. 472, 473. Service of summons on the defendant.] The service of the snminons on the defendants is made in all respects the same as in ordinary actions, 2 Aih. 15 ; 2 Duer, 635; as to which see §§ 133 to 139 of the Code of Procedure, and ante, vol. l,p. 381.. So, if the plaintiff is obliged to make " unknown owners " parties defendants, he may proceed against them by publication, under § 135 of the Code. 11 How. 277. J 11 case a defendant is an infant, and resides in a State with wliich there is not a regular communication by mail, and a guardian ad litem is appointed for the infant, for the purpose of protecting his rights in the action, the summons may be served upon such guardian. Oode, § 116, as amended 1863. And where the defendant is a resident of this State, but can- not be found, or avoids service of the summons, the court or judge may order the same to be served by leaving a copy at his residence, or affixing the same on the outer door thereof, and mailing the same through the post office, &c. Laws of 1853, -p. 974; 1863,^. 388. Proceedings if defendant does not appear, or' answer.] If the defendant do not answer or demur to the plaintiff's complaint within the time limited for that purpose, the plaintiff may apply to the court for the relief demanded in the complaint. And where all the parties are of age, and have been person- ally served with the summons, the plaintiff will be entitled to judgment of partition, as of course, upon proving title to the premises as required by the statute. 2 Bev. Stat. 321, sec. 22 ; 8 II(fw. 456. This proof may be made in open court ; or a refer- ence may be ordered to take proof of the title and report upon the same with an abstract of the conveyances by which it is held. 2 Paige, 27 ; 2 Rev. Stat. 321, sec. 2'2i ; Laws of 1847, p. 344, § 77 ; 2 Abb. 16. The proof of title is such as would be required to be made to enable a plaintiff to recover in ejectment. 2 Paige, 27 ; 3 Wend. 436 ; and the title should be traced back to a common source. 7 Paige, 39. In those cases, however, where the parties are of age, and have been personally served, the court will not ex- amine the proceedings to ascertain whether all the proper parties CH. XX.] PAETITIOK. 119 are before the court, or whether the referee, if a reference has been ordered, has stated the rights and interests of the parties cori-ectly in his report. 8 Id. 513 ; and see 27 How. 289. If the necessary parties are not before the court, so as to make the judgment final and effectual as to all persons interested in the premises, the defendants who are served should appear and make that objection. Id. Hid. On the application for judgment in such cases, however, in addition to the usual proof of personal service upon all the defendants, and that no answer or demurrer has been received, the plaintiff should produce an afiidavit show- ing that none of the defendants are infants, or absentees, or unknown. 2 Yan Sant. Pr. 28. For forms of affidavit, see Appendix, Nos. 480 to 483. Where any of the defendants are infants, or absentees, or where there are unknown owners, a reference is usually ordered by the court, on the application of the plaintiff. The practice in respect to such reference, is regulated by the Rules of the Su- preme Court, which proi^ide as follows: "Where the rights and interests of the several parties as stated in the complaint, are not denied or controverted, if any of the defendants are infants or absentees, or unknown, the plaintiff, on an affidavit of the fact and notice to such of the parties as have appeared, may apply at a special term for an order of reference to take proof of the plaintiff's title and interest in the premises and of the several matters set forth in the complaint ; and to ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances by which the same are held. Hule No. 78. And where the whole premises of which partition is sbught, are so circumstanced that a partition thereof cannot be made without great prejudice to the owners, due regard being had to the power of the court to decree compensation to be made for equality of partition, and to the ability of the respective parties to pay a reasonable compensation to produce such equality, or where any lot or separate parcel of the premises, which will exceed in value the share to which either of the tenants in com- mon may be entitled, is so circumstanced, the plaintiff, upon stating the fact in the affidavit, which is to be filed for the pur- pose of obtaining an order of reference under the preceding rule (No. 78.), may have a further provision inserted in such order of 120 PARTITION. [CH. XX. reference, directing the officer or person to wliom it is referred, to inquire and report whether the whole premises, or any lot, or separate parcel thereof, are so circumstanced that an actual par- tition cannot be made ; and that if he arrives at the conclusion that the sale of the whole premises, or of any lot, or separate parcel thereof, will be necessary, that he specify the same in his report, together with the reasons which render a sale necessary ; and, in such a case, that he also ascertain and report whether any creditor, not a party to the suit, has a specific lien, by mortgage, devise, or otherwise, upon the imdivided share or interest of any of the parties, in that portion of the premises which it is neces- sary to sell ; and if he finds that there is no such specific lien in fsCvor of any person not a party to the suit, tha!t he further inquire and report whether the undivided share or interest of any of the parties in the premises is subject to a general lien or incumbrance, by judgment or decree; and that he ascertain and report the amount due to any party to the suit who has either a general or specific lien on the premises to be sold, or any part thereof, and the amount due to any creditor, not a party, who has a general lien on any undivided share, or interest therein, by judgment or decree, and who shall appear and establish his claim on such reference. He shall also, if requested by the parties who appear before him on such reference, ascertain and report the amount due to any creditor, not a party to the suit, which is either a spe- cific or general lien or incumbrance upon all the shares or inter- ests of the parties in the premises to be sold, and which would, remain as an incumbrance thereon, in the hands of the purchaser; to the end that such direction may be given in relation to the same, in the decree for the sale of the premises, as shall be most beneficial to all the parties interested in the proceeds thereof, on such sale. Rule No. Y9. The proceedings before the referee are governed by the ordinary rules applicable to references in other equity actions. The referee should require the plaintifiFto produce the abstracts of his title, as a tenant in common in the premises, and to trace it back to the common source of title of the several tenants in common ; and in his report, the referee should, as far as practica- ble, give an abstract of the conveyances of the several undivided shares or interests of the parties in the premises from the time they were united in one common source. See 7 Paige, 39 and CH. XX.] PARTITION. 121 8 How. 456 ; 6 Id. 491. Proof of the plaintiff's title must be exhibited to the referee, Id. Hid. ; and this proof must be such, as, in an action of ejectment, would establish a prima facie right in a plaintiff to recover the premises claimed by him. 3 Wend. 436 ; and see 2 Paige, 27. But the practice does not require the referee in his report of title to annex to his report a search for mortgages or conveyances, affecting the title. It is sufficient if the report states the fact explicitly that he had caused the necessary searches to be made, and certifies what incumbrances, &c., there are. 2Y How. 289. Where the parties are proceeded against as unknown owners of undivided portions, or as absentees, or the rights of infants are involved, the court will look into the pi-oceedings to see that all proper persons are made parties, 8 Paige, 513; though other- wise if all the parties are adults and have been personally served with the summons. Ih. ; and see 2Y How. 289. If the referee is directed to inquire as to the propriety of a sale of the premises, the true question to be considered by him in determining whether such sale is necessary, is whether the aggregate value of the several parcels into which the whole premises must be divided, will, when distributed amoftg the dif- ferent parties in severalty, be materially less than the value of the same property, if owned by one person. 6 Paige, 541, 547. The referees' report, with proof of the due service of the summons upon the parties interested, and if the summons has been served by publication, proof of such publication, must be submitted to the court on the application for judgment, and filed with the clerk. See 2 Rev. Stat. 321, see. 22. And where there are infant parties, the application must also be accompanied by the certificate of the clerk, or other proof, showing that the bond required to be given by the guardian ad litem, has been duly executed, and filed in the office of the clerk of the court. Ih. 317, sec. 4. Who may defend?^ Any person having any interest in the premises, or having any claim by which he may become inter- ested at any future time, in reversion, remainder, or by any executory devise, contingency, or otherwise, and whether such interest be present and vested, or contingent, and whether su'ch parties or their interest be known or unknown, may, within the 122 PARTITION. [CH. XS. time prescribed by law, or within such further time as the court may allow for the purpose, appear and answer to the plaintiff's complaint. 2 Rev. Stat. 319, sec. 15; Code, § 448. And if sach person be not named as a party to the action he may be admitted to appear and answer the same, as a defendant, by the court, or by any judge thereof in vacation, upon his petition accompanied by an affidavit of his interest. Id. ibid. Answer of the defendant.'] The answer of the defendant in an action for partition, is regulated by the Code of Procedure, the same in all respects as an answer in an ordinary action. Code, §§ 149, 448. It is not necessary or proper for a defendant to put in a gen- eral answer merely admitting the matters alleged in the com- plaint without at the same time setting up new matter consti- tuting a defence. And the plaintiff, instead of treating such an answer as properly put in, may give notice of a motion at special term, to strike it out as irrelevant, accompanied with a notice of application for judgment at the same time. Jh. § 247; 2 Van Sant. Pr. 24. And even in the case of an infant defendant for whom a guardian ad litem has been appointed, it is unnecessary for him to put in an answer to the complaint where the facts alleged in the complaint are true, and the answer is put in simply for the purpose of submitting his rights to the protection of the court, in the manner prescribed by the former equity practice li. y and 3 Bosw. 410, 430, 436. Any party appearing, may answer either separately or jointly, with one or more of his co-defendants, that the plaintiff, or any of them, at the time of the commencement of the action, were not in possession of the premises in question, or any part thereof; {a) or that the defendants or any of them, did not hold the premises together with the plaintiffs, at the time of the commencement of the action, as alleged in the complaint ; and he may set forth any special matter to sustain such answer, and may give evidence (a) It is not necessary, however, for the plaintifif to be in possession of*premises claimed by him as heir, by descent, from an ancestor who died in possession, where he seeks in the same action, to invalidate an apparent devise of such premises, by the ancestor, in favor of the defendants or those under whom they claim. Laws of 1853, p. 526, § 2, ante, p. 96. CH. XX.] PARTITION. 128 thereof on the trial. 2 Bev. Stat. 320, sec. 16 ; Code, § 448 ; 15 Wend. 340 ; 19 Id. 367. And the defendant is not confined in his answer to the two defenses authorized to be pleaded by the above section ; but he may allege anything that will abate the action, or bar the plain- tiff's right to a judgment ; and to the same extent as in other actions. 4 How. 125 ; s. c. 2 Code R., 69. Where the party instituting the action is not in possession of the premises, the disability should regularly be pleaded by the defendant, 19 Wend. 367 ; 3 Paige, 242 ; unless it distinctly appears by the complaint itself. 2 Barh. ■ Ch. R. 398. But if there has been an omission to plead it, it may be taken advantage of at the trial under the plea of non tenant insimul. 19 Wend. 367, supra. The plaintiff's possession of the premises will be presumed from an allegation in the complaint, that the parties are seized as tenants in common. And if the plaintiff has been ousted, or there is an adverse holding, the defendant must allege it in his answer, if he wishes to put the question of possession in issue. 3 Faiffe, 245, 246. Other and further pleadings may also be had between the parties respectively, according to the practice of the court, as in personal actions imder the Code, until an issue or issues in law, or in fact, are joined between the parties, or some of them. 2 Rev. Stat. 320, sec. 17 ; Code, § 448. The issues, and trial thereof.'] The issues in the action, whether of law or fact, are to be tried by the court, in the same manner as issues in other equity actions. Or the court may award an issue to be tried by a jury ; in which case the issues must be settled in conformity to Kule 33 of the Siipreme Court. And whenever the joint tenancy, or tenancy in common, of any defendant shall be denied by a co-defendant, and it shall become necessary to determine the same, in order to effect a com- plete and final partition, so far as the rights of the parties are concerned, the court may direct an issue to be formed on the record, and may direct the jury to inquire into, try, and deter- mine, as well the tenancy of the defendant so denied, as the other issues joined on such pleadings. 2 Rev. Stat. 320, sec. 18. And the court may set aside verdicts and grant new trials therein ; l-i PARTITION. [CH. XX. and it may, either before or after the trial of such issue, permit the proceedings to be amended, so as to represent truly tlie rights claimed by any party. li. sec. 19. Wliere there are issues as to one or more, and failure to answer as to the rest of the defendants, the trial of the issue may be brought on in the usual manner, and at the same time, on notice to the defendants who appear, but do not answer; and the proof requisite in case of a default as to them, may be presented to the court, so that the decision of the court upon the issues being rendered, if in favor of the plaintiff, one general order may be made determining such issues, and directing the proper reference as to all the defendants. 2 Van Sant. Eq. Pr. 26. And if there are issues of fact as to some of the dtfendauts, to be tried by a jury, these must be disposed of first before further steps can be taken against those making default. On the coming in of the verdict, if favorable to the plaintiff, a motion may be made, on notice to those 'Who have appeared, for the relief demanded in the complaint, against all the defen'dants, as well those embraced in the issue tried, as the other defendants who make default. And the proceedings will then be precisely the same as on a simple application for judgment on defa-.ilt. lb. 27. The place of trial of the action is in the count;/ where the premises, or some part thereof, is situated. Code., § 123 ; Laws 0/1847,^7. 332, §45. Amendments. '\ The statute provides that either before or after the trial of any issue, the court may permit the complaint and all subsequent proceedings to be amended so as to represent truly the rights claimed by any party. 2 Ren. Hint. 320, .se-;. 19. And the court may also allow any amendment of the pleadings or proceedings, so as to make defendant thereto, any person who shall have appeared, in the course of the proceedings, to be inte- rested in the premises, by any will, deed, or grant from any per- son who is a defendant in such partition, and who might origin- ally have been made defendant, if his interest had then existed or been knovra. It. sec. 20. After any such amendment, any party whose rights are affected thereby, and who has not had an opportunity to sus- tain liis claim, will be entitled to have an issue made up and tried, to determine such right; and the court may, after an CH. XX.] PAETITION. 125 amendment in any other case, where it may be deemed proper, order a trial to be had. Ih. m\ 21. And where the guardian ad litem of an infant jjas omitted to file the bond required by the statute, he may be allowed to do so nunc pro tunc, even after judgment and sale of the premises, 25 Bail). 33C, aff. 6 All. 350 ; 17 New York, 218 ; 7 All. 473 ; and so of other like matters. 11 Id. 440. In addition to the above provisions of the Eevised Statutes, the one hundred and seventy -third section of the Code of Proce- dure has been made applicable to these proceedings, by special act of the legislature, {a) Laws of 1857, vol. 2, p. 504 ; Pul. Actfs. p. 184. That section authorizes the court either before or after, judgment, in furtherance of justice, and on such terms as may be proper, to amend any pleading process or proceeding, bv adding or striking out the name of any party ; or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case ; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. See § 173, in Voorhiefi' Code and notes ; and see 25 Barl. 336, aff. 6 Abb. 350 ; «. o. 17 New York, 218. In respect, also, to amendments generally, see the other sec- tions of the Code of Procedure (§§ 169 to 177), which apply to actions for partition, {a) Code, § 448. Abatement of the action, and effect thereof. 1 If one of tiie defendants, a tenant in common of the premises, dies pending the action, the same must be revived against his heirs. And a sale after his death, anTi after the bill has been taken as confessed against him, without revivor, is void as against his heirs. 16 Ntw York, 193 ; 26 Id. 338. The heirs, in such a case, are not required to avoid the decree for sale by motion in the original suit, or by writ of error or appeal, but may impeach its validity in an action of ejectment for the land of their ancestor. II. So, if one of the tenants in common dies after the appointment (a ) This act was unnecessary, so far as related to actions for partition, for the rea- son that all the provisions of the Code {§§ 169 to 17T), in reference to amendments, already applied to such actions. Code, § 448; 2 Abb. 6; Q Id. 350, s. c. IT Nsu Yrk, 218 ; 11 Abb. 440. 126 PABTITION. [CH. XX of commissioners to make the partition, the commissioners cannot proceed with the partition, or make a report that a sale is neces- sary until the suit is revived, and the rights of the new parties are ascertained. 5 Paige, Ifil. And in such case, a new refer- ence must be had to ascertain the rights of the new parties. 75. But where the plaintiflP died, while the premises were being advertised for sale, and his share passed to his three children, two of whom were defendants in the original action, and the third was made plaintiif, by order of the court, as successor in interest to his ancestor ; it was held, that there was no irregularity iu continuing the advertisement in the same form as originally com- menced, and sellipg the premises in pursuance thereof. 18 How. 458, s. c. 9 Ahl. 323. Receiver pending the litigation.] In order to preserve the property from serious loss, the court may appoint a receiver pending the action ; as, where a portion of the premises cannot be rented in consequence of the refusal of one of the defendants, a tenant in common with the plaintiff, to unite with the latter ; or where the rents cannot be collected by reason of the defendants' interference. 28 How. 9. It is also provided by statute, that where, either by actions or proceedings in partition or division, or for the construction of a last will and testament, an estate has been brought within the possession, direction, or control of the Supreme Court of the State, which shall have acquired jurisdiction over the same, such Supreme Court may, upon the death of the surviving executor of said will and testament, and during the pendency of the action or proceedings, and until they are finally carried into effect, appoint a receiver of said estate upon such terms and conditions, and upon such notice to all parties and persons in- terested, as said court shall direct, and upon such order as to security or otherwise as to said Supreme Court may seem ex- pedient ; and to enable it to carry into effect its orders and decrees in relation to said estate, the receiver, when appointed, shall be the successor in interest of the surviving executor, and shall have like power and authority as administrators with the will annexed, appointed by the surrogate, but subject to the orders of the Supreme Court in the premises. Laws ofl8G3,j}. 804. CH. XX.] PARTITION. 127 I. Proceedings if Actuai, Pabtition is Decreed. Judgm.ent declaring rights of parties, c&c] The court is required by the statute to ascertain, from the proofs taken upon the reference in case of default ; or from the confession, by plea, of the parties if they appeared ; or from the verdict of the jury by which any issue of fact shall have been tried ; and to declare, the rights, titles, and interests of the parties to such proceedings, plaintiffs as well as defendants, so far as the same shall have ap- peared ; and to determine the rights of the parties in such lands, tenements, or hereditaments, and give judgment that partition be made, between such of them as shall have any right therein, according to such rights. 2 Rev. Stat. 321, sec. 23 ; 23 Sari. 286, 302. And where one trv nt in common lays out money in im- provements on the estate, although the money so expended does not in strictness constitute a lien upon the estate, yet a court of equity will not grant a partition without first directing an ac- count and a suitable compensation ; or else, in the partition it will assign to such tenant in common that part of the premises on which the improvements have been made. 1 Barh. 8. O. li. 605, per Paige, J. ; and see 3 Paige, 546 ; 3 Sand. Ch. B. 64. And see as to other cases of equitable partition, 3 Paige, 200 ; n. 470. If the defendants sign a cognovit, acknowledging the correct- ness of the allegations contained in the complaint, and consenting that partition may be made of the premises therein described, the judgment for partition is founded upon the confession, and is limited by it ; and the court has no authority to go beyond it. 21 Barh. 9. The court is not restricted to a i^artition of all the lands, or a sale of the whole. And, therefore, where the interests of the parties require it, part of the lands held in common may be divided, and part of them sold. See 2 Pev. Stat. 323, sec. 37 ; 11. 330, sec. 81 ; 4 Barh. 228 ; 9 Id. 500. And so, when a portion of the premises may, without prejudice to the interests of any of the parties, be allotted to one of the parties, but the shares of the other parties cannot be allotted to them without prejudice to their interests, the court may allot to the former party his 128 PAETITIOK. . [CH. XX. share in the premises, and direct a sale of the interests of the other parties in the residue which cannot be so divided. 4 Barb. 228, supra. Where the proceedings are instituted in behalf of infants, a partition of the premises will not be directed by the court, unless it is made satisfactorily to appear that the interests of such infants require it. See Laxos of 1852, p. 411, sec. 2 ; 26 How. 250. It is unnecessary to docket the judgment where actual par- tition is decreed. The rights of the parties are fixed and settled by the final decree, and not by the enrolment thereof. And, therefore, in an action of ejectment by a party claiming title under the decree, in a partition puit, the decree is evidence to show title in the plaintiff, although it was not signed and docketed until after the commencement of the ejectment suit. 42 Barl. 591. Partition in part ; setting off shares or proceeds temporarily, cfcc] The statute provides, that if, after trial of the issues, or after judgment by default, confession, or otherwise, against those parties who are known, the part or interest of any parties who shall not have pleaded in the cause, whether known or unknown, in and to such premises, shall not have appeared by the evidence in the cause, the court shall give judgment that partition be made, so far as the rights or interests of the parties who are known, and who have appeared in the cause, have been ascer- tained; and the residue of the premises shall remain for the parties whose interests have not been ascertained, subject to division between them at any future time. 2 Rev. Stat. 321, sec. 24. And an actual partition or sale, as the case may require, may be adjudged or decreed, whenever and as often as the court shall have ascertained and declared so many facts concerning the rights, titles, and interests of all or any of the parties to such suit, that a fair and just partition or distribution of the proceeds can be made by assigning to any party or parties, in severalty, and to any set or sets of parties, in common, according to the provisions of this or the next section {sec. 2,post\ the shares in the premises belonging to such parties and sets of parties respect- ively, or of the proceeds of the sales of the said shares of such CH. XX] PARTITION. 129 parties and sets of parties respectively. Laws of li^l , p. 556, sec. 1. And whenever a partition or sale shall be so adjudged or decreed, costs may be awarded as shall seem just, and the court may take order to discharge from the suit any party or parties whose interest therein shall liave wholly ceased, and for the custody of any lands or shares of proceeds as to which the rights, titles, and interests of the parties shall not have been fully ascertained and declared, and for such further proceedings as may be requisite, until the full ascertainment and declaration of the rights, titles, and interests of all the parties. Ih. And whenever it shall seem proper to the court that a parti- tion or sale should be adjudged, as provided in the preceding section, shares of the premises or proceeds, as to which there are conflicting claims not aifecting other shares in the premises or proceeds, may temporarily, and until the determination of such claims upon further proceedings had between the adverse claimants be assigned or set oif as in common to such adverse claimants, with a proper reservation of the questions of right between such claimants. Ih. sec 2. Whenever it shall appear on such further proceedings as are mentioned in the last two preceding sections, that any amend ment of the pleadings or proceedings is necessary in respect to any share in controversy, such amendment may be introduced by suggestion to be filed ; saving to all parties in interest, the like right to answer such suggestion as iu the case of an amend- ment of the complaint. Ih. sec. 3 ; Code, § 448 ; 2 Ahh. 17. Shares may he set off to parties in common.'] If it appears to the court that two or more persons interested in the premises, are desirous of enjoying their several shares or interests in common with each other, the court niay direct a partition to be made in such manner as to set off to such of the parties as shall desire it, their shares respectively of such premises, and shall permit the respective shares or interests of those who shall desire it to remain without partition or allotment, to be enjoyed by them in common. Laws 0/18^7. p. 656, § 4; and see 2 Wend. 443. And for that purpose, where there is no issue formed by the pleadings to prevent it, the court will order a reference to ascer- VoL. II.— 9 130 PAETITIOX. [CII. XX. tain and report whether the shares of any of the parties can be ..jt off to them in common. 8 How. 351. Such reference should be had before the final judgment in partition is entered. Ih. Commissionerfi to le a2)j)ointed.] When judgment of partition shall be rendered, the court is required to appoint, by rule, three reputable freeholders, commissioners to make the partition ad- judged, according to the respective rights and interests of the parties, as the same were ascertained and determined by such court ; and in such rule the court shall designate the part or share which shall remain undivided, for the owners whose interests shall be unknown and not ascertained. 2 Hev. Stat. 321, sec 25. For form, see Ajtpendix, H'o. 493. The commissioners are named by the party, to the court, and if approved, are appointed, according to the nomination. 1 Cai. R. Vl\, 122; 4 Barb. 228, 232. If the persons appointed commissioners, or any of them, shall die, resign, or neglect to serve, the court may, from time to time, appoint others in their places. 2 Rev. Stat. 321, sec. 26. Oath of comTuisdoners.] The commissioners, before proceed- ing to the execution of their duties, shall severally be sworn or afSrmed, before any ofScer authorized to take affidavits, honestly and impartially to execute the trust reposed in them, and to make partition as directed by the court ; which oath shall be tiled with the clerk of the court, at or before the coming in of the report of such commissioners. 2 Rev. Stat. 321, sec. 27. For form, see Appendix, No. 510. Proceedings of the commissioner s.^ The commissioners are required to proceed forthwith to make partition, according to the judgment of the court, unless it shall appear to them, or any two of them, that partition cannot be made without great prejudice to the owners thereof; in which case they shall make a return of such fact to the court, in writing, under their hands. 2 Rev. Stat. 322, sec. 28. Notice of the proceedings should be given to the parties in- terested. 9 Hovx 71. The statute does not in terms require such notice, yet the necessity of it is implied; for partition is one of those adjudications of a judicial nature affecting the rights CH. XX.] PARTITION. 131 and interests of the parties, in which they have a right to sub- stantial and beneficial notice ; and without it the report of the commissioners will be set aside. li. ; but see 4 How. 133. In making partition, the commissioners are required to divide the real estate, and allot the several portions and shares thereof to the respective parties, quality and quantity relatively con- sidered by them, according to the respective rights and interests of the parties so adjudged by the court, designating the several shares and portions by posts, stones, or other permanent monu- ments; and they may employ a surveyor, with the necessary assistants, to aid them therein. 2 Jiev. Stat. 322, sec. 29. But if the court directs that the shares of two or more of the parties shall be set off to them in common, the order of the court, in this respect, must be followed by the commissioners ; and the partition, in such case, must be made in such manner as to set off to such parties their shares or interests in common, dividing the remainder of the premises between the parties according to their respective rights in the same. See Laws of 18i7,p. 536, sec. 4, supra; 2 Wend. 443; 8 Row. 351. The commissioners, in making partition, may assign a portion of the premises, held in common, to one of the parties, charged with a servitude or easement, for the benefit of another party, to whom a distinct portion of the premises is assigned in severalty. 10 Faige, 470. And so, where the premises in question consist of a mill-dam and mill-pond, creating the water-power which supplies the mills held in severalty by the tenants in common of such mill and mill- pond, the commissioners may divide the mill-dam, and the lands under the same, and under the waters of the pond, and may make such provisions for keeping the different portions of the dam, and of the water-gates and flumes in repair, and siich regulations for the use of the water-power, which is not capable of actual par- tition without a destruction of its value, as the parties themselves might make by a partition deed of the same property. Ji. ; and see 14 Wend. 204; 5 N. Hamp. R. 134, If the commissioners do not partition the tract described in the complaint, but extend their action to land consisting partly of a portion of such tract and partly of other property, their pro- ceedings would be without jurisdiction, and the judgment entered upon their report would be void. 21 Barh. 9. 132 PAKTITIOHr. [CH. XX. Where infants represent a share of the property, their separate proportions of it should be severed and set out to them respect- , ively. And it is not enough merely to set aside for them, col- lectively, the share of their ancestor. 3 Edw. Oh. R. 229. All the commissioners must meet together in the performance of any of their duties ; but the acts of a majority, so met, will be valid. 2 Rev. Stat. 322, sec. 81. Compensation for equality of partition.] The statute pro- vides that whenever partition shall be decreed by a court of equity, («) if it shall appear that it cannot be made equal be- ■ tween the parties, without prejudice to the rights and interests of some of them, the court may decree compensation to be made by one party to the other, for equality of partition, according to the equity of the case. 2 Rev. Stat. 330, sec. 83 ; 2 Paige, 27 ; 4 Barb. 229 ; Will. Eq. Jur. YOO, 705. Partition of interest of tenants for life.] Whenever the estate of any tenant in dower, or by the curtesy, or for life, to the whole or any part or share of the premises in question, has been admitted by the parties, or ascertained hy the court to be existing at the time that judgment shall be given that partition be made, and the person entitled to such estate has been made a party to the proceedings, it shall be lawful for the commissioners to allot to such tenant his share thereof, without reference to the duration of such estate ; and, also, to make partition of such share, and allot the same to the parties respectively who shall be entitled to the remainder thereof, according to their respective rights therein, whenever in the opinion of the commissioners, it can be done without prejudice to the rights of the parties. Laws cf 184:7, p. 556, sec. 5 ; 15 JVew YorTc, 623, 627. Formerly, in the proceedings for partition, an admeasurement of a dower interest in tlie premises could not be made, 1 Barb. S. a R. 561 ; lb. 500 ; 3 Sand. S. 0. R. 391 ; 15 Johns. 319 ; but the statute above cited undoubtedly contemplates an admeasure- ment of the widow's dower, where she has been made a party to (a) In actions for the partition of real estate, all the courts having jurisdiction of such actions, may direct compensation to be made for equaUty of partition. Code of Pro. §§ 8, 30, 33, 123, 448. CH. XX.] PARTITION. 133 the proceedings, whether the dower extends to the whole or to only a part of the premises in question. See ante^ p. 105. Fees and expenses of commissioners, surveyors, c&c] The expenses of the commissioners, including the expenses of a surveyor and his assistants, when they shall be employed, will be ascertained and allowed by the court ; and the amount thereof, together with the fees allowed by law to the commissioners, must be paid by the plaintiffs, and will be allowed to them as part of the costs to be taxed. 2 Bev. Stat. 322, sec. 32. The fees allowed by law to commissioners are two dollars to each for every day's actual and necessary service. Id. 643, sec. 35. And the surveyor, if one is employed, is allowed for actual service in surveying, laying out, marking and mapping the prem- ises of which partition is made, two dollars and fifty cents per day ; and for each of his necessary chain and flag bearers, and other necessary assistants, one dollar per day. li. sec. 34. The commissioners must look to the plaintiff for their fees, and not to the plaintiff's attorney ; and, it seems, the attorney is not liable to the commissioners, though the fees have been col- lected by him. At any rate, he cannot be attached for not pay- ing them. 4^0M?. 245.' Commissioners'' report.^ The commissioners are required to make a full and ample report of their proceedings, under the hands of any two of them, specifying therein the manner of executing their trust, and describing the land divided, and the shares alloted to each party, with the quantity, courses, and dis- tances of each share, and a description of the posts, stones, or other monuments thereof, and the items of their charges. 2 Sev. Stat. 322, sec. 30. For form, see Appendix, No. 511. The report should be signed by all the commissioners ; if not, it should state . the reason of the omission. And where a sufii- cient reason is given for its not being signed by all, it should also state that ^11 the commissioners met together and consulted upon the matter of the partition. 1 Bar}). Ch. Ji. 13; 2 Mill, 625. The report must also be proved or acknowledged before some officer authorized to take the proof of deeds, in the same mannef that deeds are required to be proved or acknowledged to entitle 134 PABTITION. [CH. XX. them to be recorded (1 Rev. Stat. 756, see. 4) ; and must be filed in the office of the clerk of the court. 2 Rev. Stat. 322, sec. 33. Setting aside report.'] On good cause shown, the court may set aside the report, and appoint new commissioners as often as may be necessary, who will proceed in like manner as above directed. 2 Rev. Stat. 322, sec. 34. But, it seems, the report will be disturbed or interfered with by the court, only upon grounds similar to those upon which a verdict would be set aside and a new trial granted. 9 How. 71 ; 4 Ed. Ch. R. 896. Tiie affidavits of four credible and dis- interested persons for, to three against, setting aside such report, does not carry such a weight of evidence as to authorize the court to interfere to disturb the report. 9 How. 71, supra. Where one of the parties opposed the confirmation of the report upon the ground that he was not notified of the meeting of the commissioners, and did not attend, it was held that the proceed- ings were irregular for that reason, and the report was set aside. n. Judgment on t'eport.] The .party instituting the proceedings should move the court for the confirmation of the report of the commissioners, and that final judgment be rendered upon it. Notice of the motion should be served upon the parties inter- ested, who have appeared in the proceedings, accompanied with copies of the papers on which the motion is founded. UiDon the report of the commissioners being confirmed by the court, judgment will thereupon be given, that such partition be firm and eflFectual forever. 2 Rev. Stat. 322, sec. 35. Effect of judgment of partition.] The statute declares the judgment rendered upon the confirmation of the report of the commissioners, to be binding and conclusive : 1. On all parties named therein, and their legal representa- tives, who shall, at the time, have any interest in the premises divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder, or inheritance of such premises after the termination of any particular estate therein ; or who, by any cSntiiigency contained in any will or grant, or otherwise, may be or may become entitled to any beneficial interest in the premises ; CH XX.J PAETITION. 136 or who shall have any interest in any undivided share of the prem- ises, as tenant for years, for life, by the curtesy, or in dower ; 2. On all persons interested in the premises who may be unknown, and who shall' be proceeded against by publication of the summons under § 135 of the Code (11 Row. 277) ; and, 3. On all persons claiming from such parties, or persons, or either of them. 2 Rev. Stat. 322, sec. 35 ; Code, § 448. But such judgment and partition "shall not preclude any person, except those above specified, from claiming any title to the prem- ises in question, or from controverting the title or interest of the parties, between whom such partition shall -have been made, 2 Bev. Stat. 322, sec. 36 ; nor shall it affect any tenants or persons having claims as tenants, in dower, by the curtesy, or for life, to the whole of the premises which shall be the subject of partition. Ih. ; Laws of 1847,^. 556, § 5 ; 15 New York, 625. An actual sale or partition is effectual,, also, to bar the future contingent interests of persons not in esse, 17 New Yorh 210, aff. 5 Abb. 92. And, it seems, independent of the statute, con- tingent remainder-men, or persons to take under an executory devise, afterwards coming into being, are bound by the judgment as being virtually represented by the parties to the action in whom the present estate is vested. Ih. The judgment is binding upon the parties, in respect to the actual partition of the premises, from the date of the confirmation of the commissioners' report, without regard to the subsequent completion of the record. 9 Barb. 500. And it is not necessary that the judgment should be docketed. 42 Id. 591. In respect to the effect of the judgment upon creditors, it is provided by statute, that the partition of the premises shall not alter, affect, or impair the lien of any creditors by judgment, de- cree, mortgage, or otherwise, except that where the lien is on the undivided interest or estate of any of the parties, such lien, if partition be made of the premises, shall thereafter be a charge only on the share assigned to such party. 2 Hev. Stat. 318, sees. 8, 9 ; 12 Wend. 270. And such share shall be first charged with its just proportion of the costs of the proceedings in partition, in preference to any such lien. 2 Rev. Stat. 318, sec. 9. Revcrding the record of judgment.'] An exemplification of the 136 PARTITION. [CH. XX. judgment record may be recorded in the clerk's office of any county of the State in which any lands described therein may be situated, in the same manner that conveyances of real estate are now authorized to be recorded. Laws of 1846, p. 204, § 2. And it may, also, in like manner be recorded in the office of the register of the city and county of New York. Laws o/lSSl,^. 555. Such record, or an exemplification thereof, shall be received in evidence, and shall be as eflectual in all cases as the original exem- plification would be, if produced, and shall be open to the same objections. Laws ofl%i:&,p. 204, supra. IL Pboceedinqs for a Sai,e of thr Pkbmises. 1. Proceedings for a sale hy commissioners.'] It is provided by the statute, that if it shall apjpear to the commissioners that the premises of which partition is directed to be made, or any distinct lot, tract, or portion thereof, is so situated that a partition thereof cannot be made without great prejudice to the owners, they are required to report the fact to the court. 2 Mev. Stat. 322, sec. 28 ; Lh. 323, sec. 3T. For form, see Ajppendix, No. 494. If, upon the report of the commissioners being made, the court is satisfied that such report is just and correct, the court will thereupon, by a rule to be entered on the filing of the report, order the commissioners to sell the premises so situated, at public auction, to the highest bidder. 2 Bev. Stat. 323, sec. 37. For form, see Appendix, ISTo. 495. But the court must be satisfied that a necessity for such order exists. The report, therefore, should set forth the facts and circumstances upon which the opinion of the commissioners is founded, so that the court may be enabled to judge as to the propriety of a sale. 19 Wend. 226. And the court is only authorized to direct a sale of the prem- ises where they are so situated that a partition thereof cannot be made without great prejudice to the ov.-ners. The statute here refers to comparative prejudice between an actual partition and a sale ; and its language will not justify a sale where the aggre- gate amount of benefits from a sale, instead of a partition, will be small in reference to the value of the property. 10 Paige, 470 ; 2 Barl. S. C. R. 599. The prejudice spoken of means a prejudice to all the owutrs, and not to a part only. And a sale CH. XX.] PARTITION". 137 will not be ordered merely because it would be more profitable to one of tlie parties than a partition. Ih. In determining whether a sale of the premises is necessary, the true question to be considered is, whether the aggregate value of the several parcels into which the whole premises must be divided, will, when distributed among the different parties in severalty, be materially less than the value of the same property, if owned by one person. 6 Paige, 541, 54Y. Nor is it sufficient to justify the court in directing a sale of the premises, that large arrears of taxes and assessments remain unpaid. 11 How. 489. Where lands leased for a term of years are owned by several persons as tenants in common both of the rents and of the rever- sion, and the premises, in proceedings for partition, are directed to be sold, the sale must be made subject to the rights of the les- sees, who, by the sale, will become the tenants to the purchasers of the rents and reversion. 5 Paige, 518. The court is not restricted to a partition of all the lands, or a sale of the whole ; and where the interests of the parties require it, part of the lands held in common may be divided, and part of them sold. 2 Rev. Stat. 323, sec. 87 ; Ih. 330, sea. 81 ; 4 Barh. 228 ; 9 Id. 500. And so, a portion of the premises may be allot- ted to one of the parties, and the shares of the other parties may be sohl, where the interests of the parties require it. 4 Barb. 228. And an actual sale may be adjudged whenever, and as often as the court shall have ascertained and declared so many facts concerning the rights, titles and interests of all or any of the parties to the action, that a fair and just distribution of the proceeds can be made by assigning to any party or parties, in severalty, according to the statute, the proceeds of the sales of the shares of such parties respectively. Lavjs of 1847, p. 556 ; ante, jj. 128. And in such case, costs may be awarded as shall seem just ; and the court may discharge from the suit any party or parties whose interest therein has wholly ceased, and for the custody of any shares of the proceeds, as to which the rights and interests of the parties shall not have been fully ascertained and declared, and for such further proceedings as may be requisite, until the full ascertainment and declaration of the rights and interests of all the parties. 11. sec. 1. 138 PAETITION. [CH. XX. And so, shares of tlie proceeds as to which there are conflicting claims, not aftecting other shares, may be temporarily set off to the parties, with a proper reservation of the questions of right between the claimants. li. sec. 2, ante, p. 129. Where the proceedings are instituted in behalf of infants, a sale of the premises will not be directed unless it also appears satisfactorily to the court that the interests of such infants re- quire it. See Laws of 1852,^. 411, sec. 2 ; 26 How. 250. 2. Proceedings for sale ly a referee.'] The statute provides, that instead of appointing commissioners in the first instance to make partition, if it appears by the report of a referee, or other- wise, that the premises, or any part of them, are so circumstanced that a partition thereof cannot be made without great prejudice to the owners, the court may order a sale of such premises at public auction, by a referee, (a) upon the same notice and in the same manner as in sales by commissioners ; and on the referee's report being confirmed, he is required to execute conveyances to the purchasers at such sales, which shall have the same efiect as if executed by commissioners, as before prescribed. See 2 Eev. Stat. 330, sec. 81; Laws of 1847, p. 344, sec. 11; 2 All. 16, 18. The practice under the above statutory provisions is regulated by Kules 7S and 79 of the Supreme Court. Under Rule 78, it is provided, that where the rights and in- terests of the several parties, as stated in the complaint, are not denied or controverted, if any of the defendants are infants, or absentees, or unknown, the plaintiff, on an affidavit of the fact, and notice to such of the parties as have appeared, may apply at special term for an order of reference, to take proof of the plaintift''s title and interest in the premises, and of the several matters set forth in the complaint ; and to ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances by which the same are held. And Rule 79 provides, that where the whole premises of which partition is sought are so circumstanced that a partition (a) In Buct case, also, where a sale of the premises is ordered, the court may direct it to be made by the sherifT of the county where the premises are situated. ^^ lit.'. Siat. 330, sx. 81; Laws of 18i1 , p. 344, § 77; Oode, §287; 2 .ibb. 13. CH. XX.] PAETITION. 139 thereof cannot be made without great prejudice to the owners, due regard being had to the power of the court to decree com- pensation to be made for equality of partition, and to the ability of the respective parties to pay a reasonable compensation to produce such equality, or where any lot, or separate parcel of the premises, which will exceed in value the share to which either of the tenants in common may be entitled, is so circum- stanced, the plaintiff, upon stating the fact in the affidavit which is to be filed for the purpose of obtaining an order of reference under the preceding rule (Rule 78), may have a further provision inserted in such order of reference, directing the officer or person to whom it is referred to inquire a^d report whether the whole premises, or any lot or separate parcel thereof, are so circum- stanced that an actual partition cannot be made ; and that if he arrives at the conclusion that the sale of the whole premises, or of any lot or separate parcel thereof, wUl be necessary, that he speciiy the same in his report, together with the reasons which render a sale necessary ; and, in such a case, that he also ascer- tain and report whether any creditor, not a party to the suit, has a specific lien, by mortgage, devise, or otherwise, upon the undivided share or interest of any of the parties in that portion of tlie premises which it is necessary to sell ; and if he finds that there is no such specific lien in favor of any person not a party to the suit, that he further inquire and report whether the undivided share or interest of any of the parties in the premises is subject to a general lien or incumbrance, by judgment or decree ; and that he ascertain and report the amount due to any party to the suit, who has either a general or specific lien on the premises to be sold, or any part thereof, and the amount due to any creditor, not a party, who has a general lien on any undi- vided share or interest therein, by judgment or decree, and who shall ap})ear and establish his claim on such reference. The referee shall, also, if requested by the parties who appear before him on such reference, ascertain and report the amount due to any creditor, not a party to the suit, wliich is either a specific or general lien or incumbrance upon all the siiares or interests of the parties in the premises to be sold, and which would remain as an incumbrance thereon in the hands of the ]nirdia,3er; to the end that such directions may be given in relation to the game, in the decree for the sale of the premises, as shall b3 most no PARTITION. [CH. IX. beneficial to all the parties interested in the proceeds thereof on such sale. The 79th Kule, so far as it relates to the inquiries before the referee, as to the necessity of a sale, is founded upon the 81st section of the statute (supra) ; and that part of the rule which requires the examination as to liens and incumbrances, is in pursuance of the 42d section of the statute. See 2 Barb. Ch. Pr. 305. The true question to be considered by the referee in deter- mining whether a sale of the premises is necessary, is whether the aggregate value of the several parcels into which the whole premises must be divided, will, when distributed among the dif- ferent parties in severalty, be materially less than the value of the same property, if owned by one person. 6 Paige, 541, 547. In determining that question, too, the referee is not to be governed by the consideration that it would be for the benefit of infants to have their shares of the estate converted into money intead of remaining in land, producing a less income. If their interest requires the property to be sold for the purpose of a bet- ter investment, it may be done afterwards under the general law relative to the sale of infants' estates; and where they will not run the risk of having their interests sacrificed for want of funds to compete with adult tenants in common at the sale. lb. 546. And the referee is to consider, also, that the words " without great prejudice to the owners," are to be understood to refer to comparative prejudice between an actual partition and a sale. And, therefore, a sale will not be justified wliere the aggregate amount of benefits from a sale, instead of a partition, will be small, in reference to the value of the property. 2 Barb. S. G. B. 599 ; 10 Paige, 470. The referee should require the plaintiff to produce the abstracts of his title, as a tenant in common in the premises, and to trace • it back to the common source of title of the several tenants in common ; and in his report, he should, as far as practicable, give an abstract of the conveyances of the several undivided shares or interests of the parties from the time they were united in one common source. 7 Paige, 39 ; 8 How. 456 ; 6 Id. 491. The plaintiff' must produce proof of his title ; and this proof must be such as would enable a plaintiff to succeed in an action of eject' ment. 3 Wend. 436 ; and see 2 Paige, 27. But it is not neces- CH. XX.] PARTITION. 141 sary for the referee to annex to his report a search for mortgages or conversances ; but it is sufficient if his report states explicitly that he had caused the necessary searches to be made, and cer- tifies what incumbrances, &c., there are. 27 How. 289. If the referee comes to the conclusion that the premises are susceptible of actual partition, he need proceed no further, but will report that fact to the court, \Vhich will thereupon direct an order for partition, and appoint commissioners. If he finds, however, that a sale is necessary, he will then proceed to execute the further provisions of the order, by inquiring in respect to in- cumbrances, advertising for liens, &c. But a reference as to the necessity of a sale, is not absolutely required either by the statute or the rules. And therefore, if it appears either on the pleadings or by the proofs, that the prem- ises are incapable of actual partition, the court may adjudge a sale without a reference, 4 Paige, 338, 344 ; and in such case, the parties, if they choose, may also omit the reference as to liens. 10 How. 188. If there are liens in fact, the purchaser will discover them on examining his title, and will decline to take the title until the liens are discharged. Ih. And even if the premises are to be sold, the reference to inquire for liens and incumbrances may be omitted, unless it is asked for by one of the parties to the action. 12 Wend. 269 ; 10 How. 188 ; and see 27 Id. 289. The proceedings in cases of a reference, are substantially the same as in the proceedings before commissioners, in respect to which, see ante, p. 136 ; and see 2 Barh. Oh. Pr. 304 ; and see, also, under- the next .head,^osi{. For forms, see Appendix, Nos. 495 to 501. ' Upon the coming in of the report of the referee, the same must be filed, and a note of the day of the filing must be entered by the clerk in the proper book, under the title of the cause or proceeding, and the report will thereupon become absolute, and stand as in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of the filing of the same. Sup. Court Pules, No. 32. If exceptions are filed and served within such time, the same may be brought to ;i hearing at any special term thereafter, on the notice of any party interested therein. Ih, and see ante, vol. 1, p. 299, and note. 142 PARTITION. [CH. XX. Creditors to he Irought in ; reference as to liens, d:c.] Before the making of any order for the sale of the premises,, where the creditors having specific liens shall not have been made parties, the court, on the motion of either party, will direct the plaintiff to amend his complaint, by making every creditor having a specific lien on the undivided interest or estate of any of the parties, by mortgage, devise, or otherwise, a party to the pro- ceedings. 2 JRev. Stat. 324, sec. 42, as amended by Laws of 1830, c/i. 320. In such case, also, the court will direct a reference to the clerk, or otlier suitable person, to ascertain and report whether the shares or interests in the premises of the parties in the suit, or any of them, are subject to any general lien or incumbrance by judgment or decree. Ih. ; Laws of 1847,^. 344, §77. The order directing the clerk to report as to liens, &c., is usually embodied in the order of reference as to the propriety of a sale. See ante, p. 119. But a reference is not indispensable; and an order for the sale of the premises may be made without such reference, unless it is asked for by one of the parties to the action. 12 Wend. 269 ; 10 Ilotv. 188 ; and see 27 Id. 289. It is tlie duty of the referee, not only to inquire as to liens upon the share of each party in the action, but he should also cause searches of the records to be made in the same manner as if he were examining a title. These are generally furnished by the attorney for the plaintiff. The referee may also, as we have seen, require an abstract of the title to be laid before him. And he should also be famished with an affidavit as to deaths, descents, intestacy, &c., made by some person acquainted with the facts, to enable him to ascertain in whom any part of tlie estate is or has been vested. And he should summon before him such persons as he ascertains to be creditors, and get a state- ment from them. 2 Van Sant. Pr. 36, citing 2 Roff. Oh. Pr. 184, 185 ; Edw. on Referees, 457. The object of the reference is to enable the court to distribute the purchase money in a proper manner ; and if the referee reports against the claim of any person having a lien, by judg- ment or decree, upon the share of any of the parties, the claim- ant should except to the report within the time prescribed by the rules, to preserve his lien upon the purchase money, which, by the statute, becomes a substitute for the land itself. See 4 CH. XX.J PARTITION. 143 Paige, 441, 442. "For form of referee's report, see Appendix, No. 49Y. Upon the cominsr in of tlie referee's report, the same should be filed, and a note of the day of filing must be entered by the clerk, in the proper book, under the title of the cause, and the report will stand confirmed, unless excepted to as in other cases. If exceptions are taken, the same are brought to a hearing at a special term ; the same, also, as in other cases. Suj). Court Rules, No. 32 ; ante, vol. 1, p. 299, and note. Advertising for liens, c&c] If a reference is ordered as to liens and incumbrances, the referee is required immediately thereafter to cause a notice to be published once iu each week for six weeks successively, in the State paper, and also in a news- paper printed in every county in which any of the lands in ques- tion are situated, requiring all persons having any general lien or incumbrance on any undivided interest or share therein, by judg- ment or decree, to produce to the referee on or before a certain day to be named in such notice, proof of all such liens and incumbrances, together with satisfactory evidence of the amount due thereon ; and the referee shall report, with all convenient speed, the names of the creditors, the nature of the incumbrances, the daces thereof, and the several amounts appearing to be due thereon ; 2 Bev. Stat. 324, sec. 43, as amended by Lavis of 1830, ch. 320. For form of notice, see Appendix, No. 496. But it is not necessary to advertise for persons having general liens by judgment or decree to present their claims to the referee, in order to render the sale regular and valid. The reference and the advertisement are only intended as a means of cutting oflp cer- tain general liens. If there are no such liens, there is no use of the advertisement; and if the parties know there are none, there is no reason why they should be subjected to the expense and delay of a reference and advertisement which must end in nothing. If the advertisement is omitted, and there are in fact such liens, the purchaser on examining the title, would discover them, and decline to take the title until the liens were discharged, and so no one would be injured. 10 Ilow. 181, 190, per Mitchell, J., and see 2T Id. 289 ; aff. 26 Barl. 475 ; 5 Ahh. 451. As, however, judgments and decrees do not cease to be a lien as against heirs-at-law at the end of ten years, the parties to a suit 144 PARTITION. [CH. XX. who choose to omit this ordinary advertisement, should produce, at their own costs, regular searches for all judgments and decrees for at least twenty years. 10 How. 191, per Mitchell, J. Where the interest of one of the parties in the -premises is sold imder a judgment against him subsequent to the filing of the complaint and notice of lis pendens, the purchaser must come in before the referee and prove his claim under the order of refer- ence as to general liens ; as his interest in the premises will be divested by a sale under the judgment in partition. See 7 Paige, 550. Order directiiig moneys to le 'brought into cohort.'] If it ap- pears by the proceedings that there are any existing incumbrances upon the estate or interest in the premises of any party named in the proceedings in the suit, the court will, in the order of sale, direct the commissioners (c/) to bring into court and pay to the treasurer of the coimty, or in the city of JSTew York, to the chamberlain of the city, the portion of the moneys arising from the sale of the estate and interest of such party, after deducting the portion of the costs, charges and expenses to which it shall be liable. 2 Bev. Stat. 324, sec. 44 ; 1 Id. 370, see. 29 ; laws of 1848, p. 404 ; Zatos of 1847, p. 340, seo. 71 ; Swp. Court Rules, No. 81. Terms of credit.'] The court must direct in the order of sale, the terms of credit which may be allowed, for any portions of the purchase money of which it shall think proper to direct the investment, and for such portions of such purchase money as are required, by the provisions herein, to be invested for the benefit of any unknown owners, any infants, any parties out of the State, or any tenants for life, in dower, or by curtesy. 2 Rev. Stat. 323, sec. 38. -■) Sale of dower or other life estate in prem,ises.] Whenever the estate of any tenant in dower, or by the curtesy, or for life, to the whole or any part or share of the premises in question, has been admitted by the parties, or ascertained by the court, to be existing at the time of the order for such sale, and the person (a) Or the referee, or sheriff, as the case may be. 2 Rev. Stat. 330, sec. 81 ; Laws of 184"?, p. 344, § 77 ; Code, § 287 ; 2 Abb. 16, 18. CH. XX.] PAETITION. 145 entitled to siicli estate has been made a party to the proceedings, the court is required first to consider and determine, under all the circumstances of the case, whether such estate ought to be excepted from sucli sale, or whether the same should be sold ; and in making such determination, they shall have regard to the interests of all the parties. 2 Rev. Stat. 325, sec. 60 ; 7 Paige, 406 ; 15 JSTew York, 635. Notice of sale.'] The commissioners {a) are required by the statute, to give notice of any sale to be made by them, for the same time and in the same manner, as is required by law on sales of real estate by sheriffs on execution. 2 Rev. Stat. 326, sec: 56. The time and place of holding any such sale, therefore, must be j)ublicly advertised, previously, for six weeks successively, as follows : 1. A written or printed notice thereof must be fastened up in three public places in the town where the real estate is to be sold ; and if such sale be in a town different from that in whicli the premises to be sold are situated, then such notice must also be fastened up in three public places of the town in which the premises are situated ; 2. A copy of such notice must be printed once in each week in a newspaper of such county, if there be one ; 3. If there be no newspaper printed in such county, then the notice must be published in the State paper once in each week. II. ; and see 2 Rev. Stat. 368, sec. 34. For form of notice, see A^endix, No. 507. All the other provisions of the title of the Revised Statutes in relation to the notice of sale by sheriffs on execution (2 Rev. Stat. 368, 369, 370), are also made applicable to sales of lands under a judgment in partition. 22 Rarh. 167. And therefore, the section of the statute which provides that the omission of the sheriff to give notice of sale under an execution, shall not affect the validity of any sale made to a purchaser in good faith, without notice of any such omission, applies to sales under judg- ments in these proceedings. Ih. In sales in the city of New Tork, the notice must be for six weeks, the statutory' time ; and the rule of the Supreme Court (No. 73), providing for a notice of three weeks on the sale of (a) See Note a, on p. 144-, ante Vol. II.— 10 146 PARTITION. [CH. XX. lands lying in any of the cities of this State, has no application to sales under a judgment in partition. 6 ITow. 318. Proceedings on sale.] The commissioners {a) should meet at the time and place designated in the notice, and then and there sell the premises, at public auction, to the highest bidder. If the premises consist of distinct buildings, farms, or lots, they must be sold separately. 2 Bev. Stat. 326, seo. 57. Neither of the commissioners, nor any person for the benefit of either of them, shall be interested in the purchase, nor directly, nor indirectly, purchase any of the premises sold ; nor shall any guafdian of any infant party in such suit purchase, or be interested in the purchase of, any lands being the subject of such suit, ex- cept for the benefit or in behalf of such infant ; and all sales con- trary to the provisions of this section, shall be void. lb. seo. 58 ; 22 Barb. 168. And where the purchase is made by the guar- dian of an infant, but not for the benefit of such infant or in his behalf, the sale is void, notwithstanding the purchase was not made by such guardian for his own benefit, but as agent for others. lb. The terms of the sale must "be made known at the time. 2 Hev. Stat. 326, sec. 67. With respect to the terms of credit, these may be determined or ascertained, by reference to the order of the court directing the sale. lb. 323, seo. 38. The portions of the purchase money for which credit shall have been allowed, must always be secured, at interest, by a mortgage of the premises sold, by a bond of the purchaser, and by such other security as the court shall prescribe. Ji. seo. 39. And the commissioners (a) may take separate mortgages and other securities, for such convenient shares or' portions of the purchase money, as are directed by the court to be invested as aforesaid, in the name of the treasurer of the county in which the premises are situated, or in the city of New York, to the chamberlain of the city, or his successors in ofiice, and for such shares as any known owner of full age shall desire to have so invested, in the names of such owners. lb. sees. 40, 41 ; 1 Id. 370, seo. 29 ; laws of 1848,^. 404 ; Zaws of 1847,^. 341, sec. 71. (a) See Note a, on p. 144, ante. CH. XX.J PARTITION. 147 Upon such sales being confirmed by the court, the commis- sioners are required to deliver the mortgage or other securities so taken by them, to the treasurer or chamberlain of the county, or to the known owners whose shares were so invested. Id. ibid. No order to stay the sale of the premises can be granted or made by a judge out of court, except upon a notice of at least two days to the plaintiff's attorney. Sup. Court Rules, No. 80. Report of sale. \ After completing the sale, the commission- ers {a) are required to report the same to the court, on oath, with a description of the different parcels of land sold to each pur- chaser, the name of such purchaser, and the price bid by him ; which report must be filed in the office of the clerk of the court in which the action is brought. 2 R&o. Stat. 327, sec. 59. For form, see Appendix, No. 508. Order thereupon.] If the sale is approved and confirmed by the court, an order must be entered, directing the commissioners, or any two of them, (a) to execute a conveyance pursuant to such sale ; which they are authorized by statute to do. 2 Rev. Stat. 327, sec. 60. Such conveyance, when executed, must be recorded in the county where the premises are situated. Ih. sec. 61. Compelling purchaser to complete the pur chase. 1 If the pur- chaser refuses to take the premises, after having purchased the same, he will be compelled to do so on motion to the court. But the purchaser will not be compelled to complete the pur- chase, where there has been unreasonable delay in perfecting the title ; and where the delay was ten months, it was held to be unreasonable, and an order to compel the purchaser to take the title, was refused. 22 Wend. 468. Nor will the court compel him to take the title where the completion of the sale has been delayed so long, by the fault of the parties, that he cannot have the benefit of bis purchase substantially as if the sale had been completed at the time contemplated by the terms of sale. 7 Paige, 387. Nor would the purchaser, where the premises are not sold' at his risk, be compelled to complete the purchase, in case the premises should be incumbered, or no title should pass by the sale, or there should be difficulty in obtaining possession. 1 Paige, (a) See note a, on p. 144, wnte. 148 PARTITION. [CH. X2. 120. Nor if the plaintiff has omitted to file any of the papers necessary to the^ judgment ; though this irregularity may be cured by allowing them to be filed nunc pro tunc. 7 Abb. 473 ; 6 Id. 350; s. c. 17 New Yorh, 218. Nor if there is danger of the property being made liable for the debts of a former deceased owner of the premises, where the action for partition is brought by the heirs of such owner. 10 How. 189 ; 7 Id. 307 ; 1 Barb. S. a R.1Q; 3 Abb. 249 ; 5 J^^. 53 ; 7 Id. 473, 478 ; 7 Paige, 550. The purchaser, however, w^onld not be permitted to object to the title merely on the ground that there is a possibility that some person, other than the parties in the suit, has an interest in the premises, where there is no probability that any such interest exists. 4 Paige, 441 ; 3 Bosw. 430. And so, where all the necessary parties are joined, it is no excuse for refusing to take the title, that there are errors in stating the interests and shares of the parties, or any omission to state what on motion the plain- tiff might have been compelled to insert by way of amendment. 3 Bosw. 439 ; 6 Abb. 59. And so, it is immaterial that the plain- tiff omitted to allege that there were no incumbrances; or that the referee omitted to annex searches for incumbrances to his report, lb. ; 27 How. 289 ; or omitted to advertise for liens or incumbrances, 5 Abb. 451 ; 10 How. 188 ; 27 Id. 289, affirming 26 Barb. 475 ; or that the purchaser, not a tenant in common at the commencement of the action, was not made a party to the action — he holding a deed of a portion of the premises purchased pendente lite from some of the heirs, defendants in the partition suit ; especially where the deed expressed in terms that the con- veyance was made subject to the proceedings in partition. 27 How. 289, affirming 26 Barb. 475. And see, on the same subject, 18 How. 476; 15 JSTew Yorh, ^17; 2 Abb. 7; Zor^, 21Y. The conveyance will also, under the statute, operate to cure any defect or irregularity in the notice of sale. 22 Barh. 16Y. And it will also be a bar against all persons having general liens or incumbrances by judgment or decree on any undivided share or interest in the premises sold, in all cases where the notice to such creditors prescribed by the statute, shall have been given ; and also against all persons having specific liens on any undi- vided share or interest therein, who shall have been made parties to the proceedings. Laivs of 1830, chap. 320, § 45, added to 2 Rev. Stat. 32Y; 4 Paige, 441. But no creditor liaving a specific lien on any undivided share or interest in the premises, will be affected by such sale or con- veyance, unless ,he is made a party to the proceedings. Id. Hid. It' a mortgage, however, is given on an undivided share of the premises, pending the proceedings for partition, the lien of the mortgagee will be divested by a sale of the premises under the judgment of the court, and the purchaser will take the estate discharged ii-om the incumbrance. 1 Paige, 4:84:. And the same result will follow if a judgment is rectovered during the pendency of the proceedings. 8 Id. 643. The legal lien, in such cases, is converted into an equitable lien upon the fund produced by the sale; to the same extent as the legal lien. Ih. ; and see 4 Id. 442. Costs and expenses of the action.] The costs and expenses of the proceedings are required to be deducted from the proceeds of every sale made by the commissioners ; and to be paid in the first instance, to the plaintiffs, or their atttorney. 2 liev. Stat. 32Y, sec. 62; 1 Bari. S. C. i?. 561, 564. And see post, -p. 158, " Costs- of the action." A party entitled to dower in the premises sold, where she has been made a party to the proceedings, is obliged to contribute towards the costs and expenses. 2 Rev. Stat. 326, sec. 54 ; 1 Barl. supra. Proceeds of sale.] The statute provides that the proceeds of every sale, after deducting the costs, snail be divided among the parties whose rights and interests shall have been sold, in 150 PARTITION. [CH. IX, proportion to tlieir respective rights in the premises; and the shares of such of the parties as are of fall age, shall be paid to them or their legal representatives by the commissioners, or shall be brought into court for their use. 2 Rev. Stat; 327, sec. 63 ; 16 Barh. 531. If the shares are brought into court, they should be deposited with the treasurer of the county in which the premises sold are situated ; or in the city of New York, with the chamberlain of that city. 1 Eev. Stat. 370, sec. 29 ; Lasjos of 1848,^. 404; Laws of 1847,^7. 340, § 71 ; Sup. Court Rules, No. 81. The proceeds of the sale are personal property; and upon the death of any of the parties, subsequent to the sale, they will descend to the personal representatives. 16 Barb. 531, 534. Shares of Infants.] Where any of the known parties are infants, the court may, in its discretion, direct the shares of such infants to be paid over to- their general guardian, or to be in- vested in permanent securities, at interest, in the name and for the benefit of such infants. 2 Rev. Stat. 327, sec. 64 ; 16 Barb. 531 ; 2 Barh. Ch. R. 314. And the shares ought not to be paid to the guardian ad litem of such infants. lb. But such shares, or any part thereof, will not be paid over to the general guardian, except so much thereof, or of the interest or income from time to time, as may be necessary for the sup- port or maintenance of such infants ; unless such guardian has previously given sufficient security on unincumbered real estate to account to such infants for the same, in the usual form. Sup. Court Rides, No. 70 ; and see Code of Pro. § 420 ; Laws of 1848,^. 407, §8. And no order shall be made for the payment of any such moneys to any person claiming the same, except upon petition, accompanied by a certified copy of the order in pursuance of which the money was brought into court, together with a state- ment g'' the county treasurer, city chamberlain, or other deposi- tary of the money, showing the present state and amount of the funds, separating the principal and interest, and show- ing the amount of each ; and the court may take such proof of the truth of the matters stated in the petition as shall be deemed proper, or may refer the same to a suitable referee. CH. XX.] PAETITION. 151 to take proof and report 'thereon. Sup. Court Rules, No. 70, supra. "Where the lands of a wife, who is an infant, are sold, the pro- ceeds will not be paid to the husband, but will be directed to be brought into court, and to be secured for her use until she becomes of age. 1 Paige, 483 ; and see yost. If the shares of the infants are directed to be invested, they should be brought into court, and paid to the treasurer of the county for that purpose, Sup. Court Rules, No. 81 ; or, by an order of the Supreme Court, such investment may be directed to be made by and in the name of the guardian of such infants. Laws o/ 1848, p. 40 Y, sec. 8 ; and see supra. Shares of married women.'] When the lands of a married woman are sold, the proceeds will be directed to be paid to her, and not to her husband. See 11 How. 176 ; 8 Id. 389 ; 16 Barl. 581, 535; LawsoflBm^p. 157; 1862,^.343. And where the order of the court directed the share of one of the heirs who was a married woman, to be paid to her husband, in right of his wife, and before actual payment the husband died, leaving his wife surviving,— it was held that the wife became reinstated in her original rights, and entitled to receive her share, not as her . husband's widow, or representative, but as the heir of the original owner of the land. 16 Barh. 531. If the wife whose lands are sold, is an infant, the proceeds will be directed to be brought into court, to be invested for her use, until she becomes of age. 1 Paige, 483, supra. With respect to the wife's inchoate right of dower in the premises sold, see post, p. 157, " Eights of married women and others, having future interests in property." Shares of unknown and absent owners^ Where any of the parties whose interests have been sold, are absent from the State, without legal representatives in this State, or are not known or named in the proceedings, the court will direct the shares of such parties to be invested in permanent securities at interest, for the benefit of such parties, until claimed by them or their legal representatives. 2 Rev. Stat. 327, sec. 65; 16 Barh. 531. Shares of tenants for Ufe.] Where the proceeds of a sale, 152 PARTITION. [CH. XX. belonging to any tenant in dower, or "hj the curtesy, or for life, shall be brought into court as directed by the statute, the court shall direct the same to be invested in permanent securities at interest, so that such interest shall annually be paid to the parties entitled to such estates, during their lives respectively. 2 JSev. Stat. 327, sec. 66 ; 16 Barb. 531 ; and see ante,j?. 149, " Proceeds of sale." And the party entitled to such interest will be charged with the expense of investing such proceeds, and of receiving and pay- ing over the interest or income thereof. Sup. Court Rules, No, 84. But if such party is willing, and consents to accept a gross sum in lieu of such annual interest or income for life, the same is required to be estimated according to the then value of an annuity of six per cent, on the principal sum, during the probable life of such person, according to the Portsmouth or J^orthamp- ton Tables. Ih-. See the Northampton Tables in the Appendix, No. 527. Security to refund.'] The court may, in its discretion, require all or any of the parties, before they shall receive any share of the moneys arising from such sale, to give security to the satis- faction of the court, to refund the said share with interest thereon, in case it shall thereafter appear that such party was not entitled thereto. 2 Eev. Stat. 327, sec. 67. In whose name securities to be taken.'] Where any security is directed to be taken by a court, or any investment to be made, or any security shall be taken by commissioners on the sale of any real estate, as directed by the statute, except where pro- vision shall be made for taking the same in the name of any known owner, the bonds, mortgages, or other evidences thereof, shall be taken in the name of the treasurer of the county where the fund belongs, or such other county treasurer as the court shall direct, and his successors in office, who shall hold the same by virtue of their respective offices, and shall deliver them to their successors. 2 Rev. Stat. 328, sec. 68. And with respect to the shares or property of infants, the Supreme Court may order any bond, mortgage, or other securi- ties, to be taken by and in the name of the g uardian of such CH. XX.] PAETITIOK. 153 infants, to be collected and invested as such court shall direct. Laws of 184:8, p. 407, sec. 8. Treasurer to receive money, and accounts, So.] The treas- urer is required to receive the interest or principal of anj sums as they become due, and apply or re-invest the same, according to the circumstances of the case, as the court shfill direct. 2 Hev. Stat. 328, sec. 69 ; Laws of 1848, j>. 404. And he is required, also, at the first general term of the court, for the district in which he resides, in each year, to render an account to the couit in writing, and on oath, of all moneys received by him, and of the application thereof And any neglect of that duty will sub- ject him to suspension or removal from office. 2 Hev. Stat. 328, sec. 69 ; Sup. Court Hulas, No. 82. (a) Mow investments to hemade.] All investments and re-invest- ments under the provision of the statute, shall be made in the public stocks of the United States, or of this State, or on bond and mortgage upon unincumbered real estate of at least double the value of such investment. 2 Rev. Stat. 328, sec. 10. And no such security', bond, mortgage, or other evidence of such investment, shall be discharged, transferred, or impaired, by any act of the officer holding the same, without the order of the court, entered in the minutes thereof. lb. ; and 4 Sand. Ch. R. 51. Suits in reference to such investments.] The person inter- ested in such investments or securities, may, with the leave of the court, prosecute the same in the name of the existing treas- urer ; and no suit shall be abated by the death, removal from office, or resignation of the officer to whom such evidences were executed, or any of his successors. 2 Rev. Stat. 328, sec. Yl ; Zatos o/" 1847, p. 340, sec. 71; Laws of 184:8, -p. 404. Application to court for moneys.] "Where there are existing incumbrances upon the estate or interest in the premises of any (a) This rule also provides the manner in which the accounts of the treasurer are to be kept, the details of his report to the general term, and the practice in respect to ascertaining the correctness of such report. 154 PARTITION. [CH. XX. party to the proceedings, the court, as we have seen [ante, p. 144, and note), is required, in tlie order of sale, to direct the commis- sioners, or referee, or sheriff, to bring into court the portion of the naoneys arising from the sale of the interest of such party, after deducting the costs, charges, and expenses to which it shall be liable. 2 Eev. Stat. 32i, sec. 44. And such party is authorized to apply to the court to order such moneys, or such part thereof as he shall claim, to be paid to him, which application must be accompanied, — 1. By his own affidavit, slating the true amount actually due on each incumbrance, the owner of such incumbrance, and his residence, as far as known to such party ; 2. By proof, by affidavit, of the due service of a notice on each owner of any incumbrance, of the intention to make such appli- cation, at least fourteen days previously. If such owner reside in this State, such notice must be served personally, or if he be absent from his residence, by leaving a copy there, with some person of proper age. If such owner reside out of this State, such notice may be served on him personally, twenty days previously, or by publishing the same in the State paper four weeks successively, once in each week. lb. sec. 45. Upon such application and proof of notice being made, the court will proceed to hear the proofs and allegations of the parties. lb. sec. 46. For forms of affidavit, notice, &c., see Appendix, Nos. 524 to 526. And if any question of fact arises, which, in the opinion of the court, cannot be satisfactorily determined without a trial by jury, the court will award a feigned issue, to be tried as in other cases. The costs of such trial must be paid by the party failing ; which payment will be enforced by attachment, as in other cases. 2 Hev. Stat. 324, sec. 46. Distribution of moneys ; orders for paying out moneys.'] When the amount of existing incumbrances is ascertained, the court will proceed to order a distribution of the moneys so brought into and remaining in court, among the several creditors having such incumbrances, according to the priority thereof respectively. 2 Rev. Stat. 325, sec. 47. And by ,Eule 83, it is provided that orders upon banks or other companies for the payment of moneys out of court, shall be made CH. XX.] PARTITION. 155 payable to the order of the person entitled thereto, or of his attorney duly authorized, and shall specify in what particular suit, or on what account the money is to be paid out, and the time when the order authorizing such payment was made. And in every draft upon the New York Life Insurance and Trust Company, or the United States Trust Company, by the county treasurer, for moneys deposited with said company, or for the in- terest or accumulation on such moneys, the title of the cause or matter on account of which the draft is made, and the date of the order authorizing such draft, shall be stated ; and the draft shall be made payable to the order of the person or persons entitled to the money, or of his or their attorney, who is named in the order of the court authorizing such draft. And to autho- rize the payee or indorsee of the draft to receive the money thereon from the Trust Company, the same shall be accompanied by a certified copy of the order of the court authorizing such draft, countersigned by the justice by whom such order was made. But where periodical payments are directed to be made out of a fund deposited with such company, the delivery to the secretary of the company of one copy of the order authorizing the several payments, shall be sufficient to authorize the payment of subse- quent drafts in pursuance of such order. Treasurer to have incumbrances discharged.'] The statute makes it the duty of the treasurer, or other officer by whom any such incumbrance sliall be paid off, to procur.e satisfaction thereof to be acknowledged, in the form required by law, and to cause such incuTnbrance to be duly satisfied or canceled of record, and to defray the expenses thereof out of the portion of the moneys in court belonging to the party by whom such incumbrance was payable. 2 Rev. Stat. 326, sec. 48 ; Laws of 1848, p. 404. Other parties not to he delayed:] The proceedings to ascertain and settle the amount of incumbrances, as provided by the statute, are not to affect any other party in the suit for partition, nor delay the paying over or investing of moneys to or for the benefit of any party upon whose estate in the premises there shall not appear to be any existing incumbrances. 2 Bev. Stat. 325, sec. 49. Proceedings on sale of dower, or other life estate.] Whenever 156 PARTITION. [CH. XX. the estate of any tenant in dower, or by the curtesy, or for life, to the whole or any part or share of the premises in question, has been admitted by the parties, or ascertained by the court, to be existing at the time of the order for the sale of the premises, and the person entitled to such estate has been made a party to the proceedings, the court is required first to consider and deter- mine, under all the circumstances of the case, whether such estate ought to be excepted from the sale, or whether the same should be sold ; and in making such determination, they shall have re- gard to the interests of all the parties. 2 Rev. Stat. 325, sea. 50 ; 7 Paige, 406 ; 15 JSTew York, 625. If a sale of the premises including such estate is ordered, the estate and interest of every such tenant or person will pass thereby ; and the purchaser, his heirs and assigns, will hold such premises free and discharged from all claims by virtue of any such estate or interest,- whether the same be to any undivided share of a joint tenant, or tenant in common, or to the whole or any part of the premises sold. 2 Hev. Stat. 325, sec. 51. Upon such sale being made of any such interest or estate, the court will direct the payment of such sum in gross, out of the proceeds thereof, to the person entitled to such estate in dower, tenancy by the curtesy, or tenancy for life, as shall be deemed, upon the principles of law applicable to annuities, a reasonable satisfaction for such estate or interest, and which the person so entitled shall consent to accept in lieu thereof, by an instrument under seal, duly acknowledged or proved in the manner that deeds are required to be proved to entitle them to be recorded. lb. sec. 52. For annuity table, see Appendix, JSTo. 527. In case no such consent be given at or before the coming in of the report of sale by the commissioners, then the court is required to ascertain and determine what proportion of the proceeds of such sale, after deducting all expenses, will be a just and reasonable sum to be invested for the benefit of the person entitled to such estate or interest in dower, by the curtesy, or for life ; and to order the same to be brought into court, for that purpose. Ih. sec. 53. The proportions of the proceeds of such sale, are to be ascer- tained and determined, in the several cases, as follows : 1. If an estate in dower shall have been included in the order of sale, its proportion shall be one-third of the proceeds of the CH. XX.J PAETTTIOK. 157 sale of the premises, or of the sale of the undivided share in such premises, upon which such claim of dower existed. 2. If an estate by the curtesy, or other estate for life, shall be included in the order of sale, its proportion shall be the whole proceeds of the sale of the premises, or of the sale of the undi- vided share thereof, in which such estate shall be. And in all cases, the proportion of the expenses of the pro- ceedings are to be deducted from the proceeds of the sale. II. sec. 54. If the persons entitled to any such estate in dower, by the curtesy, or for life, be unknown, the court will take order for the protection of the rights of such persons, in the same manner, as far as may be, as if they were known and had appeared. li. sec. 55 ; and see ante, p.'lBl. Mights of married women and others having future interests in property.'] In proceedings for partition, the inchoate right of dower of a married woman, in the undivided share of her hus- band in the land, where the wife is a party to the proceedings, will be divested by a sale of the premises, under the judgment of the court. 7 Paige, 387 ; 22 Wend. 498 ; 5 AU. 100, 102 ; Laws of 1840, p. 128. And so, also, the interest of those having vested or contingent future rights or estates in the land, will be divested by a sale. Id. Hid. ; *17 Mw York, 210, aff. 6 Aih. 92. In cases of sales of land in which such inchoate right, or such future right or estate exists, it is the duty of the court under whose judgment snch sale is made, to ascertain and settle the proportional value of such inchoate, contingent, or vested right or estate, according to the principles of law applicable to annui- ties and survivorships, and to direct such proportion of the pro- ceeds of the sale to be invested, secured, or paid over in such manner as shall be judged best to secure and protect the rights and interests of the parties, {a) laws of 1840, supra. Formerly, the usual practice where a release could not be (o) For the rule ti5 compute the present value of an inohoate or contingent right of dower, see 1 Paige, 408 ; WKean's Pr. L f^'es, 25, § 4 ; Henry's Ann. Tables, 87 Prob. 4. And of an inchoate tenancy by the curtesy, 11 How. 177, 180. And see Annuity Table in Appendix, No. 527. 158 PARTITION. [CH. XX. obtained from the wife, of lier inchoate right of dower in the premises, was, to pay the money set apart for such right into court. But it seems the practice is now changed ; and the money may now be paid directly to the wife. 11 How. 176, 178. Such money represents the present worth of her inchoate right in the premises, and is her absolute property. 4 Sand. Ch. B. 396. But the wife may release her right or interest to her husband, and acknowledge the same before any officer authorized to take the acknowledgment of deeds to be recorded in this State, or before the referee or one of, the commissioners making the sale, separate and apart from her husband in the manner required by law (1 Bev. Stat. 758), in respect to the acknowledgment of deeds by married women. Laws of 1&40, p. 128 ; Ih. 321. Upon the execution of such release, the share of the proceeds of the sale arising from the wife's contingent interest, is required to be paid to her husband. Laws of 1840,^. 128, seo. 2. The release, so executed, and also the payment, investment, or otherwise securing the share of such married woman, or of the person having such future right in the proceeds of the sale, as above directed, will be a bar both in law and equity against any such right. Ih. sec. 3. And the persons so barred not only include those in being in whom the estate might subsequently vest, but those not in being. 5 Abh. 92, 103 ; aff. 17 New To7'k, 210. With respect to the value of an inchoate tenancy by the curtesy, this depends not only upon the principles applicable to life annuities and survivorships, but upon the fact of issue, and if none, upon the likelihood of issue. 11 How. 177, 180. Costs of the action.^ The statute provides that when final judgment for partition is rendered, the court shall direct each of the parties, except the plaintiffs, to pay to the plaintiffs, a pro- portion of the costs and charges of the proceedings, to be ascer- tained by the court, according to the respective rights of the parties, and the proportion of such costs assessed upon the unknown owners, to be chai'geable on the part remaining undi- vided ; and upon such judgment execution may issue as in per- sonal actions, and may be levied upon the property of the par- ties respectively charged with such costs, and upon any share or CH. XX.J PARTITION. 159 part of the premises allotted on any such division, to any owner unknown or not named, and upon every portion remaining undi- vided, for the proportion adjudged to be paid by such owners, or •chargeable to the part remaining undivided. And a sale of such premises tliereupon will be as valid as if such unknown owner had been named in the proceedings and in such execution. 2 Rev. Stat. 328, sec. T2. But the costs of parties unnecessarily made defendants, in an action for partition, will be directed to be paid by the plaintiff personally ; and cannot be cliarged upon tlie property unless such parties were so brought into the suit at the request or con- sent of the other defendants. 7 L. 0. 127. And so, the plain- tiff, where he causes litigation by setting up an unfounded claim, will be charged with the additional costs occasioned thereby. 1 Sand. Ch. R. 40. If an actual partition of the premises is ordered, the aggregate amount of the costs of the several parties, is to be apportioned and charged upon the parties to the proceedings, according to their respective rights and interest in the premises ; and the parties whose taxed bills exceed their ratable proportions of the whole costs, are entitled to execution against those whose taxed bills are less. See 7 Paige., 204. (a) If the plaintiffs are non -suited, or suffer a discontinuance, or a verdict shall pass against them, or judgment shall be rendered against them on demurrer, they must pay costs, to be recovered and collected as in personal actions. 2 Rev. Stat. 329, sec. 73. Where the premises are sold, the costs and expenses of the proceedings are to be deducted from the proceeds of any sale made by the commissioners ; and must be by them, in the first instance, paid to the plaintiffs, or their attorney. Ih. 327, sec. 62. It is also further provided by statute that on an appeal from the order or judgment of the court, the court may direct the costs to be paid by either of the parties, or by any one or more defen- dant or plaintiff, to his co-defendant or co-plaintiff. Ih ; and see 2 Rev. Stat. 329, sec. 78. And the costs may be allowed or not, in the discretion of the court. Code, §§ 306, 448 ; 16 How. 60. (a) See this case, also, for form of judgment with respect to the costs of guardians ad litem of infants, where an actual partition is adjudged. 160 PABTITION. [CH. XX. And they are regulated by the Code of Procedure, the same as in other equity actions. Code, §§ 303 to 322. In addition to the allowances provided by § 807, the plaintiff, upon the recovery of judgment in an action for partition, is en- titled to the following percentage to be estimated upon the value of the property of which partition is sought, viz ; For any amount not exceeding two hundred dollars, the sum of ten per cent. ; for any additional amount not exceeding four hundred dollars, an additional sum of live per cent.; and for any additional amount not exceeding one thousand dollars, an additional sum of two per cent. Ih. §§ 308, 309. And the court may also, in its discretion, make a further allowance to any party not exceeding iive per cent. Tb. § 309. The value of the property is to be determined by the court, or by the commissioners, in case of actual partition. li. §§ 308, 309.' If the action shall be settled before judgment therein, like allowances upon the amount paid or secured upon such settle ment, at one half the rates above specified. Ih. § 308. In respect to the fees and expenses of commissioners and sur- veyors, see ante, p. 133. Appeals.} It is provided by the Eevised Statutes, that upon any final judgment rendered that partition be made, or confirm ing partition, or for tlie sale of any premises, or confirming such sale, a writ of error may be brought by any of the parties to such judgment, jointly or separately, and without the consent of any co-plaintiif or co-defendant, within the same time and under the like restrictions as in cases of personal actions. 2 Rev. Stat. 329, sec. 75. And that it shall not be necessary for a plaintiff or de- fendant bringing such writ of error to summon and sever any co-plaintiff or co-defendant. II. sec. 76. And, also, that error may be assigned upon such writ for any erroneous adjudication upon the rights of any of the respective defendants or respective plaintiffs, and that the court will direct the person whose interest is affected by the adjudication, to plead to such assignment of errors, and to appear in such cause as a defendant in errror. li. sec. 11. But the remedy now, to review the judgment or order of the court, is by appeal, the same as in other actions, the practice in CH. XX.] PARTITION. 161 which is regulated by the Code of Procedure. Code, %% 448, 323 to 350. The appeal is placed upon the calendar, and brought on for argument the same as in other actions. Where the plaintiff's rights are not contested, no copies of the pleadings need be fur- nished to the court. Sup. Court Rules, No. 42. But an appeal cannot be taken until after the entry of judg- ment making partition ; and, therefore, an appeal will not lie from an order declaring the rights of the parties, and appointing commissioners to make partition. 2 Selden, 465. The appeal, in such case, should be delayed until final judgment, when both the intermediate order and the judgment will be open for review. Ih. The court, upon the appeal, may give judgment, either of affirmance or reversal, in whole or in part, and as to any or all the parties, with costs to be paid by either of the parties, or by any one or more defendant or plaintiff to his co-defendant or co- plaintiff. 2 Rev. Stat. 329, sec. 78 ; and see Code of Pro. §§ 12, 330. The partition of infants' estates.] With respect to the estates of infants, the statute provides, that whenever it shall appear satisfactorily, by due proof, or on the report of a referee, to the Supreme Court, that any infant holds real estate in joint ten- ancy, or in common, or in any other manner, which would authorize his being made a party to a suit in partition, and that the interest of such infant, or of any other person concerned therein, requires that partition of such estate should be made, such court may direct and authorize the general guardian of such infant to agree to a division thereof, or to a sale thereof, or of such part of the said estate as in the opinion of the court shall be incapable of partition, or, as shall be most for the interest of the infant to be sold. 2 Rev. Stat. 330, sea. 86, as amended by sec. 46, of ch. 320, of Laws of 1830 ; Laws of 1847,^. 323, sec. 16 ; II. 344, sec. 77. The object of the statute was not to authorize the guardian of an infant tenant in common to sell to his co-tenants ; but only to join with them in a sale of the joint interest in the property. 2 Paige, 566. If a co-tenant wishes to purchase the infant's share, at its fair value, the general guardian should apply for liberty to sell, under the article of the Revised Statutes {antOy Vol. n.— 11 162 PARTITION. [CH. XX. Chapter xiii. of this work), relative to the sale and disposition of infants' estates. Ih. And it seems, the court will not authorize the guardian to join in a sale, except on the report of a referee, that such sale is necessary and proper, Ih. The guardian must give sufficient security ibr the faithful performance of his trust on such sale, and to bring the proceeds of the infant's share into court, or to invest and account for the same as the court shall direct. Ih. ; and see Sup. Court Bvles, J^'oB. 62 and 70. The guardian is required to report to the court, on oath, the partition or sale so made by him ; and if the same is approved and confirmed by the court, an order must be entered authoriz- ing the guardian to execute conveyances of the right of the infant to such part of the estate as shall have been sold, to the purchaser thereof, or to execute releases of the right of such in- fant to such part of the estate as in the division falls to the shares of the other joint tenants, or tenants in common, 2 Bev. Stat. 331, sec. 87. The conveyance should be by the guardian ill the name of the infant : as " A. B., an infant, by C. D., his general guardian," &c., and should be subscribed by the guar- dian in the same manner. 1 Kern. 52. And such deeds will be as valid and effectual to convey the share of the infant as if the same had been executed by him after arriving at full age. 2 Rev. Stat. 331, sec. 88. In case of a sale of any part of the estate, the infant is to be deemed a ward of the court ; and such order shall be taken as the court may direct, for securing, investing, and applying the proceeds of the sale, and requiring security from the guardian for that purpose. lb. If the infant is a married woman, the court may, upon peti- tion, appoint her husband as her guardian ; and to every husband so appointed, the above provisions of the statute will apply. Ih. sec. 97, added by sec. 47 of chap. 320 of Laws of 1830. Partition of estates of lunatics, c&c] Whenever it is made (0 appear to the Supreme Court, on the application of any com- mittee of any idiot, lunatic, or person mentally incapable of managing his affairs, holding any real estate in joint tenancy, or in common, or in any other manner, to authorize his being made CH. XX.J PARTITION. 168 party to a suit in partition, that the interest of such idiot, lunatic, or other person as aforesaid, or of any of the parties interested in the estate, requires a partition thereof, a reference will be ordered to some suitable person, to inquire into and report upon the cir- cumstances. 2 Rev. Stat. 331, sec. 89 ; Laws of, 1847, p. 323, sec. 16 ; Ih. 344, sec. 11; and see ante, p. 48. Upon the coming in of the 1-eport of the referee, and a hear- ing and examination of the matter, the court may authorize the committee to agree to a partition of such estate, and to exe- cute releases of the right of such lunatic, idiot, or other person, as aforesaid, in and to the share of such estate falling to the other joint tenants, or tenants in common. 2 Bev. Stat. 331, sec. 90. Such releases will be as valid and effectual to convey the share of such lunatic, idiot, or other person of unsound mind, as if the same had been executed by them respectively when of sound mind and understanding, and for a valuable consideration. n. sec. 91. Partition when State is interested.'] Where any lands or tenements shall be held by the people of this State, and by any individuals, as tenants in common, proceedings for the partition thereof may be had against the people of this State, in the Supreme Court, in the same manner as against individuals, and the like orders, decrees, and judgments shall be had therein. 2 Rev. Stat. 331, sec. 92. The summons and complaint, and all notices required to be served in other cases, must be served on the attorney general, who is required to appear in behalf of the State, and attend to its interests. Ih. sec. 93. And it is the duty of the attorney general, whenever directed by the commissioners of the Land Office, to cause partition to be made of such tracts of land as are held in joint tenancy, or tenancy in common, in which the people of this State are inter- ested ; and for that purpose he is authorized to do all such acts as any joint tenant, or tenant in common, may do by law. 1 Rev. Stat. 207, sec. 65. Provision as to claims harred iy statute of limitations.] The authority given by the statute to proceed for the partition 164 PARTITION. [CH. XX. of real estate, will not authorize the revival or prosecution of any claims to lands which would or might be otherwise barred by any statute of limitations, or by the acquiescen'tee of any party having any such claim. 2 Rev. Stat. 332, sec. 94. CHAPTER XXI. PKOCEEDDSrGS TO OBTAESr LEAVE TO PEOSECUTE AS A POOK PEESON. This proceeding is authorized by title first, of chapter eighth, of part third of the ifevised Statutes, entitled " Of the bringing and maintaining of suits by poor persons." 2 Bev. Stat. 444. Applications under the statute are not to be encouraged, 1 Paige, 39 ; Id. 588 ; and the statute will be strictly construed as against the applicant. 2 Hill, 412. The statute applies to actions where the relief claimed is either of a legal or equitable nature. 2 Bev. Stat. 445, sec, 6 ; Oode, sec. 69. Who Tnay petition, and in what cases.'] The statute proi'ihea, that every poor person, not being of ability tg sue, who shall have a cause of action against any other, {a) may petition the court in which such action is depending, or in which it is intended to be brought, for leave to prosecute as a poor person, and to have counsel and attorneys assigned to conduct his suit. 2 Bev. Stat. 444, sec. 1. The applicant, to be entitled to prosecute va.forina pauperis, must be an object of charity, 1 Paige, 39 ; or at least must not be worth twenty dollars, excepting necessary wearing apparel and furniture for himself and his family, and excepting the subject matter of the action when not in possession thereof. 2 Bev, Stat. 445, sec. 2, post. A party will not be allowed to prosecute a writ of error, as a (a) Whether under the statute a party can be admitted in any case, to defend an action as a poor person, guasref But if so, ho would not at least be excused from the payment of the costs already accrued. 1 Paige, 588. 166 SUITS BY POOR PERSONS. [OH. XXI. poor person, 2 HilZ, 412 ; 2 How. 35 ; nor an appeal. 3 Paige, 273. The statute applies to a married woman, who may be allowed to prosecute as a poor person for damages for injuries to her separate property. 18 How. 466. And so, a married woman may be permitted to institute an action against her husband for a separation as a poor person. But this will not be allowed until the court has ascertained by the report of a referee that she has probable cause for commencing the action. 3 Paige, 387. Although the statute is general, applying to every person not having the ability to sue, yet it seems it is doubtful whether a non-resident of the State wiU be allowed to prosecute as a poor person. 6 Hill, 257 ; and see 1 Buer, 705. The application may be made either before or after the action is commenced. 2 Rev. Stat. 444, sec. 1. Where it was made after the suit had been pending a year, and after it had been re- ferred and noticed for hearing, the application was denied on the ground of delay in making it. 1 Huer, 705, s. c. 12 N. Y. Leg. Ob. 28. If the applicant has already commenced his suit before making the motion to prosecute as a poor person, he should give notice of the motion to the opposite party. 6 Hill, 257; 1 Paige, 39. And where, in such case, an order had been ob- tained without notice, the same was vacated, with costs. 75. What motion is founded upon.] The motion is founded upon petition, which is required to state : 1. The nature of the suit brought, or intended to be brought ; 2. That the applicant is not worth twenty dollars, excepting the wearing apparel and furniture necessary for himself and his family, and excepting the subject- matter of the action, when not in possession thereof The petition must be verified by the applicant's own affidavit, and supported by a certificate of a counsellor of the court, that he has examined the claim, and is of opinion that such poor per- . son has a good cause of action. 2 Rev. Stat. 445, sec. 2. For forms, see A/ppendix, No. 537. If suit, has already been "brought by the applicant, notice of the motion, accompanied with a copy of the petition, should be served upon the opposite party eight days before the term at which the application is to be made ; or an order to show cause CH. XXI.J SUITS BY POOR PERSONS. 167 should be obtained in the usual manner. 6 Hill, 257 ; 1 Paige, 39 ; Sup. Court Rules, No. 39. Application to the court and proceedings thereon.] The court to which the petition is presented, if satisfied of the facts alleged, and that the applicant has a meritorious cause of action, is re- quired by rule to admit him to prosecute as a poor person, and to assign to him counsel, solicitors, attorneys, and all other officers requisite for prosecuting his suit, who shall do their duty therein without taking any reward for the same. 2 Rev. Stat. 445, sec. 3. If order granted, effect thereof.'] The statute provides that every person admitted to sue as a poor person, may prosecute his suit without paying any fees to any officers or ministers of justice ; and shall not be prevented from prosecuting the same, by reason of his being liable for the costs of any former suit brought by him against the same defendant (18 How. 466) ; and if he be non- suited, or a verdict or judgment be given against him, or his bill be dismissed, or a decree be rendered against him, he shall not be liable for any costs in such suit. 2 Rev. Stat. 445, sec. 4. Nor is he liable to costs for not proceeding to trial, pursuant to notice ; nor is he, it seems, liable to costs under any circumstances, until he is dispaupered, 20 Wend. 679 ; though after the order is an- nulled, he will be liable to costs in the same manner as though it had never been made. lb. When order may he annulled^ If the person so prosecuting, be guilty of any improper conduct in the prosecution of his suit, or of any willful or unnecessary delay, the court may, in its dis- cretion, annul the order admitting him to prosecute as a poor person ; and he shall thereafter be deprived of all the privileges conferred by such order, 2 Rev. Stat. 445, sec. 5 ; and will be liable for costs in the same manner as if the order had never been made. 20 Wend. 679. Bringing action.] The action brought or to be brought by the poor person, is to be conducted in all respects in conformity to the Code, the same as actions brought by other persons. Code, § 471. The costs in the action, it seems, are in the discretion of the 168 SUITS BY POOR PERSONS. [CH. XXI. court. 3 Johns. Ch. B. 65. Thus, where the plaintiff sued in forma pauperis, and recovered a legacy against executors, the court gave him only the actual expenses of the action, to be paid out of the assets. Ih. And so the plaintiff will not be allowed costs of overruling an informal plea, if the defence be finally established. 3 Paige, 273. If the plaintiff, however, appeals from the judgment, and succeeds, he will be entitled to the costs of the appeal ; for the reason that he cannot prosecute the appeal in forma pauperis, but must give security as other persons. Ih. If the party pending the action is permitted to prosecute as a poor person, he will not be excused from the payment of the costs already accrued. 1 Paige, 588. He is liable, also, for the costs of any irregular or improper proceedings on his part, lb., citing Tothill, 139. CHAPTER XXII. PROCEEDINGS TO DISCOVEE THE DEATH OF PER- SONS UPON WHOSE LIYES ANY PARTICULAR ESTATE MAY DEPEND. This proceeding is authorized by title eighth, of chapter fifth, of part third of the Revised Statutes, entitled " Proceediugs to discover the death of persons upon whose lives any particular estate may depend." 2 Rev. Stat. 343 ; and see 1 E. L. 104, § 3. How person may iej)roduced.'] It is provided by the statute, that any person entitled to claim any lands or tenements, after the death of any other person having any prior estate in such lands or tenements, may, once a year, apply by p'fetition to the Supreme Court {a) for an order, that the person upon whose life such prior estate depends, be produced and shown, as hereinafter provided, by the guardian, husband, trustee, or party who may have the custody of such other person, or of his estate, or who may be entitled to such custody. 2 JRev. Stat. 343, sec. l.;l JR. L.p. 104, §3. Petition and notice.] The application is founded upon peti- tion duly verified by affidavit, and which must state : 1. The in- terest of the applicant in the lands or tenements described there- in ; 2. That he has cause to believe, and does believe, that the person upon whose life such prior estate? depends, is dead, and that his death is concealed by the party against whom the appli- cation is made. 2 Sev. Stat. 343, sees. 1, 2, 3. For form, see Ajppendix, No. 541. (a) The Supreme Court is substituted in this chapter for the Court of Chancery, and Referee for Master in Chancery, under the authority of the Constitution of 1848, and the judiciary act. Articles vi. amd xiy. of Const, and Laws of 1847, p. 344, § 11. 170 PROCEEDINGS TO DISCOVER [CH. XXn. A copy of the petition is required to be served upon the person against whom the application is intended to be made, with at least fourteen days' notice of the time and place at which the same is intended to be presented. Ih. Order of the court, and service thsrenf.'] If no suflBcient cause be shown to the contrary, the Supreme Court, upon due proof of the service of the petition and notice, will make an order requiring the party against whom the application is made, to produce and show the person upon whose life such estate depends, at such time and place, and to such referee or commis- sioner or commissioners, not exceeding two, as shall be named in such order. 2 Bev. Stat. 344:, sec. 4. For form, see Appendix, ]S"o. 543. A certified copy of the order must be served upon the party against whom the application is made, at least fourteen days before the day specified therein, at which any person shall be required to be produced. Ih. sec. 5. Proceedings hefore the referee or commissioners.] The referee or commissioners are required to attend at the time and place specified in the order, for the purpose of attending to the execution thereof; and power is given to them to take proof, by the examination of witnesses, to be sworn by them, as to the identity of the person upon whose life such estate depends. 2 Hev. Stat. 344, sec. 5. Subpoenas to compel the attendance of witnesses before the referee or commissioners, may be issued and served, in the like manner and with the like efi'ect as in any action pending in the Supreme Court. lb. sec. 6 ; Zaws of 184Y, p. 323. If it appear satisfactorily to the referee or commissioners, on due proof by afiidavit, that the person required to be produced is in prison, or is kept or detained by any other, they may allow a writ of habeas corpus to be issued out of the Supreme Court, to bring the body of such person before them ; which writ shall be served and executed in the same manner as such writs to inquire into the cause of the detention of any person (See Chapter xii. of this work), and all the provisions of law, in rela- tions to obedience to such writ, shall apply to the writ so allowed by such referee or commissioners. 2 Hev. Stat. 344, sec. 7. CH. XXn. DEATH OF PERSONS. 171 If the person shall be produced before the referee or commis- sioners, pursuant to the order of the court, they are required to state the same in their return, and also to state therein, whether they or either of them were personally acquainted with such person, or whether his identity was proved by witnesses examined by them, and shall set forth such proof in their return. If such person shall not be produced before them, they shall so state in their return. Ih. sec. 8. Proceedings if order is complied with.] Upon the filing of the referee's or commissioners' return, if it shall appear that the order has been complied with, the proceedings shall be discharged, and the court shall direct an entry of such return to be made in its minutes ; and shall order the costs of the proceedings to be paid by the applicant. 2 Hev. Stat. 344, sec. 9. When person jpresumed to he dead.] If it shall appear, from the return, that the person upon whose life the estate depends, was not produced before the commissioners, as required by the order, and that due service of such order was made as required by the statute, such person shall thereafter be taken to be dead, {a) and the party entitled after his death, may forthwith, enter upon the said lands or tenements, in the same manner as if such per- son were actually dead. 2 Rev. Stat. 345, sec. 10. In like man- ner, if the person shall not be produced before commissioners residing out of the State, where it is alleged the person is beyond sea, or elsewhere out of the State, he is thereafter presumed to be dead. Ih. sec. 14. Proceedings if person is out of the State.] If it shall be shown to the court, by affidavit on the part of the person against whom any such application shall be made, in any stage of the proceeding, that the person upon whose life such estate depends, is or lately was at some place certain, beyond sea, or elsewhere (a) It is also provided by the Revised Statutes, that if any person upon whose life any estate in lands or tenements shall depend, shall remain beyond sea, or shall absent himself, in this State or elsewhere, for seven years together, such person shall be accounted naturally dead, in any action concerning such lauds or tenements, in which his death shall come in question, unless sufficient proof be made in such case, of the life otsuoh person. 1 Bew. Stat. T49, sr.c. 6. 172 PEOCEEDINGS TO DISCOVEB [CH. Xxn. out of this State, the proceedings sliall cease, unless the party prosecuting such order, shall at his own costs and charges, obtain a commission, to be issued out of the Supreme Court, and to be directed to one or more commissioners, to be appointed for that purpose by the court, residing at such place, to obtain a personal view of the person upon whose life such estate depends. 2 Rev. Stat. 345, sec. 11. If such party shall elect so to send to such place, he shall give notice, in writing, to the party against whom the original appli- cation shall have been made, of the time and place certain at which the commissioners will attend, for the purpose of having such view, as follows : 1. If the place be within any of the United States, or in either of the provinces of Canada, at least two months' notice shall be given. 2. If the place be within either of the "West India Islands, at least three months' notice. 3. For all other places, at least four months' notice. Ih. sec. 12. The commissioners possess the same powers, and are to pro- ceed in like manner, as hereinbefore provided, and the like proceedings are to be had, and with the like effect, upon the coming in of their return. li. sec. 13. And if it shall appear from their return, that the person upon whose life such estate depends, was produced before them, the application shall be discharged, with the like effect as before pro- vided ; but if it shall appear that he was not so produced, he shall thereafter be takento be dead, and the party entitled after his death, may forthwith enter upon the said lands and tenements, in the same manner as if such person were actually dead. II. sec. 14. What the party applied against may show, and order thereon.'] The party against whom any application shall be made, may show by affidavit or otherwise, to the Supreme Court : 1. That the person upon whose life such estate depends, is or was, living, at the time of any return made by any commissioners appointed under the statute. 2. That such party has used his utmost endeavors to procure the person upon whose life such estate depends, to appear before CH. XXn.J DEATH OF PERSONS. 173 such commissioners, according to the exigency of the order bj which they were appointed ; and, 3. That he could not procure or compel such person so to appear. 2 Rev. Stat. 345, sec. 15. If the court is satisfied of the truth of such allegations, it shall cause an entry of such proof to be made in its minutes, and shall thereupon declare that there is no reason to presume the death of the person upon whose life such particular estate shall depend; and all further proceedings on such application shall cease. li. sec. 16. Copy of orders of court to he evidence.] A copy of any entry ■ made in the minutes of the court, pursuant to the provisions of the statute, duly certified, shall be evidence, in all courts withia this State, of the facts therein stated. 2 Rffo. Stat. 346, sec. 17. Provision for costs.] The statute provides, that when pro- vision is not therein otherwise made for the payment of the costs of the proceedings, the same shall be paid by such party as the court shall direct, 2 Rev. Stat. 346, sec. 18; and, when allowed, shall be at the rate allowed for similar services ia civil actions. Laws of 1854, p. 592 ; ante, vol. 1, p. 19. Restoration of estates in certain cflw«s.] Any estate, which shall have been recovered upon the presumption of the death of any person, shall be restored to him who shall have been evicted, if, in any subsequent action, the person presumed to be dead shall be proved to have been living at the time of the commence- ment of such action. 2 Rev. Stat. 346, sec. 19. Remedy of person evicted for rents and profits.] Every ^ person so evicted, his executors or administrators, shall recover, in any action to be brought by him or them, the full profits of the estate during the time he shall have been deprived thereof, and during the lifetime of the person on whose life such estate depended, against such as occupied the same, his or their execu- tors or administrators. 2 Rev. Stat. 346, sec. 20. CHAPTEE XXIII. PEOCEEDmGS BY PEESONS TO CHANGE THEIK NAMES. The first statute giving jurisdiction to the courts of this State to allow persons to change their names, was passed on the 14th of December, 184:Y. Laws of 184Y, p. 632. This statute was subsequently amended by an act passed March 17, 1860, by which the powers of the court were materially enlarged, confining the jurisdiction, however, to the county courts, and to the Court of Common Pleas of the city and county of New York. Laws of 1860, p. 125. Notwithstanding the general jurisdiction of the court, resort is still frequently had to the legislature by persons desiring to change their names, as will be seen by reference to the session laws of the State, In what cases.] The statute authorizes any person residing in this State, whether of full age or not, to apply to the court for an order authorizing such person to assume another name, {a) Laws of 1860, p. 125. ' Formerly, to give the court jurisdiction, it was necessary to show that the applicant would derive a pecuniary benefit from the change of name {Laws of 184:7, p. 633 ; 2 Hilton, 666) ; but this is now unnecessary, under the recent amendment of the statute. Laws of 1860, p. 125. (o) There is no law, it seems, prohibiting a person from assuming another name, if he so desires ; nor is there any penalty or punishment for so doing. And a person may enter into a contract by any name he may choose to assume. All that the law looks to is the identity of the individual, and when that is clearly established, the act will be binding upon him and upon others. 2 Hilton, 566, 575, per Daly, F.J. 176 PROCEEDINGS BY PERSONS [CH. XXm. The applicant, however, must satisfy the court " that there is no reasonable objection" to his assuming another name. Ih. amending § 3 of Laws of 1847, svpra. If the applicant is a minor, he must apply by guardian or next friend. Zaws of 1860,^. 125. Where application to he made.] The statute requires the application to be made to the county court of the county where the applicant resides ; except that, if his residence is in the city and county of New York, he must apply to the Court of Common Pleas of that city. Laws of 1860, p. 125. Petition, and what to contain.] The application is founded upon petition, which must set forth the grounds of the applicar tion, and must be veriiied by the affidavit of the applicant annexed thereto, or indorsed thereon. Laws of 1847, />. 633, §2. It should show that the applicant resided in the county where the application was to be made, and should set forth such facts as would satisfy the court that there was no reasonable objection to the applicant's assuming another name. Laws o/'1860,^. 125. For form, see Appendix, No. 546. Order, and puhlication thereof.] The statute provides that if the court to which the application is made, shall be satisiBed by the petition so verified, or by affidavits presented, that there is no reasonable objection that such person should assume another name, the court shall make an order authorizing such applicant to assume such other name from and after some time, not less than thirty days, to be specified in such order. Laios of 1860, p. 125. For form, see Appendix, No. 547. "Within ten days after such order is granted, the applicant is required to cause a copy thereof to be published in a public newspaper printed in the cotmty in which he shall reside at the time of making the application. Laws of 1847,^. 633, § 4. Papers to he filed and recorded.] The applicant is required, within twenty days from the granting of the order, to cause the petition, affidavit, or affidavits, order, and "an affidavit of the pub- lication of such order to be filed and recorded in the county CH. XXni.J TO CHANGE THETE NAMES. 177 clerk's office of the county in whicli the applicant resides at the time of making the application. Laws of 184:7, p. 633, § 5. When applicant may assume new name.] When the require- ments of the statute are complied with, the applicant shall, from and after the day specified for that purpose in the order of the court, be known by the name which, by such order, he shall be authorized to assume, and by no other. Laws, of 184:7, p. 633, §6. Effect upon legal proceedings suhsequently commenced.'] The statute provides, that if any suit or legal proceeding shall be com- menced by his former name, against any person whose name shall have been changed pursuant to the statute, such suit or proceed- ing shall not be abated, nor any relief or recovery sought thereby, be prevented by such misnomer, but the plaintiff or party insti- tuting such suit or proceeding may amend in respect to the name of the person against whom it shall be commenced, at any time, and without costs. Laws of 1847, p. 633, § 7. Returns to he made iy the cleric to the Secretary of State.] It is the duty of the county clerks for the several counties of the State, except the city and county of New York, and of the clerk of the Court of Common Pleas of that city, annually, in the month of December, to make a return to the office of the Secre- tary of State, of all changes of names of persons made under and by virtue of the statute ; and the names of such persons before and after such changes, as tlie same shall appear in such returns, are required to be published in tabular form with the session laws of each year. Lmws ofl8Q0,p. 125. YOL. IL— 12 CHAPTEE XXIV. PEOCEEDnfGS TO PEOVE WILLS IN A FOEEIGN STATE. This proceeding is authorized by Chapter 329 of the Laws of 1830, and applies to the proof of wills executed according to the laws of this State, as well as the laws of other States. Laws of 1830, f. 388 ; 2 Rev. Stat. 67 ; 23 Neiv York, 406. I. Wells executed AoconDiNe to the Laws of this State. It is provided by statute, that a will duly executed according to the laws of this State, where the witnesses to the same reside without the jurisdiction of this State ; or a duly exemplified or authenticated copy thereof, where the original will is in the pos- session of a court or tribunal of justice in another country or State, whence the same cannot be obtained, may be proved in the Supreme Court, (a) upon a commission to be issued for that pur- pose on application to that court. Laws of 1830, jo. 388 ; 2 Rev. Stat. 67 ; Laws of 1847, i>. 323, § 16. It seems that by a sound construction of the statute, a commis- sion may be issued to prove a will, either of real or personal estate, in any case where, from the absence of the will, or the non-resi- dence of witnesses in this State, it cannot be proved before a (a) But the Supreme Court has not exclusive jurisdiction to taJse proof of a will in a foreign state or country. By the Laws of 1837, p. 537, sec. 77, the surrogate is authorized to issue a commission for the examination of witnesses abroad, in the same manner as courts of record ; and thus, it seems, the surrogate is enabled to take proof of wills out of this State, in all cases, without resorting to the aid of the Supreme Court. 1 Bradf. 76, 79; Wrllaird on Ex. 165; Dayton on Sur. 140, :V >, 182. 180 PROCEEDINGS TO PROVE WILLS [CH. XX IT. surrogate. 2 Paige, 430, per "Walworth, Cli. And it may be issued, also, although all the subscribing witnesses to the will are dead ; though in such case, the proof taken will have no greater effect as evidence, than a will proved before a surrogate without producing any of the subscribing witnesses thereto. Ih. How commission ajoplied for, and who may a,pply.] The commission may be applied for either by petition, or by summons and complaint in the nature -of an action under the Code of Pro- cedure. 2 Eev. Stat. 67, sec. 64 ; Code, % 69. The former method, however, is the one most usually adopted in practice. 2 Barl. Ch. Pr. 315. The commission can be issued only on the application of some person interested in the establishment of the will. Laws of 1830, p. 388 ; 2 Eev. Stat. 6Y, sec. 64 ; 6 Paige, 183. Petition, or complaint.'] The statute does not prescribe the form of the petition or complaint. It has been decided, however, that where the object of the proceeding is to tate proof of a will of real estate, the petition should show that the decedent left real property in this State, in which the applicant for the commission has some legal or beneficial interest under the will ; and either positively, or upon information and belief, that the instrument sought to be proved, is the last will of the decedent, and was executed in due form of law to pass real property in this State. It should show, also, who are the legal heirs, to whom by the laws of the State such real property would have descended if the decedent had died intestate, and the names and residences of such heirs, so far as the same can be ascertained, to enable the court to determine what notice should be given to them of the proceedings to prove the will ; and if the decedent left no heir capable of inheriting lands in this State, that fact should be stated. 6 Paige, 183. If the application is to prove a will of personal property, the petition should show that the decedent at his death left assets in this State, or that assets have come into this State since his death. It should state, also, the necessary facts to show what surrogate has jurisdiction to grant letters testamentary, or of administra- tion ; so that the court may be enabled, after the will is proved, to send the mandate to the proper surrogate for that purpose. Ih. CH. XIIV.] IN A FOREIGN STATE. 181 And if the instrument is to be proved as a will both of real and personal estate, or as a will of personal estate merely, if the decedent at tlie time of his death was not domiciled in this State, or if the will was executed out of the State, the domicil of the decedent at the time of his death, should be stated ; also the names and residences of his next of kin, or of those who, in case of intestacy, would have been entitled to succeed to his personal estate according to the law of his domicil, so far as the same can be ascertained. Ih. The prayer of the petition should be, that an order may be granted, directing the will to be proved in the Supreme Court upon a commission to be issued for that purpose, under the seal of the court, directed to certain cominissioners named therein, to prove such will by the testimony of the subscribing witnesses (if they are living), upon written interrogatories to be annexed to the petition. 2 Barb. Ch. Pr. 316. And it is usual to annex to the petition a copy of the will, and of the interrogatories upon which the witnesses are to be examined. Ih. Notice to parties interested.'] The statute requires such notice to be given to the parties interested to oppose the validity of the will as the court shall direct ; or such notice may be dispensed with, where, from the circumstances of the case, it shall be deemed unnecessary. Laws of 1S30, p. 388 ; 2 Eev. Stat. 67, sec. 64. It seems, if notice is directed to be given, it should be for the same length of time as is required in proving a will bel'ore a sur- rogate, (2 Rev. Stat. 56) ; 2 Paige, 214. Parties authorized to contest the validity of the will, are en- titled also to reasonable notice of the time and place of executing the commission. Ih. Commission.] If it appears, upon the hearing of the applica- tion, to be a proper case for the exercise of the jurisdiction of the court, and the proceedings have been regular, and notice duly given where it was required, a commission w^ll be directed to be issued according to the prayer of the petition. The commission is similar, in form, to the commission issued in other cases, to examine witnesses residing out of the State, and is to be executed in a similar manner. 2 Barh. Ch. Pr. 316 ; 1 Id. 299, 300; 2 Eec. Stat. 180, 181. 182 PEOCEEDINGS TO PROVE "WII,LS [CH. XXIV. Persons authorized to contest the validity of the will may join in the commission, and may be allowed to name a commissioner on their part ; and they will be entitled, also, to reasonable no- tice of the time and place of executing the commission. 2 Paige, 214. Proceedings on the return of the com mission. '\ If the facts necessary to establish the validity of the will shall appear from the proof taken under such commission, the Supreme Court, upon the return of the commission, will direct the will, or the copy thereof, and the proofs or examinations, to be recorded in the office of the clerk of that court. Laws of 1830,^. 388 ; 2 Rev. Stat. 67, sec. 65. Effect of proof and of record^ It is provided by the statute that every will or copy so proved under a commission shall have a certificate of such proof endorsed thereon, signed by the clerk, and attested by the seal of the Supreme Court, and may then be read in evidence without further proof thereof. La^os 0/^1830, p. 388 ; 2 Rev. Stat. 67, sec. 66 ; Laws of 184:7, p. 323, § 16. If the commission issues in a case where all the subscribing witnesses to the will are dead, the proof taken under it will have no greater effect as evidence, than a will proved before a surro- gate without producing any of the subscribing witnesses thereto. 2 Paige, 429. The record, in such a case, will be received in evidence only in connection with other proof, that the lands in controversy and devised by the will, have been held under the same for the space of twenty years. 2 Rev. Stat. 58, sees. 16, 1 8. The statute further directs that every record of a will, or copy made in the clerk's office, in pursuance of the statute, or an exemplification thereof, shall be received in evidence, and shall be as eft'ectual in all cases as the original will would be, if pro- duced and proved, and may in like manner be repelled by con- trary proof. Laws of 1830, p. 389 ; 2 Rev. Stat. 67, sec. 66. When will established as a will of personal estate.] The statute makes the several statutory provisions above recited ap- plicable to wills of personal as well as of real property. And where there are assets of the testator within this State, and due notice shall have been given to the parties interested to oppose the CH. XXIV.J IN A FOREIGN STATE. 183 will, tlie court may by decree establish the same as a wiU of personal estate ; and in such case, it is required to transmit the decree to be recorded in the office of the surrogate having juris- - diction, with directions to the surrogate to issue letters testamen- tary, or of administration with the will annexed thereon, in the same manner as upon wills duly proved before him. Lams of 1830, jp. 389; 2 Rev. Stat. 67, sec. 67. But no will of personal property, made out of this State, by a person not being a citizen of this State, can be admitted to probate under any of the above provisions of the statute, unless such will shall have been executed according to the laws of the State or country in which the same was made. lb. sec. 69 ; 6 Paige, 184. This provision of the statute relates only to the case of a person domiciled out of this State at the time of his death. And accordingly, where a citizen of another State executed his will in such manner as to be a valid bequest of personal property accord- ing to the law of that State, but not of this State, and subsequently established his domicile and was a citizen of and died in this State ; it was held that he died intestate in respect to personal property within our jurisdiction. 23 New York R. 394, 408, reversing 26 Barb. 252, which aff. 3 Bradf. 322. Otherwise, however, it seems, if the person had not been a citizen of this State, though domiciled here. 8 Paige, 446 ; Id. 519 ; 23 New York, 407, ^er Denio, J. ; and see 1 Bradf. 'TO; 3 Id. 105; Id. 169. Proceedings, where to be entered.'] The proceedings under the statute were formerly required to be entered in the office of the register of the Court of Chancery at Albany ; 2 Paige, 429 ; 2 Rev. Stat. 67, sec. 65 ; but that office was abolished by the Con- stitution of 1846 ; and by the judiciary act the papers must now be filed in the clerk's office of the county in which the defendants in the proceeding, or some of them, reside ; or if they all reside out of this State, in the clerk's office of any other county. laws of 1847, p. 333, § 50. And the court may direct the papers to be transferred to any other clerk's office, in its discretion. lb. II. Wills exbcutbd AccoRDiua to the Laws of other States. The statute provides that wills of personal estate, duly exe- cuted by persons residing out of this State, according to the laws 184 PEOCEEDINGS TO PROVE WILLS [CH. XXIV. of the State or country in which the same were made, may be proved under a commission to be issued by the Supreme Court ; and when so proved, may be established and transmitted to the surrogate having jurisdiction, with directions to the surrogate to issue letters testamentary or of administration with the will annexed thereon, in the same manner as upon wills duly proFed before him. Laws o/1830, -p. 389 ; 2 Rav. Stat. 67, sees. 67, 68. And where a will, duly executed by a person residing out of this State, according to the laws of the State or country in which the same was made, shall have been duly admitted to probate in such State and country, letters testamentary or of administration, with the will annexed, may also be issued thereon, by the surro- gate having jurisdiction, upon tlie production of a duly exempli- fied or authenticated copy of such will, under the seal of the court in which the same shall have been proved. Ih. The statute also provides, that no will of personal estate, made out of this State, by a person not being a citizen of this State, shall be admitted to probate under the statute, uhless such will shall have been executed according to the laws of the State or country in which the same was made. Laws of 1830, p. 389 ; 2 Rev. Stat. 67, sec. 69, supra. But this prohibition of the statute relates only to the case of a person domiciled out of this State, at the time of his death. And, accordingly, where a citizen of another State executed a will of personal estate accojding to the laws of that State, but not of this State, and subsequently became a citizen of this State, and domiciled here, and died in this State, — it was held that he died intestate in respect to personal property within our jurisdiction. 23 New York, 394, 408, supra. It would have been otherwise, however, it seems, if such person had not been a citizen of this State, though domiciled here at the time of his death. 8Pa«V^, 446; /d 519; 23 New York, 407, per Denio, J. ; and see 1 Bradf. 70; 2 Id. 105; Id. 169. In respect to the manner in which the general law of a foreign State or country is to be made known to the court, in order to enable it to test the validity of the will proposed to be proved, it has been held that where it does not appear that such law exists as statute or written law, and of which an authenticated copy of the record could be produced, it may be proved by parol. S Paige, 446, supra. CH. XXIV.] IN A rOKEIGN STATE. 185 Tte application is founded upon petition, or complaint ; which should show the domicile of the decedent at the time of his death ; also the names and residences of his next of kin, or of those who, in case of intestacy, would have been entitled to succeed to his personal estate, according to the law of his domicile, so far as the same can be ascertained. And if the will was executed in another State or country by a decedent who was not a citizen and inhabitant of this State, the petition should show, also, that the instrument propounded as a will was duly executed, so as to make a valid testamentary disposition of the decedent's personal pro- perty, according to the law of the place where he was domiciled and where such will was made. 6 Paige, 183. For further on the subject of the form of the petition, see ante, under the head of "Petition or complaint," the proceedings to prove a will executed according to the laws of another State being similar to those to prove a will executed according to the laws of this State. The commisison, also, is similar in form, and is to be applied for and executed in the same manner as the commission in the other case. In like manner, the papers must be filed and entered in the office of the county clerk, the same as in proceeding to prove a will executed according to the laws of this State. See ante, f. 183. CHAPTER XXV. PROCEEDmGS BY ACTION TO RECOVER POSSES- SION OF DEMISED PREMISES FOR NON-PAY- MENT OF RENT. If a tenant fails to pay rent according to the terms of his lease, the landlord may proceed to recover possession of the demised premises by action. The remedy by action, however, is not allowed, except where a right of re-entry is expressly stipulated for between the parties to the lease. 11 Johns. 163 ; 2 Corns. Ml ; 12 Barb. 120. Formerly, the landlord's mode of proceeding varied, accord- ing as there was, or was not, a sufficient distress upon tlie demised premises to answer the amount of rent due. If there was a suffi- cient distress, the proceeding was required to be at the common law ; if not, it might be under the statute. 7 T. R. 117 ; 2 Arch. Pr. 56. Both of these remedies still exist, though, as we shall see, without reference to a sufficiency of distress upon the prem- ises, having been fully recognized by the Court of Appeals in Yan Rensselaer v. Jewett, 2 Corns. 141 ; and see 9 Barl. 303 ; 27 Id. 104 ; 3 Kern. 299. The grantor's interest, in a convej'ance in fee, reserving rent, with a right of re-entry, is assignable, and passes to each subse- quent assignee of the land, to be enforced by entry for non-pay- ment of rent, or other forfeiture. 27 Barb. 104; aff. 19 Neio York, 100. 1. Proceedings at the common law.'] Before commencing the action, and before the forfeiture can be incurred at the com- mon law, a demand must have been made of the rent ; except, however, where by the terms of the lease, a re-entry is authorized 188 ACTION TO KECOVEB LAND [CH. XXV. for a default in the payment of rent without a demand of it. 2 Corns. 147 ; and see 12 Barh. 120. In cases where a demand has not been waived, great strict- ness is required ; the landlord must make an actual demand of the exact amount of rent due, on the very day it becomes due, at a convenient time before sunset, and at the particular place where it is made payable, or if no place be specified in the lease, then at the most notorious place on the premises demised. And the demand must be made in fact, and so aveiTed in pleading, although there should be no person on the land ready to pay it. 2 Arch. Pr. 56 ; 2 Corns. 141 ; 17 Johns. 71. If the rent be not paid when thus demanded, the tenant for- feits his term, and the landlord may re-enter for the forfeiture, that is, he may bring an action to recover the possession of the premises. 1 Vent. 248 ; 2 Ld. Raym. 750.; 1 Saik. 258 ; 1 Saund. 287, 319 ; 3 Burr. 1896. And though a landlord may generally re-enter for non-pay- ment of rent without showing that there was no jiistress, by making a strict demand, yet this right may be qualified by the terms of the lease so as to depend upon the absence of a distress at the time the rent becomes due. 5 Denio, 121. Where the premises demised are held in separate parcels by different persons under the lessee or grantee, and each is sued separ rately, the demand of rent, where the re-entry is at the common law, must be for all that is due upon the whole premises included in the demise, and not for the proportionate part due in respect to the defendant's parcel. H. per McKissock, J. And whei-e the tenant sublet's a part of the premises, the sub-tenant, in order to protect his possession, may pay his rent to the original lessor. 3 Selden, 523. The mode of proceeding in the action is the same as in ordi- nary actions. But the proceeding, at the common law, is seldom adopted in practice, on account of the great nicety to be observed in the pre- vious demand of the rent, and for the reason, also, that the tenant may obtain an injunction and stay the proceedings upon payment of the rent in arrear. 2 Arch. Pr. 57. 2. Proceedings hy statute.] The statute provides, that when- ever any half-year's rent, or more, shall be in arrear from any CH. XXV.] FOE NON-PAYMENT OF RENT. 189 tenant to liis landlord, and no sufficient distress can be found on the premises to satisfy the rent, due, if the landlord has a subsist- ing right by law to re-enter for the non-payment of such rent, he may bring an action of ejectment for the recovery of the posses- sion of the demised premises j and the service of the declaration therein shall be deemed, and stand instead of, a demand of the rent in arrear, and of a re-entry on the demised premises. 2 Rev. Stat. 505, sec. 30 ; 3 Benio, 334. The remedy under the statute is not confined to cases of rent service ; but it is applicable to all cases of non-payment of rent, where there is a right to re-enter at common law. 19 New TorJi-, 100. Where the lease contains no clause authorizing re-entry for the non-payment of rent, the landlord cannot maintain ejectment under the statute. 11 John. Barb. 254. It is in the discretion of the attorney-general to bring an action against a person alleged to have usurped a public office ; and the courts wiU not control him in the exercise of that dis- cretion, nor review his decision upon an application made to him to commence such action. 3 Abb. 131, s. c. 22 Barb. 114. 4. Actions to vacate letters patent.'] An action may be brought by the attorney-general, in the name of the people of this state, for the purpose of vacating or annulling letters patent granted by the people of this State, in the following cases : 1. When he shall have reason to believe that such letters patent were obtained by means of some fraudulent suggestion or concealment of a material fact, made by the person to whom the same were issued or made, or with his consent or knowledge ; or, 2. When he shall have reason to believe that such letters patent were issued through mistake, or in ignorance of a mate- rial fact ; or, 3. When he shall have reason to believe that the patentee, or those claiming under him, have done or omitted an act, in violation of the terms and conditions on which the letters patent were granted, or have by any other means forfeited the interest acquired under the same. Code, § 433 ; and see 2 Rev. Stat. 3Y8, sec. 12. The statute is limited to letters patent granted by the people of this State ; and does not extend to letters granted by the king, prior to the revolution. 10 Barb. 120 ; and see 5 Seld. 318. n. Pbooeedinss m the Action. Parties to the action.] When an action is brought by the attorney-general, on the relation or information of a person hav- 200 QUO WAEEANTO. [CH. XXVI. ing an interest in the question, the name of such person is required to be joined with the people as plaintiff. Code, § 434. Thus, where an action is brought in the name of the people, on the relation of an individual, to try the right to an office, the name of the relator should be joined with the people as a party plaintiff. 2 Kern. 433 ; 23 Barb. 304. But to entitle the rela- tor to be made a party, in suoh ease, the complaint should state facts showing that he is entitled to the office from which the defendant is sought to be ousted. 2 Kern. 433. An omission to join the relator as a party may be cured by amendment, with- out costs. 23 Barb. 304. If an action is brought on the relation of a person having an interest in the question, the attorney-general maj' require, as a condition for bringing such action, that satisfactory security shall be given to indemnify the people of the State against the costs and expenses to be incurred thereby. Code., % 434, as - amended Laws of 1866, ch. 824. Where several persons claim to be entitled to the same office or franchise, all of them may be joined together as defendants in one action, in order to try their respective rights to such office or franchise. Code, § 440 ; 2 Eev. Stat. 584, sec. 46. If the proceeding is against an incorporated company, seek- ing to deprive it of its franchises on the ground of forfeiture by non-user or otherwise, the action is properly brought against the company in its corporate name. 6 Cowen, 217. Summaries and complaint.] The summons is in the same form as in ordinary actions where the plaintiff applies to the court for the relief demanded in the complaint. Code, § 129, sub. 2 ; 75. § 428. The complaint, also, is to be prepared in conformity to the Code ; and should contain a statement of the facts constituting the plaintiff's cause of action, and a demand of the relief to which he believes himself entitled. lb. § 142. If the action is brought against a person for usurping an office, the attorney-general, in addition to the statement of the cause of action, should also set forth in the complaint the name of the person rightfully entitled to the office, with a state- ment of the facts showing his right thereto. lb. sec. 435 ; 3 Kern. 433. CH. XSVI.] QUO WARRANTO. 201 When defendant may he arrested and held to bail.'] It is provided by the Code that whenever an action shall be brought against a person for usurping an office, the attorney-general, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto ; and in such case, upon proof by affidavit tliat the defendant has received fees or emoluments belonging to the office, and by means of his usurpa- tion thereof, an order may be granted by a judge of the Supreme Court, for the arrest of the defendant, and holding him to bail ; and thereupon he is required to be arrested and held to bail, in the manner and with the same eifect, and subject to the same rights and liabilities as in other civil actions where the defendant is subject to arrest. Code, % 435 ; 2 Rev. Stat. 582, sec. 30. Trial, and proceedings thereon.] If an issue of fact is joined upon the pleadings, the cause should be placed upon the calendar for trial the same as in other actions. The place of trial may properly be laid in any county of the State, the people being the party plaintiifs, their residence ex- tends to every county. 6 Hom. 448. In an action to try the right to an office, it is competent to look beyond the canvass for the purpose of giving eifect to the ballot. Thus, where justices of the peace of a town had made an appointment of supervisor, supposing there had been a failure to elect one at the preceding town meeting, and on the trial of an information in the nature of a quo warranto against the person so appointed, it appeared that the presiding officers of the town meeting had declared at the close of their canvass that there was a tie vote between the two candidates ; it was held that it was proper to prove on the trial that a vote had been given, intended for the relator, vin which only the initial letters of his name were inserted, and which if allowed would have elected him. 5 Denio, 409. So, in such a case, the parties interested may go back of the ballot-box, and inquire into the legal qualifications of the voters voting at the election, and if it appears that such voters were disqualified for any reason, their votes will be discarded where it will change the result of the election. 25 How. 495; 30 Barh. 589. And the court will receive hearsay evidence 202 QUO WARRANTO. [CH. XXVI. stowing sucli disqualification, as well as the oath of the voter himself. Id. ibid. So, the relator may show that in the return of the canvassers of one of the towns of the county, a mistake had occurred in omitting to state the number of votes given for each candidate ; and such proof being given, whereby it appeared that the relator and not the defendant had received the greatest number of votes; it was held that the relator was duly elected; and this, too, although the other candidate held the certificate of the county canvassers showing his election to the office. 20 Wend. 12. Upon the trial of the action, the onus prohandi lies upon the defendant, who is required to prove his title to the office. The mere right to the office is tried, and not the use under color of right, which would be sufficient, ordinarily, to establish the right of the incumbent when collaterally questioned; and the defendant must rely upon the strength of his own title. 30 Barb. 591, ^erW. E. Allen, J. Judgment in the action.] In such cases the judgment may be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled ; or it may be rendered only upon the right of the defendant, as justice may require. Code, § 436 ; 2 Bev. Stat. 582, sec. 31. If the action is in the nature of a quo warranto, and brought against an alleged intruder upon a public office, the judgment of the court, if for the plaintiff, can only be a judgment of ouster, and for costs. And if the plaintiff claims damages to recover the fees collected by the defendant, he must assert sucli claim in a separate action to be brought for that purpose. 3 Abb. 233. The court, in determining the claims of an individual to an office, may determine, also, the existence of the office itself The question, therefore, whether a town has been legally erected may be tested in an action in the nature of a quo warranto, against one claiming to exercise the office of supervisor of such town. 24 JS^ew YotTc, 86 ; and see 25 Barb. 254. The court is authorized, as we have seen, to render judgment upon the relator's right, or to omit to do so, as justice may require; and where the facts upon which the relator's right depended were obscurely stated, the court declined to render such judgment — CH. XXV].] QUO WARRANTO. 203 leaving the question to be settled by a direct proceeding. 1 Benio, 389. The court will proceed and render judgment notwithstanding that the office has expired at the time when judgment on the right of the parties comes to be pronounced ; this, for the reason, that the relators, if successful, are entitled to the costs of the action, 8 Wend. 396. The statute farther provides, that when a defendant, whether a natural person or a corporation, against whom the action shall have been brought, shall be adjudged guilty of usurping or intruding into, or unlawfully holding or exercising any office, franchise, or privilege, judgment shall be rendered that such defendant be excluded from such office, franchise, or privilege, and also that the plaintiff recover costs against such defendant. The court may, also, in its discretion, fine such defendant a sum, not exceeding two thousand dollars, which fine, when collected, is required to be paid into the treasury of the State. Code, § 441. If it is adjudged that a corporation against which an action is brought pursuant to the statute, has, by neglect, abuse, or sur- render, forfeited its corporate rights, privileges and franchises, judgment will be rendered that the corporation be excluded from such corporate rights, privileges and franchises, and that the cor- poration be dissolved. Code, § 442. Proceedings if judgment is rendered in favor of party claim- vng an office^ If judgment is rendered upon the right of the person alleged to be entitled, and the same is in favor of such person, he will be entitled, after taking the oath of office, and executing such official bond as may be required by law, to take upon himself the execution of the office. Code, § 437. He becomes, in such a case, upon taking the official oath, and giving bonds eo instanti, invested with the office. 6 Ahi. 220 ; Y Saw. 282. And it is his- duty, immediately upon being invested with the office, to demand of the defendant in the action all the books and papers in his custody, or within his power, belonging to the office from which he has been excluded. Code, § 437. If the defend- ant refuses or neglects to deliver over such books or papers, pur- suant to the demand, he will be deemed guilty of a misdemeanor, and the same proceedings may be had, and with the same effect, 204 QUO WAEBANTO. [CH. XXVI. to compel the delivery of such books and papers as are prescribed in article five, title six, chapter five, of the first part of the Re- vised Statutes, Code, § 438 ; 2 Rev. Stat. 582, sees. 32, 33 ; in respect to which see post, Section ii. of this chapter, where the practice is considered at large. If judgment is rendered upon the right of the person so alleged to be entitled, in favor of such person, he may recover, by action, the damages which he shall have sustained by reason of the usurpation by the defendant of the office from which such defendant has been excluded. Code, § 439. Thus, if the plain- tiff claims damages against the defendant for the fees collected by him while holding the office from which he has been excluded, he must assert sucli claim in a separate action, to be brought by him for that purpose; and he cannot recover such damages in the action in the nature of a quo warranto, to determine the right to the office. 3 AU. 233. Costs of the action, and how collected.'] The defeated party is liable to the other for the costs of the action, as well as for an extra allowance. 4 Seld. 71 ; 11 Barb. 337. The costs are reg- ulated, and are to be taxed, the same as in other actions. If judgment is rendered against a corporation, or against per- sons claiming to be a corporation, the court may cause the costs therein to be collected by execution against the persons claiming to be a corporation, or by attachment or process against the direct- ors or other officers of such corporation. Code, § 443 ; 2 Rev. Stat. 585, sec. 50 ; 12 Wend. 277. Restraining corporation, and appointment of receiver.] If the judgment is rendered against a corporation, the court has the same power to restrain the corporation, to appoint a receiver of its property and to take an account, and make distribution thereof among its creditors, as are given in article three, title four, chapter eight, of the third part of the Revised Statutes. 2 Rev. Stat. 467 ; and see ante, vol. 1, p. 242 ; Code, § 444. And it is the duty of the attorney-general, immediately after the rendition of the judgment, to institute proceedings for that purpose. Ih. Copy of judgment roll, where to hefiled^ Upon the rendition CH. XXVI.] QUO WARRANTO. 205 of judgment against a corporation, or for the vacating or annul- ling of letters patent, it is the duty of the attorney-general to cause a copy of the judgment roll to be forthwith filed in the office of the Secretary of State. Code, § 415 ; 2 Rev. Stat. 580, sec. 24. Entry of judgment relating to letters patent in the records of the commissioners of land q^ce.] The Secretary of State, upon the filing of a copy of the judgment roll in his office, is required, if the record relates to letters patent, to make an entry in the records of the commissioners of the land office of the substance and effect of such judgment, and of the time when the record thereof was docketed ; and the real property granted by such letters patent may thereafter be disposed of by such commis- sioners in the same manner as if such letters patent had never been issued. Code, § 446 ; 2 Rev. Stat. 580, sec. 25. Actions for forfeiture of property to the people.] Whenever, by the provisions of law, any property, real or personal, shall be forfeited to the people of this State, or to any officer for their use, an action for the recovery of such property, alleging the grounds of the forfeiture, may be brought by the proper officer, in the Supreme Court. Code, § 447. Appeals.] Appeals may be brought by an aggrieved party, the same as in other actions. The action is a cival action, and the decisions of the Supreme Court in it are to be reviewed upon the principles applicable to such actions, and not by those which prevail in criminal pro- ceedings. 4 Seld. 67. 206 PEOCEEDINGS TO COMPEL [CH. XXVI, SECTION n. PROCEEDINGS TO COMPEL THE DBLI'^RT OF BOOKS AND PAPERS BY PUBLIC OFFICERS TO THEIR SUCCESSORS. The proceedings to compel the delivery of books and papers by public officers to their successors are authorized by the fifth article, title six, chapter five, of the first part of the Revised Statutes. 1 Rev. Stat. 124. To authorize this remedy, the applicant's title to the office must be clear and free from reasonable doubt. 6 Hill, 616, 631, note. His title cannot be determined in this proceeding. 2 Barl. S. a 514; 5 Ahl. Y3 ; Ih. 2S2. And if he is not in pos- session of the office, he must first establish his title to the same by action to be brought for that purpose; and must show a regular judgment of ouster in his favor. Y How. 173 ; s. c. 14 Barh. 396 ; 19 How. 323 ; 24 Barb. 588 ; Code, §§ 437. 438. But it is sufficient if the applicant is in possession of the office under color of title, though if both parties claim to be in posses- sion, and it is doubtful which is the actual occupant, the court will require the parties to have the right to the office determined by action before entertaining the proceeding. 24 Barb. 587 ; and see 15 How. 470, s. c. 6 Ahb. 228 ; and see 5 Abb. 74 ; lb. 282. Where, however, an office becomes vacant, and an indi- vidual, with claim and color of title, enters it, and assumes the duties thereof, he will be considered the officer de facto, and in possession of the office. And his forcible removal from the rooms occupied for the transaction of the business of the office, and from the presence of the property pertaining to it, will not affect his legal rights. 24 Barb. 587. When boohs and papers to be delivered to successors.] The statute provides that, whenever any person shall be removed from office, or the term for which he shall have been elected or appointed shall expire, he shall, on demand, deliver over to his CH. xxvl] delivery of books. 207 successor all the books and papers in his custody as such ofBeer or in any way appertaining to his office. 1 Rev. Stat. 12i, § 50. Every person violating the above provision of the statute, will be deemed guilty of a misdemeanor. Ih. Proceedings if not delivered.'] If any person shall refuse or neglect to deliver over to his successor any books or papers, as required by section 50 of the statute, such successor may make complaint thereof to any justice of the Supreme Court, or county judge of the county where the person so refusing shall reside ; and if such officer be satisfied by the oath of the complainant, and such other testimony as shall be offered, that any such books or papers are withheld, he is required to grant an order, direct- ing the person so refusing to show cause before him, within some short and reasonable time, why he should not be compelled to deliver the same. 1 Hev. Stat. 125, sec. 51. At the time so appointed, or at any other time to which the matter may be adjourned, upon due proof being made of the service of such order, the officer is required to proceed to inquire into the circumstances. And if the person charged with with- holding such books or papers shall make affidavit before such officer, that he has truly delivered over to his successor all such books and papers in his custody or appertaining to his office, within his knov\ledge, all further proceedings before such officer shall cease, and the person complained against shall be discharged. lb. sec. 52. Commitment and search warranty If the person com- plained against shall not make affidavit before such officer that he has truly delivered over to his successor, all such books and papers in his custody or appertaining to his office, within his knowledge, and it shall appear that any such books or papers are withheld, the officer, before the proceedings shall be had, shall, by warrant, commit the person so withholding, to the jail of the county, there to remain until he shall deliver such books and papers, or be otherwise discharged according to law. 1 Reo. Stat. 125, sec. 53. Thus, where a person appointed to an office under a statute which provided that he should hold it only until the sense of the Governor and Senate should be declared, persisted in holding tlir 208 PEOCEEDINGS TO COMPEL [CH. XXVI. office after the Governor and Senate liad appointed a successor, who had a clear right to the office, and the incumbent refused to deliver to his successor the books and' papers appertaining to the office ; it was held that it was a proper case for the issuing of a warrant to commit the incumbent to jail until he should sur- render them. 2 Barb. 8. 0. 513. In the case stated in section 53, above mentioned, if required by the complainant, the officer will also issue his warrant, directed to any sheriff or constable, commanding them, in the day time, to search such places as shall be designated in the warrant, for such books and papers as belonged to the officer so removed, or whose terra of office expired, in his official capacity, and which apper- tained to such office, and seize and bring them before the officer issuing the warrant. 1 Rev. Stat. 125, sec. 54. And upon any books and papers being brought before the officer, by virtue of such warrant, he is required to inquiTe and examine whether the same appertain to the office, from which the person so refusing to deliver, was removed, or of which the term expired, and to cause the same to be delivered to the complainant. Ih. sec. 55. The issuing of the warrant after the officer has decided that the applicant is entitled to the books and papers, is a ministerial and not a judicial act. 34 Barb. 636, s. c. 26 Id. 430. The warrant should specify with reasonable precision, the books and papers which the party is charged with having in his possession ; and the words, " tlie books and papers appertaining to the Street Commissioners' Department " are, it seems, an insufficient description of the books and papers to be delivered ; and a party cannot be held, nor a search made, on a warrant containing no more precise description. 5 Abb. 282, 293, 315. Proceedings when officer dies.] If any person appointed or elected to any office, shall die, or his office shall in any way become vacant, and any books or papers belonging or appertain- ing to such office shall come to the hands of any person, the suc- cessor to such office may, in like manner, as hereinbefore pre- scribed, demand such books or papers, from the person having the same in his possession ; and on the same being withheld, an order may be obtained, and the person charged may, in like man- ner, make oath of the delivery of all such books and papers that ever came to his possession ; and in case of omission to make [CH. XXVI. DELIVERY OF BOOKS. 209 such oath, and to deliver up the books and papers so demanded, such person may be committed to jail, and a search warrant may be issued, and the property seized by virtue thereof may be delivered to the complainant, as hereinbefore prescribed. 1 Hev. Stat. 125, sec. 56. The above section, it seems, is an independent provision, in- tended to apply to cases of third persons who might come into the possession of books and papers belonging to a public office, and to ealses not otherwise provided for. (a) 2Y How. 154, per Miller, J. Certiorari or appeal staying proceedings.] The decision of the officer may be reviewed in the Supreme Court by certiorari. 5 Ahh. 182, s. c. 24 Bari. 636; 26 Id. 429; 5 Alb. 194, s. c. 26 Bark 437; 6 Ahk 228, s. c. 15 How. 470 ; or by appeal under the act of 1854. Laws ofl^?>^,p. 592, ante, p. 19. The certiorari — common law — stays the proceedings of the officer. And if it is served after the decision and before the issuing of the warrants, the proceedings of the officer are suspended at that point. 5 Abb. 182, and other cases supra. An appeal, however, does not stay the proceedings unless the court, or one of the justices thereof, so order, which order may be upon such terms, as to security or otherwise, as may be just ; such security not to exceed the amouht required on an appeal to the Court of Appeals; Laws of 1854, p. 592, § 1, ante, p. 19. Where an action has been brought to determine the right to an office, and judgment of ouster rendered, and an appeal taken from such judgment, such appeal will not operate to stay the proceedings before the officer on the application to compel the delivery of the books. 7 How. 282. (a) See, also, 1 Bev. Stat. 358, seas. 5 to 9, containing special provisions for the delivery of books, papers and records, belonging to the office of supervisor, town clerk, commissioners of highways, commissioners of common schools, and overseers of the poor, of any town. Vol. n.— 14 CHAPTER XXVII. PEOCEEDINGS TO ACQUIRE TITLE TO EEAL ESTATE FOE EAILEOAD PUEPOSES. The first general law authorizing the incorporation of rail- road companies, was passed in 1848. Laws of 1848, p. 221. That act did not give to the companies formed under it, the right to acquire title to real estate, except in those cases where such right was acquired by voluntary gift or purchase by the corpora- tion. It did provide, however, that when the legislature should first declare the public utility of a proposed road, the corporation might thereupon enter upon, take possession of, and use such real estate and property as would be required for the construc- tion and maintenance of their road, and the convenient accom- modations of the same, making compensation in the manner pro- vided by the statute, for all such real estate and property. Ih. § 20. And thus the law continued for two years, when it was repealed, and the act of April 2d, 1850, substituted in its place. Lawsof\%Z<:),p. 211. By the last-mentioned act, the restriction upon the right of a company, duly organized under the statute, to acquire title to real estate, where the company was unable to agree for the pur- chase of tlie same, was removed, and railroad corporations there- after, in such cases, were authorized to acquire title to real estate in the manner prescribed by the statute. Ih. 215, sec. 13. And that act, with the amendments and additions since made to it {Laws of I'&ol, p- 20; 1853, p. 79 ; 1854, p. 609; 1857,^. 94; Oen. Acts, oh. 44:4: ; 1862, jO. 811 ; 1864,;;. 1335), now constitutes the general railroad law of the State. The right of the legislature to grant to railroad corporations the power to appropriate private property necessary for their use, 212 PEOCEEDINGS TO ACQUIRE LANDS [CH. XXVII. on making compensation for the same, is well settled by author- ity. 1 Seld. 439 ; 5 Id. 100 ; 6 Id. 328 ; 42 Barl. 119 ; 39 Id. 494 ; 18 Wend. 9 ; 3 Paige, 45. And such power may be granted by a general act providing for the creation of an indefi- nite number of corporations, as well as by a special act organiz- ing a particular corporation. 5 Seld^ 100, 110 ; 23 Pick. 360. But the power being in derogation of the common law, all the requirements of the statute, authorizing its exercise, must be strictly pursued. 6 Seld. 328, 329 ; and see 4 Hill, 76 ; 2 Denio, 323 ; 1 Seld. 439. The proceeding to acquire the title to real estate is a special proceeding within the meaning of section 3 of the Code of Pro- cedure. 10 Row. 168 ; 1 Kern. 277. //t what cases application may le made.] The statute provides that in case any company, formed under the general law («), is txnable to agree for the purchase of any real estate required for the purposes of its incorporation, it shall have the right to acquire title to the same in the manner, and by the special proceedings prescribed by the statute. Laws of 1850, p. 215, § 13. Bat if the company was formed prior to the 25th of March, 1853, either under the act of 1848 or 1850, and has been duly con- tinued in existence, to entitle it to the right to institute proceed- ings under the statute, at least ten thousand dollars for every mile of its railroad proposed to be constructed in this State, must be in good faith subscribed to its capital stock, and ten per cent, thereof paid in to the company. (J) laws of 1853,^. 79. (a) By section 49 of the General Law, the provisions of the statute relating to the proceedings to acquire title to real estate, here considered, were made to apply to all the existing railroad corporations within the State, where those provisions were not inconsistent with their charters. Laws 0/ 1850, ^. 235 ; and see 15 Sarb. 43 ; 3 Sand. S. C. R. 689. (6) But see, also, Laws of 1854, p. 610, § 4. where it is provided, that in case any railroad company, the line or route of whose road has been sui veyed and designated, and the certificate thereof duly filed as required by law, is unable to agree for the purchase of any real estate required for its roadway, the said corporation siiall have the riglit to acquire title to the same, by the special proceedings prescribed in the Genoial Railroad Act ; and all real estate acquired by any railroad corporation, under and pursuant to the provisions of this act, for the objects and purposes herein ex- pressed, shall be deemed to be acquired for public use. But this section shall not be so construed as to apply to any real estate in the city of Bu£fjlo, situated between Uaine and Michigan streets. CH. XXVII.] FOE RAILROAD PURPOSES. 213 By the statute, also, railroad corporations may institute pro- ceedings to acquire title to real estate, as well where the parties own such real estate in fee simple absolute, as where they have estates in the premises for life, for years, at will, and by suffer- ance. So, where they have estates in the same, in possession or expectancy, or other estates enumerated in article one, of title two, of chapter one, of the second part of the Revised Statutes. (1 Rev. Slat. 722). Laws of 1857, Pub. Acts, p. 94, § 2, ch. 444. A railroad company, as we have seen, is authorized to institute proceedings under the statute, to acquire title to real estate, only where it has been unable to agree for the purchase of the same. Zaws of 1850, § 13, supra. In a somewhat analogous proceeding, where it was sought to acquire title to real estate under the act for supplying the city of New York with water, the statute authoriz- ing the exercise of the power in cases where the water commis- sioners and owners disagree as to the amount of compensation ; it was held to be necesssary, to give the officer jurisdiction, to show that an unsuccessful attempt had been made by the com- missioners, to agree with the owners for the purchase of the land. " The legislature," says Foote, J., '■ manifestly intended to give the owner the benefit and opportunity of a voluntary sale, and required the respondents to make a fair and honest effort to pur- chase the land of him, before commencing proceedings to take it adversely. Hence the disagreement of the parties as to the amount of compensation was a material requirement of the statute, and an essential pre-requisite, without which, the vice- chancellor had nut jurisdiction." 1 8dd. 439. Petition and notice.] The statute provides that for the purpose of acquiring title to real estate," the company may present a peti- tion, praying for the appointment of commissioners of appraisal, to the Supreme Court, at a special or general term thereof, held in the district in which the real esftite described in the petition is situated. Zaws of 1850, p. 216, § 14. The petition must contain a description of the real estate which the company seeks to acquire ; and must, in effect, state that the company is duly incorporated, and that it is its intention in good faith to construct and finish a railroad from and to the places named for that purpose in its articles of association ; that' the whole capital stock of the company has been in good faith 214 PROCEEDINGS TO ACQUIRE LANDS [CH. XXVII. subscribed as required by the statute ; (a) that the company has surveyed the line or route of its proposed road, and made a map or survey thereof, by which such route or line is designated, and that they have located their railroad according to such survey, and filed certificates of such location, signed by a majority of the directors of tlie company, in the clerk's office of the several coun- ties through or into which the said railroad is to be constructed ; that the land described in the petition is required for tlie purpose of constructing or operating the proposed road ; a.nd that the company has not been able to acquire title thereto, and the reason of such inability. Ji. The petition must also state the names and places of residence of the parties, so far as the same can by reasonable diligence be ascertained, who own or have, or claim to own or have, estates or interests in the said real estate ; and if any of such persons are infants, their ages, as near as may be, must be stated ; and if any such persons are idiots, or persons of unsound mind, or are unknown, that fact must be stated, together with such other allegations and statements of liens or incum- brances on said real estate as the company may see fit to make. lb. For form of petition, see Appendix, No. 560. In case of proceedings against parties having future estates, or other estates enumerated in article one, of title two, of chapter one, of part two of the Revised Statutes (1 Rev. Stat. 722), the petition should set forth, in addition to the facts above required, the facts in relation to any such estate, and the person, persons, or class of persons, then in being or not in being, who are or may become entitled, in any contingency, to any estate as aforesaid, in such land. Laws (9/'1857, vol. 1, p. 874. The petition should be signed and verified according to the rules and practice of the court in like cases. Laws of 1850, p. 216, § 14. And it should be accompanied by a notice directed to the persons owning the real estate or interested in it, and stating the time and place, when and where the petition will be presented to the court. H. For form of notice, see Appendix, No. 561. Petition and notice to he served.'] A copy of the petition and (a) The cla.ise in respect to the subscription to the capital stock may be qualified in cases of corporations organized prior to the 25th of March, 1853 {ante, p. 212); and whether it may not now be entirely omitted, qucere'/ (see ante, p. 212, nofe 6). CH. xxvil] for EAILKOAD PUEPOSES. 2] 5 notice is required to be served on all persons whose interests are to be affected by the proceedings ; and this service must be made at least ten days prior to the> presentation thereof to the court. Laws of ISBO, p. 216, § 14; 20 Barb. 424. An omission to make such service or a service for a shorter time than required by the statute, -will render the proceedings irregular and void, 2 Kern. 190 ; though a voluntary appearance of the parties and contesting the proceedings on the single ground of the inadequacy of the damages awarded, would waive the irregularity. 1 Seld. 434. In a like proceeding, however, where the owner appeared before the oiBcer at the time appointed for drawing the jury, and objected to the regularity of the proceed- ings, without averring the grounds of his objection, and on the day when the jury met to appraise the damages, again appeared and objected to the competency of one of the jurors, who was set aside; it was held that such appearance did not cure the defect as to notice, but that the proceedings were void. 2 Kern. 190. How petition., So., to he served.] The statute requires the petition and notice to be served as follows : 1. If the person on whom such service is to be made resides in this State, and is not an infant, idiot, or person of unsound mind, service of a copy of the petition and notice must be made on him or his agent or attorney, authorized to contract for the sale of the real estate described in the petition, personally, or by leaving the same at the usual place of residence of the person on whom service must be made, as aforesaid, with some person of suitable age. 2. If the person on whom the service is to be made resides out of the State, and has an agent residing in this State, author- ized to contract for the sale of the real estate described in the petition, the service may be made on such agent or on such per- son personally out of the State ; or it may be made by publishing the notice, stating briefly the object of the application, and giv- ing a description of the land to be taken, in the State paper, and in a paper printed in the county in which the land to be taken is situated, once in each week for one month next pi-evious to the presentation of the petition. (For form of notice, see Ap- pendix. No. 562.) And if the residence of such person residing 216 PROCEEDINGS TO ACQUIRE LANDS [CH. XXVII. out of this State, but in any of the United States, or any of the British Colonies in North America, is known, or can by reason- able diligence be ascertained, the company must, in addition to such publication as aforesaid, deposit a copy of the petition and notice in tlie post-office, properly folded and directed to such person at the post-office nearest to his place of residence, at least thirty days before presenting such petition to the court, and pay the postage chargeable thereon in the United States. 3. If any person on whom the service is to be made is under the age of twenty-one years, and resides in this State, such service shall be made as aforesaid on his general guardian ; or if he has no such guardian, then on such infant personally, if he is over the age of fourteen years ; and if under that age, then on the per- son who has the care of, or with whom such infant resides. 4. If the person on whom the service is to be made is an idiot, or of unsound mind, and resides in this State, suc];i service may be made on the committee of his person or estate ; or if he has np such committee, then on the person who has the care and charge of such idiot or person of unsound mind. 5. If the person on whom the service is to be made is un- known, or his residence is unknown, and cannot by reasonable diligence be ascertained, then such service may be made, under the direction of the court, by publishing a notice, stating the time and place the petition will be presented, the object thereof, with a description of the land to be aifected by the proceedings, in the State paper, and in a paper printed in the county where the land is situated, once in each week for one month previous to the presentation of such petition. Laws of 1850, p. 216, § 14. For form of notice to unknown owners, see Appendix, No. 562. If any of the parties to be affected by the proceedings are in- fants, idiots or persons of unsound mind, all notices required to be served in the progress of the proceedings may be served on the general or special guardians of such infants, or on the com- mittees of such idiots or persons of unsound mind. Ih. And in all cases not herein otherwise provided for, service of orders, notices and other papers in this proceeding may be made as the Supreme Court shall direct. lb. Guardian or committee for infants or lunatics.] The statute provides that in case any party to be affected by the proceedings CH. XSVII.] FOR BAILROAD PURPOSES. 217 is an infant, idiot, or of unsound mind, and has no general guard- ian or committee, the court shall appoint a special guardian or committee to attend to the interests of such person in the proceed- ings ; but if a general guardian or committee has been appointed for such person in this State, it shall be the duty of such general guardian or committee to attend to the interests of such infant, idiot, or person of unsound mind ; and the court may require such security to be given by such general or special guardian or com- mittee as it may deem necessary to protect the rights of such in- fant, idiot, or person of unsound mind ; and all notices required to be served in the progress of the proceedings may be served on such general or special guardian, or committee. Laws of 1850, p. 217, § 14, sxcl. 6 ; and see 36 Barb. 600. A guardian or committee is entitled to such sum for costs, ex-. penses and counsel fees in the proceedings as the commissioners appointed to appraise the land, or a majority of them, shall deter- mine to be proper. Laws of \%h^., jp. 609; 1864,^. 1337, amend- ing § 16 of General Law. Attorneys to he appointed for unknown and other owners.] The court is required, by the statute, to appoint some competent attorney to appear for and protect the rights of any party in in- terest who is unknown, or whose residence is unknown, and who has not appeared in the proceedings by an attorney or agent. Laws of 1850, j9. 220, sec. 20. And so, where there is no attorney appearing in behalf of persons having future estates, or other estates enumerated in article one, title two, chapter one, of part two of- the Revised Statutes (1 Hev. Stat. 722), the court is required to appoint some competent and disinterested attorney or officer of the court to appear in the proceedings, and represent the rights, interests and estate of the person or class of persons enumera- ted in said article, in any such land, and to protect the same, on the appraisal and other proceedings. Laws of 1857, vol. 1, p. 871. The attorney appointed is entitled to such sum for his costs, expenses and counsel fees in the proceeding as the commissioners appointed to appraise the land, or a majority of them, may deter- mine to be proper. Laws of 1854:, p. 609; 1864,^. 1337, amend- ing § 16 of General Law. 218 PEOCEEDINGS TO ACQUIRE LANDS [CH. XXVII. Application to court and' proceedings thereon.] The statute provides, that on presenting the petition to the Supreme Court, ^vith proof of the service of a copy thereof and of the notice, as required by the statute, all or any of the persons wliose estates or interests are to be affected by the proceedings, may show cause against granting the prayer of the petition, and may disprove any of the facts alleged in it. And the court is required to hear the proofs and allegations of the parties, and if no sufficient cause is shown against, granting the prayer of the petition, it shall make an order for the appointment of three disinterested and competent freeholders, who reside in the county or some adjoining county where the premises to be appraised are situated, commissioners to ascertain and appraise the compensation to be made to the owners or persons interested in the real estate proposed to be taken in such county for the purposes of the company, and to fix the time .and place for the first meeting of the commissioners. Laws o/" 1854,^. 609, amending § 15 of the General Law. For form of order, see Appendix, No. 563. It seems that if the facts alleged in the petition are denied by the owner, upon which an issue is formed, the proof required to be produced by the owner to disprove the facts alleged, must be legal evidence ; and that the party's own affidavit, or any other affidavit, will not answer. 6 How. 96. The court may appoint commissioners to appraise all the lands proposed- to be taken in a county, though owned by diflier- ent parties. The sixteenth section of the statute contemplates a succession of appraisals by the same commissioners; and one report may embrace all the cases. And so, it seems, the court may fill more than one commission, where good cause therefor is shown ; though this would not be done unless clearly necessary. Id. 238. Objections to the regularity of the proceedings ; as, that the petition is not properly verified, or that it does not appear by the petition that the company has been unable to agree for the purchase of the right of way ; must be taken at the time of the presentation of the petition. And it is too late to raise such ohjections on the motion for the confirmation of the commis- sioners' report. 5 Id. 177. The commissioners and their proceedings.] The commis- CH. XXVII.J FOB RAILROAD PURPOSES. 219 sioners, before proceeding to the discbarge of their duties, are each required to take and subscribe an oath to siipport the con- stitution of the United States, and the constitution of the State of New York, and faithfully to discharge the duties of his office of commissioner according to the best of his ability. Laws of 1854, p. 609; J 864, f. 1336; amending section IG of General Law. For form of oath, see Appendix, No .564. Any one of the commissioners may issue subpoenas and administer oaths to witnesses. And a majority of them may adjourn the proceedings before them, from time to time, in their discretion. Ih. Whenever they meet, except by the appointment of the court or pursuant to adjournment, they must cause reasonable notice of their meeting to be given to the parties interested, or their agent, or their attorney. Ih. And all parties claiming dam- ages, should attend the meetings of the commissioners and make their objections ; otherwise, if the proceedings are regular, they will have no redress unless by leave of the commissioners. 5 How- 177. The statute also provides, that the commissioners shall view the premises described in the petition, and hear the proofs and allegations of the parties, and reduce the testimony taken by them, if any, to writing, and after the testimony in each case is closed, they or a majority of them, all being present, shall, without any unnecessray delay, and before proceeding to the examination of any other claim, ascertain and determine the com- pensation which ought justly to be made by the company to the owners, or persons interested in the real estate appraised by them. Ih. The commissioners, upon the hearing, have the right to hear the prooft and allegations in such order as they may deem most conducive to justice between the parties, and to decide which party shall open and which shall close- the argument. 16 Barb. 68. And in determining the compensation to be made to a party, they are to exercise their own judgment, formed upon a view of the preriiises, in connection with the testimony of the witnesses before them, and not to the exclusion of it. 6 How. 467. They are to be guided in their proceedings by the established rules of evidence ; and no testimony should be received which a court 220 PROCEEDINGS TO ACQUIRE LAXDS [UH. XXVII. of law would reject, and none rcjec;ted which a court of law would hold to' be admissible. 16 Barh. 100, Opinions of witnesses as to tlie value of the land from which the road is taken, as a whole, and how its value will be affected by severing the portion proposed to be taken for the purposes of the company, are competent as evidence. Though the opinions.of witnesses as to how much damage or injury tiie party whose lands are taken will sustain, otherwise than by diminishing the value of his property, are incompetent. 6 How. 467 ; and see 16 Bai^b. 100. And so, where the question is as to the amount of compensa- tion which ought to be awarded to a turnpike company, for granting to a railroad company an easement, or right of way, across their road, the opinions or conjectures of witnesses as to the effect the use of the railroad will produce in frightening horses traveling upon the turnpike, at a particular place ; or as to the necessity for diverting the line of the turnpike, at another place, and the cost of such diversion ; or that a bridge ought to be built by the railroad company at a crossing ; or as to the amount of ■ damages the turnpike company will sustain by reason of the crossing of their road, are inadmissible in evidence. 75. In the case last stated, any proof having a legitimate bearing npon the question to be determined, and which, by the estab- lished rules of evidence, would be received in a court of law, should be received; and all other proof should be rejected. And it will be assumed, in such a case, that the railroad company will, as required by law, restore the turnpike to such a state as not necessarily to impair its usefulness. And the consideration that the business of the turnpike will be diminished by the con- struction of the railroad along the same general line of travel, should be disregarded. Ih. ^ In determining the amount of compensation, the rule is, to determine what will be the effect of the proposed change upon the market value of the property remaining. The proper inquiry is, what is the entire property now fairly worth in tlie market, and what will that part not taken be worth after the improvement is made. 13 Barl. 169 ; and see 16 Id. 273. And in determining such compensation, the commissioners are forbidden by the statute from making any, allowance or deduc- tion on account of any real or supposed benefits which the parties CH. XXVII.] FOR RAILROAD PURPOSES. 221 interested may derive from the construction of the proposed rail- road, or the construction of the proposed improvement connected with the road, for which such real estate may be taken. Laws of 1854, p. 609 ; 1864, p. 1336, amending § 16 of General Law. The • intention of the statute is, to coniine the commissioners to an estimate of the price to be paid by the company to the owner of the land, regardless of the benefits or injuries which might result to him as the owner of the adjoining land, in consequence of the contemplated improvement. 16 Barb. 68. It is a proper rule, however, for the commissioners to adopt, that they will allow fall compensation for the land taken, including therein the damages to the adjacent land by reason of such taking ; though they should not allow consequential and prospective damages. Ih. And the commissioners are not to be confined in their esti- mate of the damages, to the actual abstract valfle of the land to be taken, as though the owner would have no other lands left to be afl'ected by the improvement. They are to consider how the taking of the land, not how the -use of it in any particular mode, will affect the residue of the owner's land, and award compen- sation accordingly. And, therefore, it is correct for them to reject conjectural evidence, offered for the purpose of showing that the owner might be injuriously affected, should a railroad be constructed and used upon the land to be taken. Ih. ; and 1^ Barh. 273. The commissioners cannot appraise the land taken for a rail- road, with a reservation of easements and privileges to the owner; but they must appraise it at its actual value. And, therefore, where the inquisition stated that the award of dama- ges was " based on the supposition and made on the condition and with the understanding " that the owners of the land might open a street across the railroad ; it was held that the appraise- ment was illegal, and that the inquisition should be set aside. 5J)enio,.206. The statute also provides that the commissioners, or a major- ity of them, shall determine what surn^ ojight to be paid to the general or special guardian of an infant, or committee of an idiot, or person of unsound mind, or to an attorney appointed by the court to attend to the interests of any unknown owner or party in interest not personally served with notice of the pro- ceedings, and who has not appeared, for costs, expenses, and 222 PEOCEEDINGS TO ACQOIEE LANDS [CH. XXVII. counsel fees. Laws -of 1854, p. *609, § 3 ; and 1864, p. 1336, amending § 16 of General Law. Where the commissioners have made a report to the court, and \>y an order are permitted to amend or correct it, so as to conform it to the state of facts which existed, they have no right, at the time of such correction, to hear proofs by claimants as to damages. When they have viewed the premises and decided upon the amount of damages to be paid, their powers under their appointment are exhausted, so far as the amount of damages is concerned, until the further order of the court. 5 How. 177. Commissioners' report, and fees.'\ The statute requires the commissioners to make a report of their proceedings to the Supreme Court, with the minutes of the testimony taken by them, if any. Laws of 1854, p. 609 ; 1864, p. ia36, supra. And where there has been an appraisal of several diiferent par- cels of land, one report may embrace all the cases. 6 How. 5i38. It is sufficient if the report is signed by a majority of the commissioners, and it is not necessary that all of the commis- sioners should be present at the signing. 10 How. 169. For form of report, see Appendix, No. 565. The commissioners, by the statute, are each entitled to five dollars for services and expenses for every day they are actually engaged in the perfmnance of their duties, to be paid by the company, except where the owners or persons interested in the real estate fail to have awarded them more than the amount of compensation offered them by the company before the appoint- ment of commissioners, then to be paid by the said owners or persons interested, or if not paid by them, to be paid by the com- pany, and deducted from the amount awarded. Laws of 1864, p. 1336, amending § 16 of General Law. Motion to set aside report.^ The statute does not give the court power to set aside the report of the commissioners, upon motion for that purpose ; and the only remedy of the party is by appeal. 7 Hoio. 164 ; and see 5 Id. 182 ; 21 Id. 434. If, however, the report should be untrue in any material respect, or the proceedings of the commissioners have been irreg- ular, and the report fails to state the facts constituting such irregularity, upon a proper application, directly made to the CH. XXVII.J FOR RAILROAD PURPOSES. 223 court, on the part of the person opposed to the confirmation, the court will set aside and vacate the report. 10 How. 168, 173. On such application either party would have the opportunity of spreading before the court all the facts in their power to furnish, bearing upon the questions of the truth of the report, and the regularity of the proceedings of the commissioners. And in view of such application, the court, or a judge thereof, would, if necessary, order the proceedings on the part of the company to have the report confirmed, stayed, as in the case of other mo- tions, until the motion to set the report aside should be deter- mined. Ih.,per Welles, J. Order confirming report.'] After the commissioners have made their report, proceedings should be taken to have the same confirmed by the court. Until the report is confirmed, the pro- ceeding is still incomplete, and neither party has any vested right, neither the company, to the lands, nor the owner to the money awarded. 3 Sand. Sup. O. li. 689. Laws of 1850,^. 219, § 18. It is provided by the statute that on the report being made by the commissioners, the company shall give notice to the par- ties or their attorneys, to be affected by the proceedings, ac- cording to the rules and practice of the court, at a general or special term thereof, for the confirmation of the report. Laws of 1850,^. 219, § 17. For form of notice, see Appendix, ISTo. 566. The notice should be served, at least eight days before the first day of the term at which the motion is to be made ; and should be accompanied with a copy of the commissioners' report. Code, §§ 402, 412 ; Sup. Court Rules, No. 49. At the term specified in the notice, the court is required to confirm the report, and to make an order containing a recital of the substance of the proceedings in the matter of the appraisal, and a description of the real estate appraised, for which compen- sation is to be made. It will also direct to whom the money is to be paid, or in what bank, and in what manner it shall be depos- ited by the company. Laws of 1850, p. 219, § 17. For form of order, see Appendix, No. 567. It is made the duty of the court, also, on or after the confirm- ation of the report, to ascertain by the report, or by a reference 224 PROCEEDINGS TO ACQUIRE LANDS [CH. XXVn. for that purpose, or otherwise, in its discretion, the rights, interest, and estate of persons having future estates or other estates enu- merated in article one, of title two, of chapter one, of second part of the Revised Statutes (1 Rev. Stat. 722), in the land appraised, and in the compensation awarded therefor, and to make an order determining the amount or share of such compensation, to which such persons or class of persons are or may become entitled on ajccount of such estate, as the same shall arise or become vested in them respectively, and to direct and provide for the payment, investment, or securing thereof, for the benefit of the persons or class of persons aforesaid, who are, or may, in the contingency upon which the estate arises, become entitled thereto. Laws of 1857, vol. l,p. 871. If it appears that the commissioners have been regular in their proceedings, and that due notice of the motion for confirmation has been given, it is a matter of course to confirm the report. 5 Hoiu. 177 ; 10 Id. 168. And no affidavit or other proof will be heard on the application, to contradict or impeach the truth of the matters contained in it. li. Nor will the court, on such appli- cation, review or examine any error of law committed by the commissioners in their decision of the merits, or upon the admis- sion or rejection of evidence. Ih. Nor any question in respect to the regularity of the "proceedings ; as, that the petition is not properly verified, or, that it does not appear by the petition that the company has been unable to agree with the owner for the purchase of the real estate in question. 5 Id. 177. Though where neither the report, nor any of the proceedings which precede it, properly designate the lands proposed to be taken, it seems the court will, on the motion to confirm the report, con- sider the objection, and correct the defect complained of. 21 How. 434. Nor will a commissioner, on application to confirm a report which he has properly signed, be permitted to stultify himself in any case by alleging that he signed the report without reading or hearing it read. 10 Id. 169, and see 1 Barb. S. C. B. 326 ; 2 Id. 482. A certified copy of the order confirming the report, is required to be recorded at full length in the clerk's office of the county in which the land described in it is situated. Laws of 1850,^. 219, §18. CH. xxrvn.] for railroad purposes. 225 Effect of the order, cfec.J The statute provides that upon recording the order confirming the commissioners' report, and on the payment or deposit by the company of the sums to be paid as compensation for the land, and for the costs, expenses and coun- sel fees of a guardian, committee or attorney appointed for, or representing, any of the parties in interest, as directed by the order, the company shall be entitled to enter upon, to take pos- session of and to use the said land for the purposes of its incor- poration, during the continuance of its corporate existence, by virtue of this or any other act ; and that all persons who have been made parties to the proceedings shall be divested and barred of all right, estate, and interest in such real estate, during the corporate existence of the company. Laws of 1S50, p. 219, § 18. And all real estate acquired by any company under and pursuant to the provisions of the statute, for the purposes of its incorporation, shall be deemed to be acquired for public use. Ih. It is farther provided, by statute, in respect to persons having future estates, or other estates enumerated in article one, of title two, of chapter one, of the second part of the Kevised Statutes (1 Jiev. Stat. 732 ), that upon the company paying or securing the amount or share to which such persons are entitled, in the manner directed by the order of tlie court, the company shall be deemed to have acquired, and will be vested with, the estate which such persons, or class of persons, have or may be entitled to in said land ; and that they shall be barred of and from all right or claim in and to such land. Laws of 1857, vol. l,p. 871, § 2. (a) The company, however, obtains no greater right or title to the land than the parties possessed, against whom the proceed- ings are instituted. 9 How. 554. Upon recording the order, and paying or depositing the money as required by the statute, the title of the parties proceeded against, to the premises taken, becomes wholly vested in the company. Id. 467. And the com- pany is entitled to enter upon and take possession of the land ; and the owners become divested and barred of all their interest (o) It is also provided in the same section, that any corporation may acquire tho title in fee, by proceedings under the statute, to any land which it may require for roadway, and for necessary buildings, depots, and freight grounds. Vol. II.— 15 226 progeedin;}3 to acquike lands [ch. xxvii. in the same. They have no longer any legal right to keep the company out of possession ; and if they uesiat the agents of the company, in their attempt to take possession, they will be guilty of an unlawful act. This, however, will not authorize the issuing of a writ of possession, or assistance, upon the application of the company. 16 Barb. 270. But the title which the company acquires is qualified as being taken for public use, and is subject to the exercise by the legis- ture of all the powers to which the franchises of the corporation are subject. 24 New York, 345. It is subject, too, to the duty, on the part of the company, to make and maintain suitable farm crossings, and the right of passage on the part of the former owner over the road at those crossings. 12 Barb. 227. In respect to subsequent transfers of the property after the institution by the company of proceedings to acquire the title to land, the statute provides, that when any such proceedings shall have been commenced, no change of ownership by voluntary con- veyance or transfer of the real estate, or any interest therein, or of the subject matter of the appraisal, shall in any manner affect such proceedings ; but the same may be carried on and perfected, as if no such conveyance or transfer had been made or attempted to be made. Laws of 1854, p. 610, § 6. Power of court, amendments, &c.\ The court has the power, at any time, to amend any defect or informality in any of the proceedings authorized by the statute, as may be necessary ; or to cause new parties to be added, and to direct such further notices to be given, to any party in interest, as it deems proper, and also to appoint other commissioners in place of any who shall die, or refuse, or neglect to serve, or be incapable of serving. Laws of 1850, p. 220, § 20. , And where the mode or manner of conducting all or any of the proceedings to the appraisal, and the proceedings consequent thereon, are not expressly provided for by the statute, the court before which the proceedings may be pending, has the power to make all the necessary orders and give the proper directions to carry into effect the object and intent of the statute ; and the practice in such cases shall conform as near as may be to the ordinary practice in such courts. Laws of 1854, p. 610, § 5. CH. XXVII.] FOR KAILROAD PURPOSES. 227 Appeals and proceedings thereon.] The statute provides, that within twenty days after the confirmation of the report of the commissioners, as provided for in the 17th section of the statute [supra), either party may appeal, by notice in writing to the other, to the Supreme Court, from the appraisal and report of the com- missioners. Laws of 1850, p. 220, § 18. For form of notice, see Appendix, No. 568. Tlie appeal is required to be heard by the Supreme Court, at a general or special term thereof, on notice thereof being given, according to the rules and practice of the court. Ih. For form of notice of hearing, see Appendix, No. 569. If an order is made at the special term, an appeal may be taken to the general term ; so held on an appeal from an order confirming the commissioners' report. 10 Sow. 168 ; Laws of 1854, ch. 270, ante, vol. l,p. 19. But no appeal will lie from the decision of the general term to the Court of Appeals. So held, where the report of the commissioners was confirmed at the special term ; from which decision an appeal was taken to the general term, and a new appraisal refused, and the report and proceedings affirmed, from which last decision an appeal was taken to the Court" of Appeals. 1 Xern. 276. On the hearing of the appeal, the court may direct a new appraisal before the same or new commissioners in its discretion; the second report to be final and conclusive on all parties in- terested. If the amount of the compensation to be made by the company is increased by the second report, the difference will be a lien on the land appraised, and shall be paid by the company to the parties entitled to the same, or shall be deposited in the bank, as the court shall direct ; and if the amount is diminished, the difference shall be refunded to the company by the party to whom the same may have been paid ; the judgment therefor may be rendered by the court, on the filing of the second report, against the party liable to pay the same. Laws of 1850,^. 220, §18. No affidavits can be read on the hearing of the appeal ; but the court must act solely upon the report of the commissioners. 6 Bow. 223; 5 Id. 177. The court, on the appeal, will not interfere with the proceed- ings of the commissioners unless satisfied that some substantial 228 PROCEEDINGS TO ACQUIRE LANDS [CH. XXVII. error has been committed. And their award will not be set aside for every technical error, in respect to the admission or rejection of evidence. The error should be of such a character as to show that the commissioners have misapprehended the principles upon which they were to make tlieir appraisal, and that the party ap- pealing may have been injuriously affected by such misapprehen- sion. 16 Barh. 100 ; 13 Id. 169. And where evidence has been rejected which the party was entitled to give and have considered, by the commissioners, and which, had it been received, might have led to a more favorable determination for him, the report will be set aside. 6 How. 467. By the statute, as we have seen, on the hearing of the appeal, the court may direct a new appraisal before the same or new commissioners ; but this does not entitle a party as a maitter of right to a second hearing and appraisal. Ih. 223. The appeal is not to affect the possession by the company of the land appraised ; and where the appeal is made by others than the company, it cannot be heard, except on a stipulation of the party appealing, not to disturb such possession. Laws of 1850,^?. 220, § 18. Proceedings if title proves defective.'] The statute provides, that if, at any time after an attempt to acquire title by appraisal of damages or otherwise, it shall be found that the title thereby attempted to be acquired is defective, the company may proceed anew to acquire or perfect such title in the same manner as if no appraisal had been made ; and at any stage of such new proceed- ings, the court may authorize the corporation, if in possession, to continue in possession, and, if not in possession, to take possession, and use such real estate during the pendency and until the final conclusion of such new proceedings; and may stay all actions or proceedings against the company on account thereof, on such company paying into court a sufficient sum, or giving security as the court may direct, to pay the compensation therefor when finally ascertained ; and in every such case, the party interested in such real estate may conduct the proceedings to a conclusion, if the company delays or omits to prosecute the same. Laios of 1850, p. 221, § 21. " The existence of a mortgage which is a lien upon land taken and used by a railroad company for the purpose of constructing CH. XXVII.] FOE RAILROAD PURPOSES. 229 and operating its road, is one of the defects contemplated by the above section. And the company need not wait until the mort- gaged premises are sold nnder a decree of foreclosure ; but on discovering the existence of the incumbrance, they may proceed immediately, and on complying with all the provisions of the statute, may have the lien extinguished, as to the land occupied by them. 20 Barb. 419. The object of the statute was to enable a railroad company to acquire perfect title to real estate upon which their road should be located, unincumbered by any lien of mortgage, judgment or otherwise. II. 425, per C. L. Allen, J. ; and see 16 How. 575. lieference, &c., in respect to claimants of money.'] If there are adverse and conflicting claimants to the money, or any part of it, to be paid as compensation for the real estate taken, the court may direct the money to be paid into the Supreme Court by the company, and may determine who is entitled to the same, and direct to whom the same shall be paid ; and may, in its dis- cretion, order a reference to ascertain the facts on which such determination and order are to be made. Laws of 1850, j?. 220, § 19 ; 20 Barl. 425. And so, in cases of proceedings to acquire the interest of parties having future estates or other estates enumerated in article one, of title two, of chapter one, of part two of the Revised Statutes (1 Rev. Stat. T22), it is the duty of the court, on or after the confirmation of the commissioners' report, to ascertain by the report or by a reference for that purpose, or otherwise in its dis- cretion, the rights, interest and estate of such persons or class of persons in the lands appraised, and in the compensation' awarded tlierefor, and to make an order determining the amount or share of such compensation to which such persons or class of persons are or may become entitled on account of such estate, as the same shall arise or become vested in them respectively, and to direct and provide for the payment, investment, or securing thereof, for the benefit of the persons or class of per- sons aforesaid, who are, or may in the contingency upon which such estate arises, become entitled thereto. Laws of 1857, vol. 1,^.871, §2. Title, how acquired, when held in trust, or hy infants, d&c] 230 ■ PROCEEDINGS TO ACQUIRE LANDS. [CH. 2XVI1. It is provided by the statute that in case any title or interest in real estate required by any railroad company for the purposes of its incorporation, shall be vested in any trustee not authorized to sell, release, and convey the same, or in any infant, idiot, or person of unsound mind, the Supreme Court shall have the power, by a summary proceeding on petition, to authorize and empower such trustee, or the general guardian or committee of such infant, idiot, or person of unsound mind, to sell and convey the same to such company for the purposes of its incorporation, on such terms as maybe just; and in case any such infant, idiot, or person of unsound mind has no general guardian or committee, the court may appoint a special guardian or committee for the purpose of making such sale, release or conveyance, and may require such security from such general or special guardian or committee as the court may deem proper. Laws of 1850, p. 211, §§ 26, 49 ; 9 Eow. 554. But before any conveyance or release authorized by the above section shall be executed, the terms on which the same is to be executed shall be reported to the court, on oath ; and if the court is satisfied that such terms are just to the party interested in such real estate, the court shall confirm the report, and direct the proper conveyance or release to be executed, which shall have the same effect as if executed by an owner of said land, having legal power to sell and convey the same. Laws of 1850, p. 211, §26. CHAPTER XXVIII. EEDEMPTION OF EEAL ESTATE, {a) Section I. Peoceedinos to redeem Premises from sale on Execution. IL Procbbdinqs in Actions to redeem Moktqaged Premises. SECTION I. REDEMPTION OP REAL ESTATE FROM SALE ON EXECUTION. The redemption of lands from sale under execution is author- ized and regulated wholly by statute, the proceeding being un- known to the common law. The first statute on the subject in this State was passed in 1820 {Sess. Laws, 16Y), prior to which the purchaser of lands upon execution was entitled to a deed on payment of the purchase money ; upon receiving which, the title passed absolutely to him. By that statute a system was devised which, in effect, extended a credit of fifteen months to the judg- ment debtor from the sale ; and within which' time he, or his representatives, or any assignee of his interest, or any judgment creditor, at the periods designated in the statute, and upon com- plying with certain conditions therein prescribed, could redeem the premises from the sale. 20 Wend. 558. That system was afterwards engrafted into the Kevised Statutes ; which, with the amendments and additions since made, constitute the present law on the subject in this State. 2 Rev. Stat. 370; Laws of 1835, p. 210; 1836,^. Y93; 1837, p. 540; 1847, i?. 508; 1857, vol. 1, ^93; 1862, J?. 872. (a) For the statutory provisions relating to the redemption of lands sold on mortgages to the State, see 1 Rev. Stat. 213 ; and for the like provisions in reference to the redemption of lands sold for taxes, see 1 Id. 402 ; Laws o/1850, pp. 344, 641; 1855, i3. 181; ISGO.J?. 352; 1862,^.481. 232 REDEMPTION OF REAL ESTATE CH. X2VIII. The statute was designed for the benefit of the debtor by pre- venting a sacrifice of his property ; and of the junior judgment creditor by giving him a chaace to redeem the land sold upon a senior judgment. 1 Cowen, 501^ 4 Corns. 561. The statute, ■ therefore, will be construed liberally as in favor of the debtor and his redeeming creditor ; though, in all essential points, care should be taken fully and strictly to follow its provisions, (a) Id. ibid. ; 2 Hill, 51 ; 1 Id. VII ; 7 Paige, 177; 18 Wend. 598; 20 LI. 555 ; 25 New York, 619. "In relation to the new points which may arise," says Bronson, Ch. J. (4 Denio, 144)—" and there is never likely to be an end of them under this very imper- fect law — it cannot be very profitable to discuss the abstract question whether the statute should receive a strict or a liberal construction. I think it should receive such a reasonable con- struction as is best calculated to carry into eff'ect the end which the legislature had in view. That end was, to make the land bring its utmost value, by means of an auction among the cred- itors, preserving to each one his right, according to the seniority of his lien. The mode of conducting the auction, so far as it has been plainly prescribed, must be followed, whether it be reason- able or unreasonable ; unless the party who has the right to insist upon performance, chooses to dispense with it. When the mean- ing of the statute is doubtful, that construction should be adopted which will secure the rights of all the creditors, according to the seniority of their respective liens, and keep up the auction until the best price has been obtained. And the same great end should be steadily kept in view, in disposing of all questions upon which the statute is silent." The statute relates to the redemption of real estate, which includes all estates or interests in real propertj' held for life, or some greater estate. See 20 Wend. 417. It includes, also, leasehold property, where the lessee, or the assignee of the lessee, is possessed of at least five years' unexpired term of the lease, and also of any building or buildings that may be (a) For the remedy of the purchaser, his heirs or assigns, on failure of title to real estate sold on execution, where such failure arises from irregularity in the pro- ceedings on the sale, or by reason of the judgment being vacated or reversed ; and for the remedy to enforce contribution between several owners of lands subject to the same judgment, see 2 Rev. Stai. 375. CH. XXVIII.] FEOM SALE ON EXECUTION. 233 erected thereon. Laws of 1837, p. 540 ; 20 Wend. 41 Y. But -where the interest of the tenant in a lease given for twenty-one years was sold on execution, but less than five years of the term remained unexpired at the time of the sale, it was held that no right of redemption existed, though the lease contained a cove- nant for renewal. Y Hill, 150. JSTor does the right of redemp- tion exist in respect to sales made upon the foreclosure of a mechanic's lien. 4 Abb. 205. It includes, however, a rent charge, reserved upon a lease in fee, containing a clause of re- entry and right to distrain ; but not a rent sech. Y Wenil. 464 ; and see 6 Rill, 149. Certificate of sale ; its contents, c&c.J The statute provides, that upon the sale of any real estate, by virtue of any execution, the officer making the same shall make out and subscribe du- plicate certificates of such sale, containing: 1. A particular description of the premises sold; 2. The price bid for each distinct lot or parcel ; 3. The whole consideration money paid ; and 4. The time when such sale will become absolute, and the purchaser will be entitled to a conveyance pursuant to law. 2 Rev. Stat. 3Y0, see. 42. For form, see Appendix, No. 5Y0. One of the said duplicate certificates is required, within ten days after the sale, to be filed in the office of the clerk of the county, and the other to be delivered to the purchaser. If there are two or more purchasers, a certificate is to be delivered to each. Ih. sec. 43. But the omission of the sherifl" to file the certificate will not prejudice the purchaser. 5 Cowen, 269. The statute further provides, that whenever the certificate of sale shall be filed in the office of the clerk or register of any county, pursuant to the statute, it shall be the duty of such clerk immediately to record the same in a book to be kept by him for that purpose, and the same shall be properly indexed in the name of the defendant or defendants in the judgment, for which service the clerk or register shall be entitled to the same fees allowed for recording conveyances, to be paid by the sheriff out of the avails of the sale, except in counties where the clerk or register is a salaried office. Laws i ofl%^^,p. 210. But before any assignee, or his personal representative, shall be entitled to a deed under the statute, he is required to cause the execution of any and every assignment under which the deed is claimed, to be duly acknowledged or proved, as deeds are required by law to be acknowledged or proved, to entitle them to be recorded, before some officer authorized to take the acknow- ledgment and proof of deeds ; and to cause all such assignments, with their certificates of proof or acknowledgment, to be filed in the office of the clerk of the county in which the real estate so sold is situated. Ih. The assignee is not entitled to a conveyance unless he has filed the assignment with the certificate or proof of acknowledgment, 2 ComH. 490, aff. 4 Denio, 145 ; and the sheriff, therefore, cannot be compelled tb convey real estate sold by him until the assign- ment lias been filed, lb. ; though if the sheriff executes a deed where the assignment has not been filed or acknowledged, such deed is nevertheless valid. 7 Hill, 91. Nor would the title of a purchaser from a redeeming creditor, who has received a deed from tlie sheriff, be prejudiced by an omission to prove and file the assignment. 4 Denio, 480. But it is not necessary to file the assignment where it is pre- sented to the officer by a junior judgment creditor for the purpose only of dispensing with the payment by him of the amount paid on the sale. 1 Id. 240. In case any deed shall be executed to executors or.administra- tors of any assignee of the certificate of sale, the estate thereby conveyed, shall be held and may be sold as provided in section •sixty -four, supra. Laws of 1835,^. 210, § 4. Any officer authorized by law to take the proof of deeds, is CH. XXVIII.] PROM SALE ON EXECUTION. 259 authorized and required to take the acknowledgment or proof of such assignments, and to certify the same; which certificate, or a copy certified by the clerk shall have the like force and efl'ect as in case of deeds. Ih. § 3. The sheriffs deed, although executed long after the sale, being founded on the sale, relates back to the time of the sale. 6 Wend. 224 ; 3 Cowen, 89 ; 2 Corns. 377. And a deed executed to the purchaser by the deputy of the sheriff in his name and behalf, is good. 10 Johns. 223 ; 12 Id. 162. The deputy who has made the sale of the premises, during the term of office of his principal, may, after the expiration of such term, proceed and complete the execution thereof by the giving of a deed. 6 Wend. 213. The conveyance of the sheriff should specify with sufficient certainty, the lands sold, and who was the purchaser. 2 Johns'- 248. The specification should be so particular, that from the description, the premises can certainly be ascertained. And where lands are conveyed by the sherifi", and two distinct parcels are found equally answering the description contained in the deed, the conveyance will be held inoperative, for the reason tliat it was intended to pass but one, and it cannot be determined which was intended. 11 Barb. 174. The purchaser or redeeming creditor, may direct the deed to be executed to a third party ; and the judgment debtor cannot object to its regularity. 1 Wend. 46. Where the rights of several defendants to the premises are sold by the sheriff, and a creditor by mortgage of one of the defendants, redeems the title of such defendant, the deed of the slieriff to such redeeming creditor conveys only the right and title of the defendant which is thus redeemed. 5 Barb. 565. If a deed has been impr.ovidently executed to the purchaser, and afterward the sherifi" is directed to execute a deed to a re- deeming creditor, the court will not direct the first deed to be canceled, but leave the creditor to enforce his rights as he shall be advised is proper. 7 Wend. 463. Effect of conveyance by sher-iff.'] By the statute the convey- ance of the sheriff is valid and effectual to convey all the right, title, and interest sold by him on the execution. 2 Rev. Stat. 373, sec. 62. And such conveyance extinguishes a lease given by the judgment debtor between the time of the sheriffs sale and the 260 EEDEMPTION OF EEAL ESTATE [CH. XXVIII. execution of the sheriff's deed. 5 Bosio. 619. It vests, too, in the grantee all the right and title which the debtor had in the land at the time when the judgment iirst attached as a lien, free from all later incumbrances and unaffected by any subsequent conveyances or acts. 19 New York, 3T3, per Comstock, J. Proceedings if sheriff die, or is removed, dtc] The statute provides, that if any sheriff, to whom an execution shall be de- livered, die or be removed from office before such execution be satisfied, his under-sheriff shall proceed thereon in the same man- ner as the sheriff might have done ; and if a sheriff who has sold any real estate, die or be removed before executing any convey- ance in pursuance of such sale, such conveyance shall be executed by his under-sheriff", in the same manner, and with the like effect as if done by the sheriff. 2 Hev. Stat. 374, sec. 65 ; Laws of 1835,^. 210. If there be no such under-sheriff, the court from which the execution issued, may, on the application of the plaintiff, appoint some suitable person to proceed on such execution and complete the same, instead of such under-sheriff; and on the application of any person entitled to a conveyance, the court may appoint a proper person to execute the same. The person so appointed shall' give such security as the court may require, and shall have the same power in relation to the object of. his appointment as the sheriff so dying or removed. 2 Eev. Stat. 374, sec. 66. But no security will be required, where a deed merely is to be executed, and no money is to be collected or other act done. 10 Wend. 562. If any sheriff shall die, or be removed from office after having made sale of any real estate, the mroneys required to be paid to him for the redemption of such estate may be paid to his under- sheriff or to the clerk of the county, in the same manner and with the like effect as if paid to the sheriff. 2 Bev. Stat. Zli, sec. 67. How possession of premises obtained^ The purchaser or re- deeming creditor obtains by the sheriff's deed only the legal title to the land. Actual possession, if the defendant refuses to deliver it, can only be obtained under the statute concerning summary proceedings to obtain possession of land. 2 Rev. Stat. 512, seo. CH. XXVIII.] FROM SALE ON EXECUTION. 261 28, sul. 4; in Wend. 31; 11 Id. 464; 20 Id. 22; and seepost, Chapter xxx. of this work, where the practice is given at large. Proceedings where waste is committed on ike lands sold.] It is provided by the statute, that whenever any lands or tenements shall be sold by virtue of an execution issued upon any judgment or decree, the person to whom a conveyance may be executed by the sheriif, pursuant to the sale, may maintain an action against any person who may have been in possession of the premises so conveyed, after the sale thereof, for any waste committed on such premises after such sale. 2 Jiev. Stat. 336, sec. 20 ; Code, § 450 ; 3 Benio, 79 ; 4 Kern. 474. But any person entitled to the possession of lands or tenements sold under execution may, until the expiration of fifteen months from the time of the sale, use and enjoy the same as follows, with- out being deemed guilty of waste : 1. He may, in all cases, use and enjoy the premises sold in like manner, and for the like purposes in and for which they were used and applied, prior to such sale, doing no permanent injury to the freehold. 2. If the premises sold were buildings, or any other erections, he may make necessary repairs thereto ; but he shall make no alterations in the form or structure thereof 3. If the premises sold were land, he may use and improve the same in the ordinary course of husbandry ; but he shall not be entitled to any crops growing thereon, at the expiration of the said fifteen months. 4. He may apply any wood or timber on such land to the necessary reparation of any fences, buildings, or erections, which may have been thereon at the time of the sale. 5. If the land sold is actually occupied by such person, he may take necessary fire-wood therefrom for the use of his family. 2 Rev. Stat. 336, sec. 22. And no person lawfully entitled to the possession of the prem- ises so sold, will be liable to such action, for doing any of the acts above mentioned. Ih. sec. 21. If the person against whose property the execution shall have been issued, or any person who may be in possession of the prem- ises sold, shall, at any time after the sale of such premises, and before the time allowed for redeeming the same, do any act of 262 REDEMPTION OF REAL ESTATE. [CH. XXVIII. waste thereon, or shall threaten or make preparations to commit waste thereon, the purchaser of such premises, or his authorized agent, may apply by petition to any justice of the Supreme Court, or to the county judge of any county, for an order restraining such wrongdoer from the commission of any farther waste upon the premises. II). sec. 23 ; Laws of 184T, p. 323. If the officer to whom the application shall be so made, shall be satisfied, by due proof, that waste has been actually com- mitted by the person against whom the application is made, or that the same has been threatened, or that preparations for com- mitting it have been made by such person, such ofiicer is required to grant an order restraining such person from the commission of any waste on the premises sold. 2 Rev. Stat. 336, sec. 24. If the person against whom any such order shall be made, shall, after the service of a copy thereof, commit any waste in violation of the said order, he shall be liable to be proceeded against and punished in the same manner as for violation of an injunction to stay waste, issued out of the Supreme Court ; and for that purpose the ofiicer who may have granted any such order, shall possess the same power and jurisdiction as a justice, of the Supreme Court. Ih. sec. 25 ; L'lws of 18i7, p. 323. When complaint shall be made of the violation of any such order to restrain waste, the court or ofiicer may order notice to be given to the person complained of, to show cause why he should not be committed, if from the circumstances of the case they shall judge such order expedient. 2 Rev. Stat. 336, sec. 26. Upon satisfactory proof of such violation, such court or ofiicer shall issue a warrant to the sheriff" of the county, reciting such order and the proof of the violation thereof, and thereby commanding such officer to commit such defendant to close con- finement, for such term of time, not more than one year, as shall be deemed expedient. li. sec. 27. The sheriff is required to execute such warrant accordingly, and to commit the person named therein, without allowing him the liberties of the jail. lb. sec. 28. But such warrai)t may be superseded, and the person may be discharged by the court or officer committing him, upon receiving a bond in such penalty, and with such sufficient sure- ties, as the court or officer may approve, to the person applying for the warrant of commitment, conditioned that the prisoner CH. XXVIII.] MORTGAGED PREMISES. 263 shall not commit any waste on tlie premises, whicli bond shall be delivered to the applicant for his use, and to be prosecuted by him for any breach of the condition thereof. Ih. sec. 29. SECTION IT. PROCEEDINGS IN ACTIONS TO REDEEM MORTGAGED PREMISES. In equity, a mortgage is a mere security for the debt, and only a chattel interest ; and until judgment of foreclosure, the mort- gagor is regarded as the real owner of the fee. The equity of redemption is deemed to be the real and beneficial estate, tanta- mount to the fee at law ; and it is accordingly held to be descend- ible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law. 4 Kent^s Com. 159. Who may redeem.'] The mortgagor, or his grantees, heirs, or devisees, in equity, are the owners of the fee, their equity of re- demption being regarded as the real and beneficial estate, and equal to the fee at law. They are entitled, therefore, at any time (within the period of limitation hereafter mentioned), before the equity of redemption is absolutely barred and foreclosed by judg- ment, to redeem the premises, and thus clear them from the incumbrance upon them. 4 KenCs Com. 162. And the equity of redemption is not only a subsisting estate and interest in the land in the hands of the grantees, heirs, and devisees of the mortgagor ; but it may also be. asserted by any other persons who have ac- quired any interest in the lands mortgaged, by operation of law, or otherwise, in priority of title ; and which interest has not been foreclosed by judgment. Ih. ; 2 Story's Eq. 291. Thus, a tenant for life, a tenant by the courtesy, a jointress, a tenant in dower in some cases, a reversioner, a remainder- man, a judgment creditor, and indeed every other person being an incumbrancer, or having a legal or equitable title or lien thereon, 264 REDEMPTION OF REAL ESTATE. [CH. XXVIII. may insist upon a redemption of the mortgage, in order to the due enforcement of their respective claims and interests in the land. Ih. And so, a wife, having an inchoate right of dower in the equity of redemption, even where the mortgage is given for a portion of the purchase-money, may, on the death of her husband, redeem the premises by payment of the mortgaged debt. 2 Bosw. 524 ; 10 Ahh. 152, s. c. 20 New Tork, 412. And a foreclosure of the mortgage in the lifetime of her husband, by a suit to which she was not a party, will not cut off her right of redemption. Id. ibid. Thus, also, a subsequent mortgagee may redeem the mort- gaged premises as against a prior one, or any person claiming under or through him, such as a purchaser at a sale under the prior mortgage where the subsequent mortgagee has not been made a party to the action. 3 Johns. Ch. R. 460. In respect to judgment creditors, subsequent to the mortgage, and persons claiming under them, the same right exists, if they are not made parties to the foreclosure suit. And a junior judg- ment creditor, not made a party to the action, may redeem from the purchaser at the sale under the judgment of foreclosure, even though he has not made his lien specific by an execution and sale upon his judgment. 6 Selden, 356 ; 3 Johns. Ch. R. 460 ; 2 Storyh Eq. Jur. § 1023 ; 4 Kenfs Com. 162. So, a junior judg- ment creditor, not notified of the sale, is not barred.by a statutory foreclosure and sale, and may redeem from the purchaser; or, the purchaser may have his action against the creditor for a strict foreclosure. 4 Paige, 58. Redemption hy part-owner ; leasehold property, c&c] The redemption must be of the entire mortgage, and not by parcels. The mortgagee has the right to insist that the whole of the mortgaged premises shall be redeemed together, and the whole debt paid. 2 Barb. Oh. Pr. 194 ; citing 12 Yes. 59 ; 2 Root, 333 ; 2 Jac. & W. 189. Where the land, however, has been sold in parcels, there may be a redemption by the owner of a portion, on payment of his ratable proportion of the mortgage debt. 16 How. 571. If the judgment creditor seeks to redeem against the mort- gagee of a leasehold estate, it being only a chattel interest, he CH. XXVIII.] MORTGAGED PREMISES. 265 mnst first have issued execution in order to create a lien on the estate. 4 Johns. Ch. E. 671 ; 3 Atk. 200. Within what time action to he commenced.'] The party en- titled to bring an action to redeem mortgaged premises, must, as a general rule, bring the action within twenty years from the time of the forfeiture, or of actual, quiet, and uninterrupted pos- session, unless such party has labored under some impediment or disability, such as infancy, or the like; in which case it may be commenced after the period of twenty years and within ten years from the time the impediment is removed ; or unless circum- stances are proved by the mortgagor, showing an acknowledg- ment of his title by the mortgagee. 1 Johns. Ch. 385, 394 ; 3 Id. 48, 129; lY Ves. 99; 19 Id. 327; 1 Paige, 48; Code, §§ 78, 88. Thus, proceedings instituted for the foreclosure of a mortgage by advertisement, under the statute, is such an acknowledgment, of the right of the mortgagor to redeem, as to repel the presump- tion arising from the lapse of more than twenty years' possession by the mortgagee. 20 New York, 147. So, if the mortgagee, in possession, shows that such possession is under and by virtue of a mortgage ; as, by receiving interest upon it, by stating an ac- count, or by treating it as such in a will, deed, or mortgage, a redemption may be adjudged against him, after the time limited for redemption has expired. 2 Barb. Ch. Pr. 199, citing Coop. 4. And oral evidence, it seems, of such acts, may be received, if clear and unequivocal. 19 Yes. 327. But the statute does not begin to run against the right of a remainder-man to redeem real estate from the mortgagee in pos- session under the termor, until the determination of the prece- dent estate. 17 Abb. 113. Nor will any length of time bar an action for redemption where there is fraud in the transaction, or where, by the agreement of the parties, at the time, the mortgagee is to enter and keep possession until he is paid out of the profits. 1 Johns. Ch. 594. Parties — 1. Plaintiffs.] If the action is brought -against a mortgagee, or his assignee, in possession, the mortgagor or his grantee, or other owner of the equity of redemption, is the proper party plaintiff. If the mortgagor be dead, then his heirs, or, if his estate has been devised, his devisee is the proper party plain- 266 REDEMPTION OF REAL ESTATE. [CH. 2XVIII. tiff, if it be a mortgage of a fee ; and if a mortgage of a term for years only, then the personal representatives of the mortgagor. Story's Eq. PI. ITO ; 2 Rev. Stat. 82. If it is claimed that a part of the mortgage has been paid in the lifetime of the mortgagor, the personal representatives of the mortgagor, as well as his heir or devisee, are necessary parties plaintiffs to the action, in order to take the account of what is due on the mortgage, 2 Barb. Ch. Pr. 196 ; or, if they refuse, they may be made defendants, the reason therefor being stated in the complaint. Ih. ; 2 Van Sant. Pr. 112. And where, by law, the personal assets are first to be applied in exoneration of the real estate mortgaged, it seems that in an action by the heir or devisee to redeem, he may properly make the personal repre- sentative of the mortgagor a party defendant, in order to have the assets so applied ; and thus to relieve himself of the burden of the incumbrance. Id. Hid. In this State, however, the heir or devisee must pay the mortgage out of his own property, with- out resorting to the personal representatives, unless the mort- gagor has given express directions in his will that the mortgage be otherwise paid. 1 Eev. Stat. 749, sec. 4. If the estate has been assigned by the mortgagor, subject to the mortgage, and the assignee is to pay the mortgage, he may maintain an action ,to redeem, without making the mortgagor a party. Though, if the assignment be of the whole estate, abso- lutely free from incumbrances, the mortgagor is a necessary, or at least proper, party defendant, in order to be bound by the judgment, and to assist in taking the account ; he being primarily liable to pay the mortgage debt. 2 Barl. Ch. Pr. 19ti. If the equity of redemption has been conveyed to assignees, or other trustees, for the benefit of creditors, they are the proper parties plaintiffs in the action. And it is unnecessary, in such case, to join the creditors as parties to the action, unless there is collusion between the trustees and mortgagee, or unless the trus- tees refuse to act, or are insolvent, in which case the creditors, or, if they are numerous, one or more of them, for the benefit of all, may bring the action, making the trustees parties defendants. Ih. ; Code, § 119. The personal representatives of a judgment creditor, and not his heirs, are the proper parties plaintiffs in an action to redeem ; and £0 in respect to any equity of redemption in a uiere chattel CH. XXVIII.] MORTGAGED PREMISES. 267 interest. But if the judgment creditor has, made his lien specific by execution and sale, his heir, and not the personal representa- tive, must bring the action. 2 Van Sant. Pr. 112 ; Story's Eq. PL 170 ; 2 Eev. Stat. 374, sec. 64. Parties — 2. Pefendants.'] In general, all persons should be made parties defendants who have or claim an interest in the controversy, adverse to the plaintiff, or who are necessary parties to a complete determination or settlement of the questions involved therein. Code, % 118. Tlie mortgagee is the only necessary and proper party in all cases where there is no other outstanding interest under him. And where the mortgagee in possession has made an absolute sale and conveyance of the mortgaged premises, the purchaser must be made a party to the action. 4 T-'at'^.?, 259 ; 18 Ahh. 360. But where the mortgage has been assigned absolutely by the mortgagee, without the authority and privity of the mort- gagor, it is unnecessary, in an action by the mortgagor to redeem, to make any person but the last assignee a party thereto, however many intervening assignments have been made; for in such a case, the last assignee is understood to have contracted not only to stand in the place of the original mortgagee, and to represent him, but also in the place and as the representative of, all the other mesne assignees, until the title was taken to himself; and he may accordingly be decreed to convey. 2 Barh. Ch. Pr. 197. If the mortgagee has not assigned his entire interest in the property, but retains an interest in part of it, he, as well as the assignee, is a necessary party to the action. 2 P. llm*. 643 ; 6 Mad. 475. So, where the mortgagee in possession leases the premises, reserving rent, he or his assignee is a necessary party to an action against the lessee to redei-m ; so that the lessee may be discharged from his covenant to pay rent, and may also have a judgment for his proportion of the redemption-money, to the extent of the value of the term over and above the rent reserved. 4 Paige, 263. If the entire interest of the mortgagee has been assigned in trust for certain purposes, the trustee and cestui que trust are both necessary parties to the action. 2 Barh. Ch. Pr. 198, and cases cited. 268 EEDEMPTION OF REAL ESTATE. [OH. XXVIII. Terms of redemption.'] The mortgagor will not be allowed to redeem without paying what is really due upon the mortgage. This payment is to be made to the mortgagee, or other party occupying his position ; and where the mortgagee had bid in the property upon a supposed foreclosure of the mortgage, and afterward had conveyed portions of it to other persons, it was held, in an action to redeem the premises, that the redemption- money should be distributed among the grantees, on the basis of their purchase-money, and in the order of the conveyances. 18 AU. 360. If the mortgagee has purchased in or discharged a prior mortgage or other incumbrance, the party redeeming must repay this, because the premises are benefited to that amoimt; and the mortgagee, in such case, as against the mortgagor, will be allowed all that is due upon the incumbrance, although he purchased it for less than its face. 2 Barb. Ch. Pr. 198. So, also, a mortgagor, seeking to redeem, will be required to repay taxes, assessments, and reasonable insurance. 13 Abh. Pr. R. 33. But, although a mortgagee in possession may require full payment of the amount due, yet, in an action against him by several plaintiifs, to obtain a redemption of premises, where the right of some of the plaintiffs is barred by the statute of limita- tions, the plaintiffs not barred are entitled to redeem their share of the land, on payment of their proportion of the debt. 17 Ahb. 113. A mortgagor, also, will be required to pay the costs of persons claiming under the mortgagee, who are made defendants in the action, upon tlic principle that, at law, the mortgage being for- feited, the mortgagee is at liberty to deal with it as his own prop- erty. 3 Mad. 255. As a general rule, too, a party redeeming will be required to pay costs to the mortgagee, in addition to the amount due upon the mortgage, although he obtains the relief demanded. 4 Paige, 58 ; Id. 526 ; 1 Id. 49. Yet if the plain- tiff's claim is resisted on a point of law which wholly fails, or is otherwise improperly resisted, or an unconscientious defense is interposed, the defendant will be refused costs, and may be com- pelled to pay costs to the plaintiff, in the discretion of the court. Id. ibid. ; 18 Abb. 360. So, a junior mortgagee seeking to redeem from a prior mortgagee who is the purchaser under his CH. XXVIII.] MORTGAGED PREMISES. 269 own judgment of sale, must pay not onlj the principal and inter- est due, but tlie costs of the judgiment of foreclosure. 30 Barl. 387. But a subsequent mortgagee, it seems, who seeks to redeem from the purchaser under a statute foreclosure of a prior mortgage, is not bound to pay the costs of such foreclosure ; which fore- closure, as to his rights, is wholly inoperative. 1 Paige, 49 ; 4 Id. 58 ; Id. 526. Nor is a judgment creditor seeking to redeem mortgaged premises after a statute foreclosure, required to pay the costs of the foreclosure. 4 Paige, 58. But he must pay the sum actually due upon the mortgage, and not merely the sum bid by the purchaser at the sale. Ih. In respect to improvements and repairs, the general rule is, that upon taking the account in an action for redemption against a mortgagee in possession, or a purchaser, he is to be charged with the rents and profits, and be allowed only for necessary re- pairs and permanent improvements, made in good faith. He will not be allowed for improvements which were not necessary ; such for example, as clearing wild land, &c., made without the ac- quiescence or consent of the mortgagor. 1 Johns. Oh. P. 385. Though where valuable and permanent improvements have been made, in good faith, by a person occupying legally the position of a mortgagee in possession, and who supposed himself to have ac- quired the absolute title, such mistake having been favored by the omission of the mortgagor for several years to assert any interest in the premises, the mortgagor, in an action to redeem the premises, will be compelled to allow the value of the improvements, though exceeding the rents and profits received. 17 B'ew YorTc, 80 ; and see 14 How. 165, s. g. 5 Abh. 16. And so, where valuable and permanent improvements have been made, in good faith, under the belief of a purchaser that his title is good, and without notice of the existence of the incumbrance under which the redemption is claimed, the enhanced value of the premises arising from the improvements vdll be required to be paid in addition to the amount due upon the mortgage. 4 Paige, 58 ; 14 How. 165, supra ; 17 Ahh. 113. All these matters come up on the account- ing, where the defendant will be charged with the rents and profits, and credited with his outlays for necessary repairs and improvements, prior incumbrances, taxes, assessments, reasonable insurance paid, &c., 2 Van Sant. Pr. 116 ; though in respect to the rents, he will be charged only with the amount actually re- 2^0 REDEMPTION OF REAL ESTATE. [CH. XSVIII. ceived, where there has been no negligence in their collection. ll. note; 13 Abh. 33. But where the larids have been sold in parcels, tinder a judg- ment of foreclosure, and a railroad company owning a portion by title subsequent to the mortgage, sought to redeem the prem- ises ; it was held entitled to do so on the payment of a ratable proportion of the mortgage debt, which must be the full value by the property (at the time of its appropriation) with interest, if need be, without respect to improvements put thereon by the company. 16 How. 571. What the plaintiff must do he/ore commencing his action.'] To entitle the mortgagor, or other party, to commence an action to redeem the mortgaged premises, he must first offer to pay the debt, interest, and costs. 18 Johns. 144, s. c. 1 Johns. Gh. 288. And if the action is against a mortgagee, or other person, in possession, who has been in the receipt of the rents and profits, and they have been sufficient to pay the principal and interest, it will not be necessary to pay or offer to pay the money, principal or interest ; but the party entitled to redeem may demand simply an accounling of such rents and profits, and settlement, which, if refused, will authorize him to bring his action, and if he can show the mortgage paid, he will be entitled to judgment for the posses- sion of the premises. 2 Van Sant. Pr. 114, citing 20 Ifew York, 14Y; Q Seld. 356. The complaint, and other proceedings in the action.] The complaint in an action to redeem mortgaged premises, is drawn according to the principles regulating other equity actions, and there are no special statutory provisions, or other peculiarities, to distinguish it from complaints in ordinary cases. The plaintiif, however, should be careful to allege his offer to pay the amount due for principal and interest, or to come to an accounting for the rents and profits, and the refusal of the defendant ; and, also, allege a demand for the delivery of the possession of the prem- ises. 2 Van Sant. Pr. 114 ; 2 Barb. Gh. Pr. 199. The prayer of the complaint is, that an accounting be had in respect to the amount due upon the mortgage ; and if the defend- ants have been in the possession of the premises, receiving the rents and profits, that an accounting also be had in respect to the CH. SXVIII.] MOETGAGED PREMISES. 271 same ; and that the- defendant be adjudged to deliver up the pos- session of the premises on payment of what shall be found due him. Id. ibid. For form of a complaint by a junior judgment creditor to redeem premises sold on foreclosure, where he was not a party to the action, see 6 Seld. 3.56 ; Vun Sunt. Pn^c. 272. In respect to the subsequent proceedings in the action, these do not differ materially from those in other equity actions. Formerly, the practice was to render a decree in the first instance, in which a reference was directed to a master to ascer- tain and report the amount due ; and directing the complainant to pay that amount within a specified time aftei' the confirmation of the report, or that the bill be dismissed. 2 Barb. Pr. 199. But now, the practice seems to be, in ease of default, to order a reference, if necessary, to take an account of the amount due upon the mortgage, preparatory to final judgment. 2 Yan Sant. Pr. 114, 115, note. And where an account of the rents and profits is part of the relief demanded, a reference is absolutely necessary, whether in case of default, or after trial of the issue. In sucli case, the reference will embrace both an accounting of the amount due upon the mortgage, and of the amount received by the mortgagee for rents and profits, to the end that upon the coming in of the report, the court may make such judgment as the nature of the case may require. Ih. ; Code, § 210, Hdb. 2. The judgment^ The judgment in ordinary cases will be that the plaintiff pay the amount which shall, on the accounting, or if th^e be no such accounting ordered, on the facts as tliey shall be proved to the court, appear to be due, and within a specified time, together -Cvith the costs, and that upon his doing so, the mortgagee or other person proceeded against, convey to him and deliver up the mortgaged premises ; and that upon default of such payment the complaint be dismissed with costs. 2 Van Sant. Pr. 115. The time allowed for redemption rests in the sound discretion of the court, to be regulated by circumstances. And, in general, the time allowed will not be afterward enlarged. 2 Barb. Ch. Pr. 200, citing 4 Johns. Gh. 140 ; lb. 65 ; 17 Ves. 417. Dismissing complaint for failure to redeem.] If the plaintiff fails to redeem within the time fixed by the judgment, the com- 272 EEDEMPTION OF EEAL ESTATE. [CH. XXVIII. plaint will he dismissed with costs; and such dismissal amounts to a bar of the equity of redemption. 2 Barb. Ch. Pr. 199. In case of siich omission, the defendant may move, as of course, to dismiss the complaint, upon an affidavit that the time has expired and the money has not been paid. Ih. Effect of redemption. '\ The party redeeming the premises from a prior mortgage, becomes sxibstituted to the rights and interests of the original mortgagee. The incumbrance is not thereby simply removed, so that he may enforce his own lien, but, as to intermediate incumbrances, he becomes vested with the estate which the person has whose interest he discharges. 2 Story's E. c. 23 How. 481 ; aff. 28 New York, 55. Though it is sufficient, it seems, if these facts are substantially alleged. 2 Abb. 29 ; but see 14 Abb. 457, 460, supra, per Ingraham, P. J. Where the proceedings were instituted by S., and the affida- vit stated that J. demised the premises, &c. ; that he afterward died, leaving S. his widow, that she became legally entitled to receive the accruing rents, and to have possession of the premises, without setting forth any fact explaining how she became enti- tled — it was held that the affidavit was not sufficienut to show her right to proceed. 6 Hill, 814. And this»is so, even though the affidavit state further that the tenant and those claiming under him " have recognized the widow's right to the premises, by paying rent to her and by other acts." lb. In another case, however, where the landlord describad himself " as trastee of the estate of A. B., deceased," that he " now owns said premises and holds said lease, as sole trustee of said estate," the court held it was a sufficient description as landlord of the premises. 2 How. 63. Nor is it necessary to state in the affidavit how the landlord acquired title to the premises. But it is sufficient if the affidavit shows that the relation of landlord and tenant was created be- tween the parties, by an agreement of hiring, and that the tenant has made default in the payment of rent after it was due, and after demand for payment thereof made. 33 Barb. 153. The affidavit should point out, too, the person intended to be removed, by name, and should show with reasonable certainty that he is in the possession or occupation of the premises, together with his relation to the landlord. 6 Hill, 314; Lai. Su,pp. to Hill (& Denio, 236 ; 24 Barb. 438. Where the affidavit stated that W. (the lessee), " or his assigns, or those claiming under him or them," held over, and it appeared that W. was not in posses- sion, but that the premises were occupied by H., it was held that the affidavit was insufficient to give the officer jurisdiction. Id. 294 SUMMARY PROCEEDINGS [CH. XXX. ibid. ; and see 14 Wend. 172. And where the proceedings are against several parties, the affidavit should show which of the persons proceeded against are tenants, and whicli of them are under-tenants. 16 Barb. 474 ; Lai. Sujyp. to Rill & Denio, 236. If the affidavit is made by the agent of the landlord, it is not sufficient that he describes himself as agent, but that fact must be distinctly sworn to. 4 Denio, 71 ; and see 3 Co7ns. 41. The affidavit should show that the tenant is holdiui;; over " without the permission of his landlord," and where it fails to do this, it is error, for which the proceedings will be reversed, 5 How. 81, 95 ; 22 Id. 183 ; and it is not enough that the affidavit sliows probable want of permission. Id. ibid. ; but see 20 Wend. 103. The affidavit, also, should give a particular description of the premises from which the defendant is sought to be removed ; and where it described the premises as being " a certain house and lot situate in the village of Penn Yan, in the town of Milo, and county of Yates ;" 'it was held that the affidavit was too general, and the proceedings were declared void. 22 How. 183. In proceeding under the statute against a tenant for the non- payment of rent, it is laid down by Cowen, J. (20 Wend. 107), that the affidavit should disclose an agreement by which the les- sors were entitled to re-enter. But it is believed that the position there taken is not sustained by the letter or spirit of the statute. It is sufficient if there has been a default in the payment of the rent, pursuant to the agreement under which the premises are held, and that a demand of the rent has been made, or notice served, requiring payment or the possession of the premises. Laws of 1849, p. 291, § 1, sub. 2 ; 16 How. 449 ; 33 JBarh. 153. The affidavit in cases of non-payment of rent should name the person of whom the rent was demanded ; but though defective in this particular, if it states that the demand was made upon the premises, it is sufficient to give the officer jurisdiction, and the defect cannot be objected to collaterally : the remedy, if any, is by certiorari or appeal. 14 Wend.Vl'ii. In cases where real estate has been sold on execution, and the party proceeded against is one who has come into possession of the land under the judgment debtor, under title derived from him subsequently to the lien of the judgment under which the sale was made, the fact that he entered under title so subse- CH. XXX.J TO EEMOVE TENANTS. 295 quently acquired must be distinctly alleged in the affidavit, or the proceedings will be void. 20 Wend. 22. The affidavit cannot be twice used. Accordingly, where a verdict was found for the tenant under the statute authorizing these proceedings, it was held that the original affidavit could not be used as the foundation of a new proceeding. And the affidavit having been so used, and the tenant turned out of pos- session, it was further held that the proceedings were void, and that trespass lay against both the landlord and judge. 8 Cowen, 68, In proceedings before a justice of the district courts in the city of New York, the affidavit must be sworn or affirmed to before, and be filed with, the clerk of the district court in the district in which the premises are situated, or his deputy. Zaws of 1863, p. 328. And, if not so sworn to, the proceedings will be void. 26 How. 166. T/i^ summons.] On receiving the affidavit, the officer is required to issue his summons, describing the premises of which the possession is claimed, and requiring any person in the possession of said premises, or claiming the possession thereof, forthwith to remove from the same,, or to show cause, before the said magistrate, within such time as shall appear reasonable, not less than three nor more than five days, why possession of said premises should n6t be delivered to such applicant ; provided, however, that in the cases where a person continues in possession of the demised premises after the expiration of his term, without permis.-ion of his landlord, the magistrate may direct such sum- mons to be made returnable on the same day. 2 Jiev. Stat. 513, sec. 30, as amended by Laws of 18ol, p. 852; and see 24 Bath. 438. Though, in the counties of New York and Kings, where the tenant holds over after the expiration of his term, the sum- mons cannot be made returnable before the day following its service, except when the term expires on the first day of May, in which case the summons may be returnable on the same day. Laws of 1866, ch. T54. If the summons is issued in a case of holding over after the expiration of the term, it may be made returnable on the same day, except as above mentioned, or on any day within the five days, in the discretion of the officer. 80 How. 93. 296 SUMMARY PROCEEDINGS [CH. XXX. The summons must be directed to the tenant or occupant by name; and, where the direction was left in blank, the pro- ceedings were held to be defective, though service was made upon the proper party. 4 Denio, 71 ; li. 185 ; 6 Hill, 314; 24 Barb. 438. And an appearance by the defendant, for the pur- pose of objecting to the summons, is not a waiver of the defect. 4 Denio, 71. But where the proceeding was instituted against two, both of whom were named in the afBdavit, and the sum- mons was directed to one of them, " and any other person in possession of the premises," and both appeared before the officer, made afiidavit, and had a trial by jury, without objecting to the summons, it was held that it was sufficient. 4 Denio, 185. For form of summons, see Appendix, No. 591. Where the proceedings are before a justice of the district courts of the city of New York, the summons must be made returnable before a justice of the court in the district in which the premises are situated; and be made returnable by the clerk of that court, at the court thereof. Laws of 1862, p. 328. How summons to he served.^ The summons must be served, either, — 1. By delivering to the tenant, to whom it shall be directed, ai ti'ue copy thereof, and, at the same time, showing him the original ; or, 2. If such tenant be absent from his last or usual place of residence, by leaving a copy thereof at such place, with some person of mature age, residing on the premises, 2 JScv. Stat. 514, sec. 32 ; or, if there be no such person residing thereon, then such service may be made by affixing such copy upon a conspicuous part of said demised premises. Laws of 1857, vol. 2, p. 509, §1- The summons may be served by any person competent to testify as a witness, and who is not a party to the proceeding. Due proof of such service is required to be made, 2 Eev. Stat. 514, sea. 33 ; and tliis proof should be by affidavit, except when the service is made by a sheriff or other officer, in which case it may be made by his return or certificate signed by him. Ih. 440, sec. 77. For form, see Appendix, No. 592. Wliere the summons was served by copy, and the only proof of such service was that the tenant was absent, and that the CH. XXX.J TO KEMOVE TENANTS. 297 copy was left with E., residing on the premises — it was held that the proof was insufficient, as not showing the tenant's ab- sence from " his last or usual place of residence," or that the copy was left with a "person of mature age." 1 Hill, 512; and see 43 Barb. 168. So, the proof is insufficient where it is alleged that the service was upon an under-tenant on the demised prem- ises, and that the tenant was absent from his last and usual residence, without stating that such residence was upon the de- mised premises. Ih. 116. If the summons is directed to the original lessee, but served only upon an under-tenant in possession, the service is insuffi- cient; it should be served upon both. 1 How. 213. What the defendant to do in certain cases.^ If the defendant holds the premises by lease or agreement from any other party than the plaintiff mentioned in the affidavit or summons, he must forthwith give notice of the service upon him of such sum- mons, to his immediate landlord. And this he is required to do, under a penalty of forfeiting the value of three years' rent of the premises so occupied by him ; which may be sued for and recovered by the landlord or person of whom such tenant holds. 1 Rev. Stat. 748, sec. 27. If the tenant do not defend, •wari'ant to issue.'\ If, at the time appointed in the summons, no sufficient cause be shown to the contrary, and due proof of the service of the summons be made to such magistrate, he is required thereupon to issue his warrant to the sheriff of the county, or to any constable or mar- shal of the city or town, where the premises are situated, com- manding him to remove all persons from the premises, and to put the applicant into the full possession thereof. 2 Rev. Stat. 514, sec. 33. For form, see Appendix, No. 393. The ottieer, to whom the warrant for delivering the possession of the premises shall be directed and delivered, is required to execute the same according to the tenor thereof Id. 515, sec. 40. Denial by defendant of landlord's affidavit.'] Any person in possession of the demised premises, or any person claiming the possession thereof, may, at the time appointed in such sum- 298 SUMMARY PROCEEDINGS [CH. XXX. mons for sliowing cause, file an afiidavit witli the magistrate wlio issued the same, denying the facts upon which the summons was issued, or any of those facts. 2 Rev. Stat. 514, sec. 34, as amended by La,ws of 1857, vol. 2, p. 509, § 2 ;• and for previous amendment, see Laws of 1849, p. 292. For form of affidavit, see Appendix, No. 594. The denial in the defendant's affidavit should be express and positive, and not circumstantial and argumentative ; no possi- bility of evasion should exist. 25 Wend. 284. Allegations in the landlord's affidavit, not denied by the defendant, will be taken as true. 2 Ahh. 29. A denial in general terms of each and every allegation contained in the landlord's affidavit will be sufficient. 42 Barb. 96. Where the proceeding was against the tenant after default in the payment of rent, and the tenant in his affidavit stated that the landlord had before commenced a similar proceeding for the non-payment of the same rent, and that the parties ap- peared, and after their proofs and allegations were heard, the magistrate gave judgment for the tenant ; it was held that the affidavit was insufficient, as it did not show what issue, or whether any, was joined, or upon what ground the judgment proceeded. 5 Seld. 227. And where two tenants were jointly charged in the affidavit of the landlord, an affidavit by one of the defendants, that the rent was not demanded of him, is not sufficient to make an issue requiring the summoning of a jury. II. ; see also post, p. 301, " What the defendant may show in defense." Adjournments.'] Any magistrate, before whom the application may be pending, may, upon the request of either i)arty, adjourn the hearing of such application, for the purpose of enabling such party to procure his witnesses, whenever it shall appear to be necessary ; such adjournment, however, shall in no case exceed ten days. 2 Eev. Stat. 515, seo. 41. Subpaenas for witnesses.] The magistrate may, also, at the request of either party, issue his subpoena, requiring any person to appear and testify before such magistrate, or before the jury, touching the matters directed by law to be heard by them ; and every person who, being served with such subpoena, shall, with- OH, XXX.] TO REMOVE TENANTS. 299 out reasonable cause, refuse or neglect to appear ; or, appearing, shall refuse to answer upon oath, touching the matters aforesaid ; shall be subject to the proceedings and penalties provided by law in similar cases. 2 Eev. Stat. 515, sec. 42. Trial of the issue, arid proceedings thereoi^.] The statute provides that, if the defendant appears and denies the facts alleged in the landlord's affidavit, or any of them, the matters, thus controverted, may be tried by the magistrate, or by a jury ; provided either party to such proceedings shall, at the time des- ignated in the summons for showing cause, demand a jury, and at the time of such demand pay to the magistrate the necessary costs and expenses.of obtaining such jury, {a) 2 Rev. Stat. 514, sec. 34, as amended by Laws of lHb7,vol. 2, p. 509, § 2; Fub. Acts, p. 65. For previous amendment, see Zaws of 1849, j?. 292, § 2. The necessary costs and expenses of obtaining the jury are the magistrate's fees for the venire, the sheriff's or constable^'s fees for the service thereof, and the fees of the jury. In order to form the jury, the magistrate with whom the affidavit is filed is required to nominate twelve reputable per- sons, qualiiied to serve as jurors in courts of record (2 Rev. Stat. 411, sec. 13), and to issue his precept, directed to the sheriff or to one of the constables of the county, or any constable or marshal of the city or town, commanding him to summon the persons so nominated, to appear before such magistrate at such time and place as he shall therein appoint, not more than three days from the date thereof, for the purpose of trying the said matters in dif- ference. 2 Rev. Stat. 514, sec. 35, as amended by Zaws of 1S49, p. 292. For form of precept, see Appendix, No. 595. Six of the persons so summoned shall be drawn in like manner as jurors in justices' courts (2 Rev. Sto,t. 243, sec. 98, &e.), and shall be sworn by such magistrate well and truly to hear, try, and determine, the matters in difference between the parties. 2 Rev. Stat. 514, sec. 36, as amended, Zaws of 1849, j?. 392 ; 1862,^. 621. (a) It was held by M'Coun, J. (1 Selden, 385), prior to the amendment of this section in 1857, where the proceedings were before a county judge, and the defend- ant liad appeared and denied the facta alleged in the landlord's affidavit, that the judge had no authority to try the issue, thus joined, without a jury. But it will be seen, by the section as amended, that the power to try^ in such case, is now given to him. 300 SUMMARY PROCEEDINGS [CH. XXX. And whenever a sufficient number of jurors, duly drawn and summoned, do not appear, or cannot be obtained to form a jury, the magistrate may order any sheriff, constable, or marshal to summon from the bystanders, or from the county at large, so many persons qualified to serve as jurors as shall be sufficient, and re- turn their names to the magistrate. li., as amended, 1862, V. 621. (a) Every person so summoned is required to attend forthwith and serve as a juror, unless excused by the magistrate, and for every neglect or refusal so to attend he will be subject to fine by the magistrate, in the same manner as is now provided by law in the case of jurors in courts of record. Ih. It would be erroneous for the magistrate to nominate more than twelve jurors, especially if the tenant object to the proceed- ing. 20 Wend. 207. If there be a default of jurors on the return of a venire, the magistrate may renew the venire until a jury appears. 9 Wend. 227. And so, also, if some of the jurors are disqualified. 7 How. 441. On the trial before a jury, neither party has any right to a peremptory challenge of any of the jurors. 1 5 Aii. 328. On the trial of the proceeding, whether tried with or without a jury, the parties may be examined in their own behalf, the same asin actions. Co&, §399, as amended, Zaiosr;/" 1860,^. 787; 1862, 2:>. 858; 1865, j?. 1290; 23 How. 313; s. c. 14^AJh. 305; though previous to the amendment of the Code this was not allowed. 19 How. 34; and see 1 Park. Or. R. 169 ; 2 Brad. 224; 16 Barb. 201 ; 1 Selden, 383; 3 Sand. 8. C. R. 665; 10 How. 83; 5 All. 212. After the evidence is closed, it is right and proper for the magistrate to charge the jury upon the law of the case. 38 Barb. 269 ; s. c. 14 All. 373. After hearing the allegations and proofs of the parties, the jury are to be kept together until they agree on their verdict, by the sherifi" or one of his deputies, or a constable, or by some proper person appointed by the magistrate for that purpose, who shall be sworn to keep such jury as is usual in like cases in courts of record. 2 Rev. Stat. 514, sec. 37. If the jury cannot agree, (a) Prior to this amendment, the magistrate had no power to summon talesmen to form a jury. 32 Ba/rb. 540, per Bonney, J. CH. XXX.J TO EEMOVE TENANTS. 301 after being kept together for such time as the magistrate shall deem reasonable, he may discharge them, and nominate a new jm-y, and issue a new precept in manner aforesaid. Ih. sec. 38. WTiat the defendant may show in defense.'] "We have seen {supra) that the defendant may answer to the affidavit of the landlord, by filing an affidavit with the magistrate, denying the facts upon which the summons issued, or any of those facts. 3 Rev. Stat. 514, sec. 34 ; and see a7ite, p. 297, " Denial by defend- ant of landlord's affidavit." Anything, therefore, which would tend to disprove those facts, or any of them, would be proper for the defendant to show in defense. He would not, however, be permitted to set up title to the premises acquired by him from a third party since the taking of his lease. 11 Wend. 016. But though the tenant cannot deny his landlord's title, yet, no doubt, in analogy to the rule which prevails in actions to recover the possession of real estate, he may show that the landlord's title has terminated either by its own limitation, or by conveyance, or by operation of law. 5 Ooioen., 124 ; 11 Wend. 621 ; 3 Barh. S. C. E. 402 ; 3 Sand. S. C. B. 664, jper Mason, J. ; see, also, 6 Wend. &QQ ; 22 Id. 121; 1 Sand. S. C. R. 517; 15 New York, 377; 16 Id. 573. In cases arising under the fourth subdivision of the statute, where land has been sold on execution, the defendant will not be permitted to inquire into the regularity and validity of the judg- ment on which the execution issued ; nor whether the sale was fraudulent ; nor whether the purchaser purchased in good faith • but it will be sufficient if the judgment and execution are regular upon their face, and the plaintiff shows a title under them. 13 Wend. 29. Proceedings when lefore a justice of the peace.] In case of proceedings before a justice of the peace, the justice is required to enter the finding of the jury, or, in case no jury is called, his final decision upon the application for the warrant, in his docket, and render judgment therefor, and include in such judgment costs of such proceedings to the prevailing party, at the same rate of fees now allowed by law in civil actions in courts of justices of the peace, and limited in like manner ; and in the warrant for delivery of possession, or by execution, issued by him, the justice 302 SUMMARY PROCEEDINGS [CH. XXX. shall direct the collection of such costs. Laws of 1849, p. 292, § 5, svh. 1. Judgment and warrant of possession.] If the decision of the magistrate, or the verdict of the jury, shall be in favor of the lessor, or landlord, or other person, claiming the possession of the premises, the magistrate is required to issue his warrant to the sheriff, or to any constable of the county in which the premises are situated, commanding such oiBcer to put the landlord, lessor, or other person, into the full possession of the premises. 2 liev. Stat. 515, see. 39, as amended by Laws of 1857, ch. 684, § 3. For form, see Appendix, No. 596. And if he refuses thus to issue the warrant after demand duly made upon him for it, he will be compelled to issue it by mandamus. 5 AUb. 206, ante, p. 58. The ofBcer, to whom the warrant for delivering the possession of the premises shall be directed and delivered, is required to execute the same according to the tenor thereof. 2 Rev. Stat. 615, sec. 40. Where the warrant is properly and regularly issued, it will protect all who act under it, unless they act willfully and mali- ciously. And therefore, where a warrant was issued in favor of an incoming tenant to remove a tenant holding over the term, the former is not liable for assisting, at the request of the con- stable, to remove the goods, if they are removed carefully, and in a proper manner ; and this, too, though the day may be rainy, and the goods are put out in the rain and thereby suffer injury. 28 How. 221. The law does not recognize the state of the weather in the execution of the warrant. / h. Effect of issuing warrant.'] The statute provides that, where a warrant shall be issued for the removal of any tenant from any demised premises, the contract or agreement for the use of the premises, if any such exists, and the relation of landlord and tenant between the parties, shall be de.emed to be canceled and annulled. 2 Rev. Stat. 515, sec. 43. Though the tenant has been removed from the demised prem- ises for non-payment of rent, yet the landlord may recover the same by action. And he may recover all the rent due up to the time of issuing the warrant. 6 Ifill, 607 ; 3 Denio, 452 ; 4 Corns. 270; 4 K D. Smith, 339; 2 Hilton, 218. But it seems that CH. XSX.] TO BEMOVE TENANTS. 303 compensation for the use of the premises by the tenant interme- diate the default and the time he is dispossessed, cannot be re- covered by action on the lease ; but the landlord's remedy is by proceeding against the tenant as a trespasser. Id. ibid. ; and see 1 Wend. 134. Where the rent was payable quarterly, in advance, it was held tliat an eviction during the quarter, but after the rent became due, did not bar an action for the rent. The most the evicted tenant could equitably claim, in such case, was a deduction for so niucli of the quarter as elapsed after his eviction. 1 Duer, 266 ; 4 Corns. 270 ; and see 1 E. D. Smith, 416 ; 2 Id. 121. The expenses of the proceedings to dispossess a tenant are recoverable from him by action. 2 Bev. Stat. 516, sec. 49 ; 4 K D. Smith, 389 ; and see 5 Sand. 249. Staying proceedings on payment of rent, i&c.'] The statute authorizes the proceedings to be stayed before warrant issued, except where the tenant holds over after the expiration of his term. It provides that the issuing of the warrant of removal shall be stayed in case of a proceeding for the non-payment of rent, if the persoij owing such rent shall, before such warrant be actually "issued, pay the rent due, and all the costs and charges of the proceedings ; or give such security as shall be satisfactory to the magistrate, to the person entitled to the rent, for the payment thereof and the costs aforesaid, in ten days. But in case the person giving such security shall not within the said ten days produce to the magistrate satisfactory evidence of the payment of the rent and costs, the warrant of removal may at any time thereafter be issued. 2 Rev. Stat. 515, sec. 44, as amended by laws of 1857, vol. 2, p. 509, § 4; 16 How. 466. For form of security, see Appendix, No. 597. Where the application is founded on the fact that the tenant or liEsee has taken the benefit of any insolvent axit, or been dis- charged under any act for the relief of his person yro?/i imprison- ment, the proceedings will be stayed, if, at any time before issuing the warrant for removal, the tenant or lessee, or his assignee, shall pay the costs of such proceedings as have been had, and give such security to the person entitled to the rent, for the payment thereof as it shall become due, as shall be satisfactory to the 304 SUMMARY PEOCEEDINGS [CH. XXX. magistrate. 2 Rev. Stat. 615, sec. 45. For form, see Appendix, N^o. 598. When the application is founded upon an alleged sale by 1 1 fcution of the premises occupied bj the defendant in such (.'xecution, the proceedings shall be stayed, if, at any time before issuing the warrant of removal, the occupant shall, 1. Pay the costs of such proceedings ; 2. File with the officer, beforfe whom the application is pend- ing, an affidavit that he claims the possession of such premises by virtue of some title or right acquired after sach premises were sold, or as guardian or trustee for any other ; and, 3. Execute a bond to the applicant for such warrant, in such penalty and with such sureties as tiie magistrate shall approve, conditioned to pay the costs which may be recovered against him in any ejectment that may be bi'ought by such applicant within six months, for the recovery of the possession of such premises ; and to pay the value of the use and occupation of such premises, from the date of such bond to the time such applicant shall obtain possession of the same by virtue of a recovery in such action of ejectment ; and also conditioned not to commit any waste or injury to such premises, during his occupation thereof. Ih. sec. 46. For forms of affidavit and bond, see Appendix, Nos. 599, 600. Redeeming the premises in certain cases.^ In case of proceed ings against the tenant for default in the payment of rent, if the unexpired term of the lease under which the premises are held exceeds five years, at the time of issuing the warrant upon such proceedings, the lessee, his assigns, or personal representatives, may, at any time within one year after possession of the demised preinises shall have been delivered to the landlord, pay or tender to the lessor, his representatives, or attorney, or to the officer who issued the warrant, all rent in arrear to the time of such payment or tender, and all costs and charges incurred by the landlord; and in such case the premises shall be restored to the lessee, who shall hold and enjoy the same without any new lease thereof, ac- cording to the terms of the original demise ; and any mortgagee of the lease, or of any part thereof, who shall not be in possession of the demised premises, or any judgment creditor of the leasee who shall, within one year after the execution of such warrant, pay all rent in arrear, all costs and charges as aforesaid, and per- CH. XXX.J TO EEMOVE TENANTS. 305 form all the agreements which ought to be performed by the first lessee, shall not be affected by such recovery ; and such judgment creditor may ille a suggestion of such payment upon the record, and may issue execution for the amount of the original judgment and of such payment. Laws of 1842, p. 293. To entitle the tenant to redeem the premises, the unexpired term of the lease must exceed five years at the time of issuing the warrant ; and this, too, although the lease contains a conditional covenant of renewal by the landlord for a further term of five years and upward, after the expiration of the first. 16 How. 461, 466. Appeal to the county court.] If the proceedings are before a justice of the peace, either party may have the same reviewed on appeal to the county court, or a writ of certiorari may be awarded by the Supreme Court, for the purpose of examining any adjudi- cation made in such proceedings ; the remedy by appeal and by certiorari, in such case, being concurrent. 11 How. 83 ; and see ^ost, " Certiorari to remove proceedings." But an appeal does not lie from the decision of a justice of one of the district courts of the city of ]N"ew York, to the Court of Common Pleas of that city. The only mode of review in such case is by certiorari, issuing out of the Supreme Court. 5 Abh. 205 ; 11 Id. 326, note ; 2 Hilton, 519 ; but see contra, 5 Ahk 61. In respect to appeals from the decision of a justice of the peace, it is provided by statute, that proceedings before a justice of the peace may be removed by appeal to the county court of the county, in the same manner, and with the like effect, and upon like security, as appeals from the judgment of justices of the peace in civil actions, except that the decision of such county judge shall be an affirmance or reversal of such judgment, and be final. But in addition to the security for such judgment as re- quired by law, in case of such appeal, in order to stay the issuing of such warrant or execution, there shall, in case of appeal by tie tenant, be security also given for the payment of all rent accruing or to accrue upon such premises subsequent to the said application to such justice. Zaws of 1849, p. 292, § 5, sub. 2. The statute further provides that no appeal will be allowed unless the security for said judgment shall be given, and ap- proved by the judge at the time of allowing such appeal, and served on the justice with the afiidavit for appeal, lb. sub. 3. Vol. II.— 20 306 SUMMARY PROCEEDINGS [CH. XXX. The practice on appeals to the county court, in these pro- ceedings, has been somewhat modified by subsequent statutory provisions. Thus, under the present practice, no affidavit is necessary to be served on the justice in order to perfect the appeal ; nor is it necessary that the appeal should be allowed by a judge of the appellate court, or other officer. See 24 Barb. 438 ; 29 How. 43. The appeal is now brought by the service, within twenty days after judgment, of a notice of appeal, stating the grounds upon which the appeal is founded. If the judgment, however, was rendered upon process not personally served, and the defendant did not appear, he has twenty days, after personal notice of the judgment, to serve the notice of appeal. li. ; Code of Pro. § 853. For form of notice, see Ajypendix, No. 601. The notice of appeal must also, within the same time, be served on the justice personally, if living and within the county, or on his clerk, if there be one, and on the respondent personally, or by leaving it at his residence, with some person of suitable age and discretion, or, in case the respondent is not a resident of such county, or cannot after due diligence be found therein, in the same manner on the attorney or agent, if any, who is a resi- dent of such county, who appeared for the respondent on the trial ; and if neither the respondent nor such agent or attorney can be found in the county, the notice may be served on the respondent by leaving it with the clerk of the appellate court, and the appellant must, at the time of the service of the notice of appeal on the justice, or on liis clerk, as herein provided, pay to such justice or clerk the costs of the proceeding included in the judgment, together with two dollars costs of the return, which shall be included in the judgment for costs on reversal. Ih. § 354 ; and see 24 Barh. 438. In order to perfect the appeal, security must be given, the same as on appeals in actions in cases where the appellant desires a stay of execution. Ih. ; and see 10 How. 87 ; 29 Id. 43 ; II). 201 ; s. c. 19 All. 334. The security is a written undertaking, executed by one or more sufficient sureties, to the effect that, if judgment be ren- dered against the appellant, and execution thereon be returned unsatisfied, in whole or in part, the sureties will pay the amount unsatisfied. Code, § 356. For form, see Appendix, No. 602. CH. XXX.] TO REMOVE TENANTS, 307 And it seems, the security must be approved by the county judge, or by a justice of the 'Supreme Court, 24 Barb. 442, supra ; but see 29 Hovj. 46, per Balcom, J., where the opinion is expressed that it may also be approved by a justice of the peace. In addition to the security on the judgment, in case of an appeal by the tenant, in order to stay the issuing of the warrant or execution, security must also be given, as we have seen, for the payment of all rent accruing, or to accrue, upon the prem- ises, subsequent to the application to the justice. li. ; and see Laws o/'1849, supra. For form, see Appendix, No. 602. A judgment debtor, whose land has been sold on execution, and who holds over and continues in possession of the premises after title thereto has been perfected under the sale, is a " tenant " within the meaning of the statute requiring security to be given on appeal. 16 Wew York, 568, 5Y4. And the word " rent " above mentioned, wliere the proceeding is between such debtor and the purchaser of his land, on execution, means compensation for the use and occupation of the premises, subsequent to the commencement of the proceedings. Ih. No appeal lies from the judgment of the county court to the Supreme Court. The judgment is final, in the sense of being ultimate and conclusive; at least, so far, as an appeal to the Supreme Court is concerned. 24 Barb. 438, supra. But an appeal may nevertheless be taken to the Supreme Court from an order of the county court dismissing an appeal taken from a judgment of a justice of the peace. 29 How. 43. The proceedings upou the appeal, subsequent to notice of appeal, security, &c.., are substantially the same as on appeals in actions. 19 Abb. 323; s. c. 29 How. 201 ; and see lb. 43; 24 Barb. 438, supra. And, therefore, where the appellant in good faith gives due notice of appeal, an omission through mistake to do any other act necessary to perfect the appeal, or to stay proceedings — e. g., the giving of security — is amendable by leave of the court. ' 19 Abb. 323, supi-a. If the tenant fails to appear, on the return of the summons, before the justice, he will thereby admit the rights of the land- lord ; and will be precluded, on the appeal, from objecting to irregularity in the proceedings. 2 Abb. 28. 308 SUMMARY PROCEEDINGS [CH. XXX. Where judgment is rendered against the tenant, and he is turned out of possession of the premises, and, on appeal, the judgment is reversed, the court has no power to restore him to the possession of which he has been- deprived by the erroneous judgment. 10 How. 83. If the tenant desires to retain pos- session, in such ease, he must give security for the payment of the rent. Ih. Certiorari to remove proceedings.] The Supreme Court is authorized to award a certiorari for the purpose of examining any adjudication made on any application authorized by the statute ; but the proceedings on any such application shall not be stayed or suspended by such writ of certiorari, or any other writ, or order of any court or officer. 2 Jiev. Stat. 516, see. 47 ; 9 Wend. 228. For form of writ, see Appendix, No. 603. It was formerly held, that on the return to a certiorari, under the above section, no other questions could be raised than those relating to the jurisdiction of the officer before whom the pro- ceedings were had, and to the regularity of such proceedings. 17 Wend. 464; 19 Id. 391; 20 Id. 103, 189. But it is now fiilly settled that the authority of the court is not limited in such case to questions of jurisdiction and regularity ; but that the court has power, also, to examine upon the merits every decision of the judge, a quo, upon a question of law, and to look into the evidence, and affirm, reverse, or quash the proceedings, as justice should require. And the court will direct the return of such parts of the proceedings as are material to the examina- tion of the case upon its merits. 23 Wend. 616 ; 25 Id. 280 ; 1 Sdden, 383; 2 Id. 309; 3 Barl. S. G. R. 391 ; 7 Hem. 154; 16 Id. 461. In the return to the certiorari, it should affirmatively appear that the statute has been strictly pursued, in the proceedings before the magistrate. 20 Wend. 207. But the tenant will be precluded from objecting to irregularity in the proceedings, on certiorari, where he has failed to appear before the magistriate on the return of the summons. 2 AUb. 28. A party who has no interest in the subject-matter of the pro- ceedings cannot have the writ. 12 Wend. 234 ; and see 42 Barh. 532. The court will not reverse the judgment as to part of the CH. XXX.] TO REMOVE TENANTS. 309 defendants and aflSrm it as to the rest. See 5 Selden, 22Y. If it is irregular as to one, it is irregular as to all of them, 11. ; and see Lai. Supp. to Hill (& Denio, 236; though where the Supreme Court reversed the proceedings as to part of the defend- ants and affirmed them as to others, the error was held not avail- able on appeal to the Court of Appeals, brought by those against whom judgment was rightfully pronounced in the Supreme Court. 5 Selden, 22Y, supra. The certiorari may be brought to a hearing by either party upon the usual notice of argument; and is entitled to preference, on the morning of any day during the first week of term. Sup. Court Rules, No. 47. The certiorari does not stay the proceedings.] The statute directs that the proceedings on the application shall not be stayed or suspended by such writ of certiorari, or any other writ or order of any court or officer. 2 Bev. Stat. 516, see. i7 ; and see 20 Johns. 80. But the certiorari, notwithstanding the statute, suspends the effect of the judgment of the magistrate in everything except what remains to be done by the magistrate himself. The magis- trate may issue his warrant to dispossess the tenant ; but, during the pendency of the writ of certiorari, his judgment is no evi- dence that the tenancy has ceased, or of a right to re-enter. And after the writ is issued, and while it is pending, the landlord can- not maintain an action for the costs of the proceedings, nor for rent accruing intermediate the forfeiture and the issuing of the warrant. 5 Sand. S. G. R. 249. Injunction staying proceedings, and for other relief hy action.] It is provided by the 4Yth section of the statute, that " the Supreme Court may award a certiorari for the purpose of examining any adjudication made on any application hereby authorized ; but the proceedings on any such application shall not be stayed or sus- pended by such writ of certiorari, or any other writ or order of any court or officer." 2 Rev. Stat. 616. Under the second branch of the above section, forbidding the proceedings to be stayed or suspended, it was held by Edmonds, J. (1 Barb. S. C. 65), that that provision operated as a prohibi- tion to a court of equity to stay the landlord's proceedings on 810 SUMMARY PROCEEDIN-GS [CH. TXX. the application to remove his tenant. But afterward, the same justice held that the statute, being inconsistent with the provi- sions of the Code of Procedure (§ 219), which authorizes an in- junction in any case where the act complained of would " pro- duce injury to the plaintiff," was repealed (§§ 468, 471) ; and ac- cordingly he denied a motion to dissolve an injunction restrain- ing the landlord's proceedings, Cure v. Crawford, 5 How. 293 ; s. c. 1 Code R., W. S., 18. See also to the same eifect, 3 Sand. S. C. R. 662 ; 1 Duer, 624 ; 16 How. 170 ; s. c. \ Bosw. 645. But see contra, 5 How. 463 ; s. c. 1 Code R., W. 8., 163, per Barculo, J., where the decision of Justice Edmonds iu Cure v. Crawford is disapproved ; and where it is held that, to authorize the issuing of an injunction under § 219, it must appear that the plaintiff is entitled to the final relief demanded according to other or pre-existing laws, independently of the Code. To the same effect is Hyatt v. Burr (8 How. 168), in the Supreme Court, first district, at special term, where it was held, that, by the true construction of the Code, an injunction cannot be granted to stay or suspend proceedings under the statute for the recovery, by summary proceedings, of the possession of prem- ises. And, per Roosevelt, J., in a note at p. 170, " I have con- sulted on this subject with two of my colleagues, with the view of establishing a uniformity of practice on a point so important to the community, as well as the profession — and they concur with me in saying that, by the true construction of the Code, an injunction cannot be granted to stay or suspend proceedings under the statute for recovering summary possession of houses or lands." And see, also, 16 Hovi. 164 ; s. c. 1 Bosw. 645. (a) But it has been held that even if the statute applies to injunc- tions, issued out of courts of equity, as well as to proceedings at (as) The Revisers, in their original note to the 47th section, 337 it is "conformable to 20 Johnson's R. 82 " (3 Rev. Stat., 2d ed. 766). That case merely decides, that the writ of certiorari will not lie to remove the proceedings until the magistrate haa finally adjudicated upon them ; and that, even then, the certiorari will not stay the writ of restitution or possession. Taking the whole of the section together, in con- nection with the note of the Revisers, it is doubtful whether it was intended by the section to do more than to declare that the proceedings before the magistrate should, in no case whatever, on account of the certiorari, be stayed or suspended — ^thus leaving the court to exercise its equitable power to restrain by injunction in all proper oases, unaffected by the statute. CH. XXX.] TO REMOVE TENANTS. 311 law, yet it can only affect cases in which the magistrate has juris- diction, and not where, by the admission of the person assuming to be landlord, he has no jurisdiction. 3 8and. S. O. R. 665, per Mason, J. ; ,s. c. 1 Code R., N'. S., 90. Il^or would the statute pre- vent a court of equity from relieving the tenant in case of fraud or surprise, James v. Stuyvesant, 8 Sand. 665, note; 1 Dvsr, 624; 16 How. 170; s. a. 1 Bosw. 645 ; nor, it seems, where he is without an adequate remedy at the common law, 2 Abb. 125, per Gierke, J. ; nor where he is prevented by means beyond his control from attending before the justice, or setting up his defense . 16 How. 461; 28 M 4; 6 Duer, 624; 16 How. 170; s. c. 1 Bosiv. 645. But the injunction will not be allowed to issue where the ten- ant has a defense to the proceedings before the justice, and does not show that he had no evidence to prove his defense, and there is no fraud or abuse shown, 11 Abh. 95 ; s. c. 21 How. 224; nor upon any ground as to which the party could have relief in a fixed statutory method, adequate to the purpose, 11 Abb. 88, per Hoffman, J. ; nor on the ground that the tenant has a claim against the landlord for damages for breach of his covenant to repair, exceeding the amount of rent in arrear. 1 Bosw. 645 ; «s. c. 16 How. 164. Nor will an injunction be issued after the warraht has been executed. 18 Abb. 199. Review by the Court of Appeals.] The decision of the gen- eral term may be reviewed by the Court of Appeals ; but such review must be had by writ of error, under the former practice, the provisions of the second part of the Code relating to appeals to the Court of Appeals not applying to this proceeding. Code, §471; 18 B'ew York, ^87 ; 19 Id. 584; 20 Id. 529; and see ante, p. 14, note h. Awarding restitution, cfic] Whenever the proceedings brought before the Supreme Court by certiorari shall be re- versed or quashed, the court may award restitution to the party injured, with costs ; and may make such orders and rules, and issue such process, as may be necessary to carry their judgment into effect. 2 Rev. Stat. 516, sec. 48. And restitution may be awarded although the lease contains 312 SUMMARY PROCEEDINGS [CH. XXX. a covenant that, upon failure to pay the rent at the time stipu- lated, the estate of the lessee and his interest in the demised premises should thenceforth cease and be absolutely void. 16 Hoxo. 450. But where the proceedings of the landlord are reversed in the Supreme Court, upon certiorari, that court will not award restitution to the tenant, if the tentn has expired before the judg- ment of reversal is rendered, 1 Corns. 450 ; nor where the rever- sal is on the ground of irregularity, and it appears that the landlord would again succeed in regularly conducted proceed- ings. 15 Ahh. 328. Nor will restitution be ordered in favor of a person not a party to the proceedings. 42 Barb. 630, 532. If there has been a restitution, and the decision upon which it was had is afterward reversed, a re-reStitution will be awarded as of course. 1 Gaines, 125 ; 10 Johns. 304. The court may give costs on the reversal of the judgment, whether restitution is awarded or not. 1 Corns. i23, per Eug- gles, J. In cases of appeal to the county court from the decision of a justice of the peace, the court has no power, upon a reversal of the justice's judgment, to award restitution of the possession of the premises to the tenant. 11 Sow. 83. Costs and expenses of' the proceedings.] In all cases of an application under the statute, the prevailing party is entitled to costs, and may maintain an action for the recovery thereof. 2 Jiev. Stat. 516, sec. 49 ; 4 ^. D. Smith, 339. The costs allowed are merely the fees of officers who are re- quired to perform the services, such as the magistrate, sheriff, constable, &c., and do not embrace any compensation to the attorney or counsel. 5 How. 21 ; 6 Jd. 178 ; 4 Sill, 541. County judges are not now entitled to fees in these proceedings. Laws of 185Y, chap. 564. To recover the costs of the proceedings on the application for the warrant, the party is limited to an action, in all cases, except where the proceedings are before a justice of the peace ; in which case the justice is authorized to include the costs in his judgment, and to direct their collection in the warrant for de- livery of possession, or by execution. Laws of 1849,^. 292, § 5, sub. 1. CH. XXX.] TO REMOVE TENANTS. 313 If a certiorari is issued before the landlord's action to recover his costs is commenced, the action will be stayed until the writ is disposed of. And, if issued while the action is pending, the cer- tiorari suspends the force of the judgment before the officer, as well as the right to recover the costs. 5 Sand. 2i9. Where the proceedings are taken by certiorari into the Su- preme Court, and reversed or quashed, costs will be awarded to the successful party, 2 Bev. Stat. 516, sec. 48 ; and this, too, whether restitution is awarded or not. 1 Corns. 420, 423. In respect to the rate at which costs are to be taxed upon certiorari, this is to be regulated by the statute in existence prior to the adoption of the Code, the second part of the Code not applying to these proceedings. Code, § 471 ; and see ante, p. 14, note h. The costs in justices' courts are : for the summons, twenty-five cents ; for precept to summon a jury, fifty cents ; and for the hear- ing, fifty cents. Laws of 1866, oh. 692. In other respects, the costs in proceedings before justices of the peace are to be at the same rate of fees allowed by law in civil actions in justices' courts, and limited in like manner. Laws of 1849, jp. 292, § 5, svib. 1 ; Laws of 1866, ch. 692. Damages on reversal of proceedings, c&c] The statute pro- vides that, in case the proceedings on the certiorari shall be reversed or quashed by the Supreme Court, the tenant or lessee may recover, by action, against the person making application for his removal, any damages he may have sustained by reason of such proceedings, with costs. 2 Jiev. Stat. 516, sec. 49. Saving of rights. ] It is also provided by the statute that nothing contained therein shall be construed to impair the rights of any landlord or lessor, or of any tenant in any case not therein provided for. Ih. sec. 50. 814 8UMMAET PROCEEDINGS. [CH. XXX, SECTION II. RECOVERY OF POSSESSION OP PREMISES DESERTED. Viewing premises ; notice to tenant.'] If any tenant, being in arrear for rent, shall desert the demised premises, and leave the same unoccupied and uncultivated, without any goods thereon subject to distress to satisfy the arrears of rent, {a) any justice of the peace of the county may, at the request of the landlord, and upon due proof that the premises have been so deserted, leaving such rent in arrear, and no goods thereon subject to distress, go upon and view the said premises ; and upon being satisfied, upon such view, that the premises have been so deserted, he shall affix a notice in writing upon a conspicuous part of the premises requiring the tenant to appear and pay the rent due, at some time in the said notice specified, not less than five nor more than twenty days after the date thereof. 2 Eev. Stat. 512, seo. 24 ; 2 Abb. 123. The subsequent proceedings.] At tjie time specified in the notice, the justice is required again to view the premises ; and, if tl)e tenant appear and deny that any rent is due to the land- lord, all proceedings shall cease. 2 Hev. Stat. 512, sec. 25. If, upon such second view, the tenant, or some one for him, shall not appear and pay the rent in arrear, and there shall not be suflicient distress on the premises to satisfy the rent, then such justice may put the landlord into possession of the demised prem- ises ; and any demise of the said premises to such tenant shall from thenceforth become void. lb. But, unless the tenant appears and denies that any rent is due, he will not be entitled to a hearing, and his lease will be annulled. 2 Abb. 123. Fees of the justice.] The justice is entitled to a fee of fifty (a) Distress for rent is now abolished. Laws of 1846, p. 369; and see ante, p. 189. CH. XXX.J OF PREMISES DESEBTED. 815 cents for each view of the premises alleged to be deserted. Laws of 1866, ch. 692. Appeal hy tenant.'] An appeal from the proceedings of any justice in such case may be made by the tenant, at any time within three months after such possession delivered, to the county court of the county, or in the city of New York to the Court of Common Pleas, by serving notice in writing thereof upon such justice, and by giving security, to be approved by such justice, to pay to the landlord all costs of such appeal which may be adjudged against such tenant ; and thereupon such justice shall return the proceedings had before him to the said court, within ten days after such notice and security given, and shall give notice to the landlord of such appeal. 2 Rev. Stat. 512, sec. 26. The appellate court shall examine the proceedings and hear the proofs and allegations of the parties, in a summary way ; and may order restitution to be made to such tenant, with costs to be paid by the landlord ; or, in case of affirming such proceedings, may award costs against the tenant. Ih. sec. 27. It is thought that the proofs and allegations intended by the statute are not the mere proofs and allegations before the justice, but that they may be new proofs and allegations, substituted or additional. 2 AVb. 124, per Gierke, J. APPENDIX OP POEMS. CHAPTEK I. FORMS IN ADMEASUREMENT OF DOWER. No. 1. PETITION FOB ADMEASTTBEMENT. See ante, Vol. I., p. 2. To the Supreme Court of the State of New York [or other court; or, To M. F., Esquire, Surrogate of the county of ]. The petition of A. B., of, &e., respectfully shows, that she is the widow of J. B., late of said town, deceased ; that she was lawfully married to the said J. B. in his lifetime, and lived and cohahited with him until his decease, on the day of 18 — ; that the said J. B., at the time of his decease and prior thereto, was seized of an estate of inheritance, of and in the fol- lowing lands and premises situated in said county, viz. : [here describe the premises] (*). And your petitioner further shows, that W. B., an infant child and heir of the said J. B., deceased, and B. B., another son and heir of said deceased, claim to be the owners of said lands and premises, as the heirs at law of the said deceased ; and your petitioner believes they are the owners of the said lands and premises, subject to your petitioner's right of dower in the same. Your petitioner, therefore, prays for an order that admeasurement may be made of the dower of your petitioner in said lands and premises ; and that three reputable and disinterested freeholders may be appointed commission- ers, for the purpose of making the said admeasurement, pursuant to the stat- ute in such case made and provided. J. S. 0., Attorney for Petitioner. A. B. 318 APPKNDIX OF FORMb. [CH. I. County of , ss. A. B., the petitioner above named, being duly sworn, Bays, That she has read the above petition, subscribed by her, and knows the contents thereof, and that the same is true of her own knowledge, except as to the matters which are therein stated on information and belief, and that as to those matters she believes it to be true. Sworn, <£c. A. B. No. 2. NOTIOB OF APPLICATION FOB ADMEABTJEEMBNT. See ante, Tol. I., p. 3. To W. B. and R. B., heirs at law of J. B., late of the town of , do- ceased, and to all others claiming a freehold estate in the lands described in the annexed petition. Take notice, that a petition, of which the annexed is a copy, will be pre. sented to the Supreme Court [or other court], at the next special term there- of, to be held at the Court House in the village of , on the day of , 18 — , at the opening of the court on that day, or as soon thereafter as counsel can be heard ; and that a motion will then and there be made, that the prayer of the said petition be granted. Dated, <£c. Yours, "Ac, A. B. J. S. C, Attorney for Petitioner. No. 3. NOTICE BT HEIES, ETC., TO WIDOW. See ante, Vol. I, p. 3. To A. B., widow of J. B., late of, &c., deceased. Take notice, tliat you are required to make demand of your dower in the lands owned by the said J. B. at the time of his decease, within ninety days after the service of this notice. The said lands are bounded and described as follows : [insert description.] Dated, die. Yours, (Sic, R. B,, <£<;. No. 4. PETITION BT HEIEB, ETC., FOB ADMEASUREMENT. See ante. Vol. I., p. [7%e petition and notice in Nb». 1 and 2, O/nte, may he modified so at to tuit this case^] CH. I.] ADMEASUREMENT OF DOWER. 319 No. 5. PETITION FOE APPOIITTMENT OF QTTAHDIAlf. See ante, Vol. I., p. 4. {Same as in No. 1 to the (*), and then proceed as follows ;] And your petitioner further shows, that W. B., of, cfec, is an infant under the age of twenty -one years, and is one of tlie owners of the lands and prem- ises aforesaid, as yonr petitioner believes ; that the said W. B. has no guardian ; and that yonr petitioner has a rightof dower in the said premises, and is desirous of obtaining an admeasurement thereof. Your petitioner, therefore, prays that some suitable and proper person may be appointed guardian of the said infant, for the purpose of appearing for, and taking care of, the interest of such infant in the proceedings. J. S. C, Attorney for Petitioner. A. B. \Add verification., as in No. 1.] No. 6. OEDBB APPOINTING OTTAEDIAN. See ante, Vol. I., p. 3. At a special term of the Supreme Court [or other court], held at the Court House in , in and for the county of , on the day of , 18—, Present, A. B. J., Justice. In the matter of the application of A. B. ■ for the admeasurement of dower. J On reading and filing the petition of A. B., widow of J. B., late of the town of , deceased, dated the day of , 18 — , showing that the said petitioner is desirous of obtaining an admeasurement of her dower inter- est in the lands and premises described in said petition, and praying that a guardian may be appointed for W. B., an Infant, and one of the owners of said premises ; It is, on motion of J. S. 0., attorney for the petitioner, ordered, that O. F. T., a freeholder of said county, be and he is hereby appointed guardian of the said W. B., for the sole purpose of appearing for and taking care of the interest of the said infant in the proceedings. 32fO APPENDIX OF FORMS. [CH. I. No. 7. OEDEE FOB ADMBASTTEEMBNT, AND APPOINTING OOMMISSIONBES. See ante, Vol, I., p. 5. At, Se. [as in No. 6]. [Title as in No. 6.] On reading and filing the petition of A. B., widow of J. B., late of the town of , in the county of , deceased, dated the •■ day of , 18 — , and the notice accompanying the same ; and also on reading and filing proof of the due service of the said petition and notice upon 0. F. T., spe- cial guardian for W. B., an infant, and upon R. B., named in said petition, and after hearing J. S. C, of counsel for said petitioner, and 0. F. T., the special guardian aforesaid, in behalf of said infant; It is ordered that admeasurement be made of the dower of the said A. B., in the lands of her husband, the said J. B., deceased, specified in said petition, and which are. therein described as follows : [i-nsert description.] And it is further ordered, that J. R. L., J. 0. B., and J. H. 0., of, <&c., three reputable and disinterested freeholders, be and they are hereby appointed commissioners, for the purpose of making such admeasurement. It is further ordered that the said commissioners report their proceedings to this court on the day of next. No. 8. OATH OF COMMISSIONERS. See ante, Vol. I., p. 5. [Title as in No. 6.] We, J. R. L., J. 0. B., and J. H. C, commissioners appointed by the Supreme Court [or other court], to make admeasurement of the dower of A. B., above named, in the premises described in the order of said court, dated the day of , 18 — , being duly sworn, do severally make oath, and each for himself makes oath and says, that he will faithfully, honestly, and impartially discharge the duty, and execute the trust reposed in him by such appointment. [Signatures of Commissioners.] Subscribed and sworn, Se. No. 9. EEPOET OF 00MMI8SI0NEES. See ante, Vol. I., p. 8. [Title as in No. 6.] To the Supreme Court of the State of New York [or other court, or, To M. F., Surrogate of the county of ]. CH. I.J ADMEASUREMENT OF DOWER. 321 The undersigned, J. R. L., J. 0. B. and J. H. C, commissioners appointed by an order of the Supreme Court [or other court, &c.] dated the day of , 18 — , to make admeasurement of the dower of A. B., above named, widow of J. B., late of the town of , in said county, deceased, in the lands and premises described in said order, and situated in the town of Aforesaid, do respectfully report, that having first been duly sworn, faithfully, honestly, and impartially to discharge the duty and execute the trust reposed in us by the said appointment, we met on the prelnises hereinafter described on the day of , to discharge the duty and exercise the trust afore- said, and as well the said A. B., and W. B., by his guardian, O. F. T., and R. B., by his attorney L. F., appeared at the time and place aforesaid [or, if they did not appear, state the fact, and that they had ieen duly notified to appear at the time and place aforesaid], whereupon the undersigned, com- missioners, caused a survey of the said lands and premises to be made, in the presence of the said parties, a map of which survey is hereunto an- nexed. And we do further report, that we have admeasured and allotted to the "aid A. B., for her dower in the said lands and premises, the one-third part thereof which part is bounded and described as follows : [insert description, containing the quantity, courses, and distances of the land admeasured and allotted to the widow, with a description of the posts, stones, and other per- manent monuments thereof] being the part designated on the said map, hereto annexed, by the letter " A." We do furtherreport that the following are the items of the charges attend- ing said admeasurement, including our fees as commissioners, viz. : Three days' services for each commissioner, at $2 per day for each, $18 00 Cash paid A. F., for two days' services as surveyor, $2 50 per day,-- -■ 5 00 Cash paid for two chain and flag bearers, two days each, at $1 per day, for each 4 00 $27 00 In witness whereof, we have hereunto set our hands, this day of , A. D. 18 — . [Signatures of Commissioners.] No. 10. NOTICE OF MOTION TO CONFIRM EBPOKT. See ante, Tol. I, p. 9. [Title as in No. 6.] Sir, — Take notice that I shall move the Supreme Court [or other court], at the next special term thereof, to be held at the Court House in , in the Vol.. IP.— 2: 322 APPENDIX OF FORMS. [CH. 1. county of , on the • day of next, or as soon thereafter as counsel can be heard, for an order confirming the report of the commissioners ap- pointed to make admeasurement of the dower of A. B., in the premises mentioned in said report ; and for such further or other order as may be just ; which motion will be founded upon the said report, a copy of which is herewith served. Dated, &e. Tours, iSco., J. S. 0., Atty. for A. B. To O. F. T., Special Guardian for W. B., and L. F., Attorney for E. B. No. 11. OEDBE OONFIEMING COMMISSIONERS' EEPOET. See ante, Vol. I., p. 9. At, tfic. [as in No. 6.] [Title as in No. 6.] On reading and filing the report of J. R. L., J. C. B., and J. H. 0., commissioners appointed to admeasure the dower of A. B., widow of J. B., late of the town of , in the county of , deceased, which report is dated the day of , 18 — , and by which it appears, among other things, that the said commissioners have admeasured and allotted to the said A. B., for her dower, the one-third part of the lands and premises described in the order appointing said commissioners, a map of which is annexed to said report ; which third part, so allotted to the said A. B., is par- ticularly described in said report, as will more fully appear by reference to' said report, and to the minutes of the court where said report is entered at large. Now, on motion of J. S. C, attorney for the said A. B., no -^fche appearing to oppose [or, and after hearing 0. F. T., special guardian for W. B., and L, F., attorney for E. B.], it is ordered that the said report and admeasure- ment be, and the same is, in all respects confirmed. No. 12. NOTICE OF APPEAL. See ante, Vol. I., p. 10. E. B. and O. P. T.,. Appellants, against A. B., Respondent. To A. B. Take notice, — That the above-named appellants appeal to the Supreme Court, from an order made by the county court of the county of CH. I,] ADMEASUREMENT OF DOWER. 323 [or, by M. F., surrogate of the county of ], confirming the report and admeasurement of J. R L., J. 0. B., and J. H. 0., commissioners ap- pointed by the said court [or, surrogate] to admeasure and set off to the said A. B. the one-third part of the lands and premises, mentioned in said report. Dated, <&c. Yours, &o., L. F., Atty. for Appellants. To A. B., Bespondent. No. 13. BOND on APPEAL. See ante, Vol. 1, p. 11, Know all men by these presents. That we O. F. T., of, ofec, and R. B. of the same place, apd S. E. C, of, <&e., are held and firmly bound unto A. B., of, &c., in the penal sum of one hundred dollars, to be paid to the said A. B., her executors, administrators, and assigns ; for which payment well and truly to be made, we bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated the day of , 18—. Whereas, the above-bounden, 0. F, T. and R. B., have this day appealed to tlie Supreme Court, from the admeasurement of the dower of the above- named A. B., lately made by J. R. L., J. 0. B., and J. H. 0., commissioners appointed by the county court of said county of [or, by M. F., surrogate of the county of ], to admeasure and set ofif for the dower of the said A. B., one- third part of the lands and premises described in their report to the said court [or, surrogate], and from an order confirming the said report and admeasurement. Now, the condition of this obligation is such, that if the above-bounden, 0. F. T. and R. B., shall diligently prosecute the said appeal, and shall pay all costs that may be adjudged by the Supreme Court against the said appel- lants, then the above obligation to be void, otherwise to remain in full force and virtue. [Signatures and Seals.] Sealed and delivered, <&c. ' [Indorse upon the bond the following certificate : The security in the within bond is approved, Dated, <&c. ; which certificate is to ie signed hy the surrogate or a judge of the court iy which the order appealed from was 324 APPENDIX OF FOEMS. ICH. I. No. 14. OKDKE OF EEVEK8AL, See ante, Vol. I., p. 12. At a general term of the Supreme Court held at the Court House in , in the county of , on the day of 18—. Present, C. L. A., A. B. J., and E. H. E., Justices. O. r. T. and E. B., Appellants, against A. B., Eespondent. On reading and filing an appeal from the admeasurement of dower made iwpursuance of an order of the county court of the county of \or, in pursuance of an order made by M. F., surrogate of tlie county of — — ], and the affidavits and report of commissioners and other papers accompanying the said appeal; and on hearing L. F., attorney for the appellants, and J. S. C, attorney for the respondent, It is ordered, that the order confirming the said report, and the admeasurementof dower therein made, be, and the same is hereby, vacated and set aside. (*) And it is further ordered that the commissioners appointed by the said court \or, surrogate], proceed to admeasure the dower of the said A. B., as in the order appointing said commissioners they were directed to do. No. 15. ANOTHER FOKM OF OEDEE OF EEVEESAL, WHERE THE EIGHT OF DOWEE IS IN MINES WHICH HAVE BEEN WORKED. See ante, "Vol. I., p. 12. 1 Cowen, 480. [Same substantially as in last form to the (*), and then proceed .•] And it is further ordered, that the commissioners proceed to assign to the said Maria her reasonable dower in the lands and tenements mentioned and dfsoribed in the order of the said surrogate. And whereas it appears that, on the premises in which dower is claimed, tliffe is a valuable iron ore ted, which J. C, the husband of the said Maria, ojiened and worked in his lifetime, and that he was the owner and proprietor of the said lands, when the said ore bed was opened and worked, as afore- said; by reason whereof the said Maria is dowablo of, and in, all such ore CH. II.] ARBITEATIONS. 325 beds on the same premises as were, in fact, opened and wrought before the death of her said husband, and wherein he Iiad an estate of inheritance dur- ing tlie coverture ; It is therefore farther ordered, that in mailing the assign- ment, the admeasurers estimate the annual value of the oi'e beds that had been opened as aforesaid, as part of the value of the estate of which the said Maria is dowable; that the admeasurers may, in their discretion, assign the dower of the said Maria, in lands set out by metes and bounds, and con- taining none of the said ore beds, or they may include any of the said ore beds, so as aforesaid opened, in the said assignment, describing them specific- ally, if the particular lands in which they lie should not also be assigned; but if those lands should be included in the assignment, the open ore beds within them need not be so described, being part nf the land itself assigned; or the said admeasurers may divide the enjoyment or perception of tlic profits of any of the said open ore beds, by directing a separate alternate enjoyment of the whole, at sliort periods, proportioned to the share each party had in the subject, or by giving the said Maria a proportion of the prof- its. In each and every case, however, the said'admeasurers are not to take into account, or assign dower of any part or portion of said ore bed opened by said A. 0., the appellant, and others, since the death of the said J. 0., nor the improvements made on the said premises by the said A. 0., and others, since the death of the said J. 0. CHAPTER II. FORMS EST ARBITRATIONS. No. 16. GENERAL StTBMISSIOlT TO ASBITKATION. See ante, Tol. I, p. 28. Whereas divers disputes and controversies have existed and arisen, and are now existing and pending, between A. B. of the town of in the county of , and 0. D. of the same place. Now, therefore, we the under- signed, A. B. and 0. D. aforesaid, do hereby mutually covenant and agree to and with each other, that E. ¥., Gr. H., and K. L., of, <£«., or any two of them, shall arbitrate, award, order, adjudge, and determine of and concerning all and all manner of actions, cause and causes of action, suits, bills, bonds, judgments, quarrels, controversies, trespasses, damages, claims, and demands whatsoever, now pending, existing, or held, by and between us the said par- 326 APPENDIX OF FORMS. [CH. II. ties. And we do further mutually covenant and agree, to and with each other, that the award to be made by the said arbitrators, or any two of them, shall in all things by us, and each of us, be well and faithfully kept and observed ; — provided that the said award be made in writing and signed by the said E. F., G. H., and K. L., or any two of them, and ready to be de- livered to the said parties in difference, or such of them as shall desire the same, on or before the day of next ensuing the date hereof. [1/ a judgment is intended to he entered on the award, in pursuance of the statute, add the following clause : And it is hereby further mutually agreed by and between the said parties, that judgment in the Supreme Court of the State of New York [or, county court of county, or other court of law and of record] shall be rendered upon the award to be made pursuant to this submission.] Witness our hands this day of , 18 — . In presence of A. B. M. N. 0. D. No. 17. BOND OF AEBITEATION. (o) See ante, Vol. I., p. 28. Know all men by these presents : That I, A. B., of the town of in the county of , am held and firmly bound unto 0. D., of the same place [or as the case may ie], in the sum of five hundred dollars, lawful money of the United States, to be paid to the said C. D., or to his certain attorney, executors, administrators, or assigns, for which payment to be well and faith- fully made, I bind myself, my heirs, executors, and administrators firmly by these presents. Sealed with my seal, and dated the , day of , a. d. 18—. (*) The condition of this obligation is such, that if the abov,e-bonnden A. B. shall well and truly submit to the decision and award of E. F., G. H., and K. L., arbitrators, named, selected, and chosen, as well by and on the part and behalf of the said A. B. as of the said 0. D., to arbitrate, award, order, ad- judge, and determine of and concerning all and all manner of actions, cause and causes of action, suits, controversies, claims, and demands whatsoever, now depending, existing, or held by and between the said A. B. and the said 0. D., so as the said award be made in writing, and signed by the said E. F., G. H. and K. L., or any two of them, and ready to be delivered to the said parties, or such of them as shall desire the same, on or before the : day of , 18 — , then this obligation to be void, or else to remain in full force and virtue. [If there is no sui mission in writing, separate from the loud, and it is in- tended to have a judgment on the award in pursuance of the statute, insert the (a) The parties shuald execute bonds to each other. The obligor in one will be tho obligee in the other. CH. II.] ARBITRATIONS. 327 following clause: And the above-bounden A. B. hereby agrees that judg- ment in the Supreme Court of the State of New York, [or, county court of county, or other court of record], shall be rendered upon the award to be made pursuant to this submission]. Signed, sealed, and delivered A. B. [l. s.] in presence of M. N. No. 18. LIKB BOND, — AWAED BY AN UMPIBE. See ante, Vol. I., p. 28. [Proceed as in last form to the asterisk (*) and then continue .•] The condition of the above obligation is such, that if the above-bounden A. B. shall well and truly submit to the decision and award of E. P. and G. H., arbitrators indifferently named, selected, and chosen, as well by and on the part and behalf of the said A. B. as of the said C. D. to arbitrate, award, order, adjudge, and determine of and concerning all and all manner of ac- tions, cause and causes of action, suits, controversies, claims, and demands whatsoever, now depending, existing, or held, by and between the said A. B. and the said 0. D., so as the said award be made in writing, signed by the said E. F. and G. H., and ready to be delivered to the said parties, or such of them as shall desire the same, on or before the day of , 18 — , (*) ; but if the said arbitrators do not make such their award of and concerning the premises by the time aforesaid, then if the said A. B. shall in all things well and truly stand to, obey, perform, fulfill, and keep the award, order, arbitrament, umpirage, and final determination of such person as the said arbitrators shall appoint as an umpire between the said parties, of and con- cerning the premises aforesaid, so as the said umpire do make his award or umpirage of and concerning the said premises in writing, signed by the said umpire, and ready to be delivered to the said parties or such of them as shall desire the same, on or before the day of— — , 18 — ; then the above obligation to be void, or else to reuiain in full force and virtue. [If a judgment is intended to he entered on the award, in pursuance of the statute, then add the following clause : And the above-bounden A. B. hereby agrees that judgment in the Supreme Court of the State of New York [or other court of record'^ shall be rendered upon the award to be made pur- suant to this submission.] Signed and sealed A. B. [l. s.] in presence of M. N. No. 20. CONDITION PBOVIDING FOE A THIRD ABBITEATOR. See ante, Vol. I., p. 28. The condition of this obligation is such, <&c., [as in last form, to the (*) — then proceed :] But if the said arbitrators do not make such their award by 328 APPENDIX OF FORMS. [OH. II. the time aforesaid, then if the said A. B. shall in all things well and ti-uly stand to, obey, perform, fulfill, and keep the award, order, arbitrament, and final determination, of and concerning the premises aforesaid, whicli eithei of said arbitrators shall make with such person as they shall appoint as an arbitrator to act with them, or one of them, in hearing and determining the said matters in controversy, so as the said award be made in writing, and signed by the said arbitrators, or any two of them, and ready to be delivered to the said parties, or such of them as shall desire the same, on or before thcs day of , 18 — , then the above obligation to be void, or else to remain in full force and virtue, c&c., [as in last form.] No. 21. aebiteatoe's oath. See ante, Vol. I., p. 31. Yon and each of you do swear that you will faithfully and fairly hear and examine the matters in controversy submitted to you as arbitrators, by and between A. B., of the one part, and 0. D., of the other part, and a just award thereof make, according to the best of your understanding. No. 22. NOTIOB OF HEAEING BEFORE AEBITEATOBS. See ante. Vol. I., p. 31. In the matter of an arbitration, of and concerning certain matters in difference between A.^B., of the one part, and C. D., of the other part. Sis : — Take notice, that the above matter will be brought to a hearing before the arbitrators appointed therein, at the office of , in the village of , on the day of , 18 — , at o'clock, in the noon of that day. Yours, &c., To 0. D. A. B. No. 23. OATH ON APPLICATION FOE A SUBPCENA. See ante, Vol. I., p. 33. Ton do swear that you will true answers make to such questions as I shall put to you, touching the necessity and propriety of my issuing a sub- poena upon your present application for the same. CH. n.J ABBITEATIONS. 829 No. 24. STTBPCBNA TO APPEAR BETOEB AEBITKA.T0E8. See ante, Vol. I., p. 33. The People of the State of New York : To O. P., Q. R., and S. T. :— You and each of you are commanded personally to appear and attend at the office of , in the village of in said county, on the day of , 18—, at o'clock, in the noon of that day, before E. F., G. H., and K. L., arbitrators, chosen to determine a controversy between A. B., on the one part, and 0. D., on the other, then and there to testify as a witness in relation thereto, before the said arbitrators, on the part of the said A. B. Hereof fail not at your peril. Given under my hand, this day of , 18 . 0. S., Justice of the Peace. No. 25. OATH OF WITNESS. • See ante, Vol. I., p. 33. You do swear that the evidence you shall give to these arbitrators [or, this arbitrator, or, this umpire], touching or concerning the matters in dif- ference submitted for their [or, his] determination and award, by and between A. B., of the one part, and 0. D., of the other part, shall be the truth, the whole truth, and nothing but the truth. [ Or, the oath may le varied, as fol- lows : You do solemnly, sincerely, and truly affirm and declare, that, <&c., as alove.] ■ No. 26. BEVOOATION. See ante, Vol. I., p. 50. To E. F., G. H., and K. L. : — Take notice, that I do hereby revoke your powers as arbitrators, under the submission made to you by C. D. and my- self, by our mutual bonds [or, agreement in writing], dated, <&c. Witness my hand and seal, (a) this , day "Of , 18 — . A. B. No. 27- NOTICE OF ESVOOATION. See ante. Vol. L, p. 50. To C. D. : — Take notice, that I have this day revoked the powers of E. F., G. H., and K. L., arbitrators, chosen to settle the matters in controversy (a) The revocation need not be under seal unless the submission was under seal. 330 ' APPENDDC OF FORMS. [CH. II, between us, by an instrument of revocation, of which see a copy below. Dated day of , 18—. Yours, &c., A. B. [Sere insert copy of revocation.] No. 28 See ante, Vol. I., pp. 33 to 40. To all to whom these presents shall come, or may concern : E. F., G. H., and K. L. send greeting. Whereas, divers suits, disputes, controversies, and differences have hap- pened and arisen, and are now depending, between A. B., of , and C. D., of , for pacifying, composing, and ending whereof, the said A. B. and O. D. have entered into a written agreement, dated the day of ■ last past, to submit the said matters to the award and final determination of the said E. F., G. H., and K. L., arbitrators, selected by the said parties, as by reference to which agreement w ill more fully appear, [or, the said A. B. and 0. D. have bound themselves each to the other in the penal sum of $ , by bonds bearing date the day of last past, with condition thereunder written, to stand to, obey, abide, perform, and keep the award, order, arbitrament, final end and determination of the said E. F., G. H., and K. L., arbitrators, selected by the said parties, as by reference to the said bonds of submission will more fully and at large appear.] Now, therefore, know ye that the said E. F., G. H., and K. L., having taken upon themselves the charge and burden of the said award, and having deliberately heard t?ie allegations and proofs of the said parties, do by these presents arbitrate, award, order, and adjudge of' and concerning the premises in manner and form following, that is to say : First. They do award, order, and adjudge that the said C. D., or his rep- resentatives, shall and do, on or before the day of next ensuing the date hereof, make and execute a good and sufficient conveyance of his inter- est as lessee for years of a certain farm in the possession of the said 0. D., situate [describe the premises], pursuant and according to the true intent and meaning of certain articles of agreement^ bearing date on or about the day of , and made between the said 0. D. of the one part and the said A. B. of the other part. Second. The said arbitrators do further award, order, and adjudge that the said 0. D., Ms executors or administrators, shall and do, on or before the day of next ensuing the date hereof, pay, or cause to be paid, unto the said A. B., his executors, administrators, or assigns, the sum of dol- lars, in full payment, discharge, and satisfaction of and for all moneys, debts, duties, due or owing unto the said A. B. by the said 0. D. upon any account whatsoever, at any time before their entering into the said agreement of sub- mission [or, bonds of arbitration] as aforesaid. CH. U.] ARBITRATIONS. 331 Third. The said arbitrators do hereby further award, order, and adjudge that all actions and suits commenced, brought, or depending between the said -A. B. and 0. D. for any matter, cause, or thing whatsoever, arising or existing at the time of, or before, their entering into the said agreement of submission [or, bonds of arbitration], shall from henceforth cease and deter- mine, and be no further prosecuted or proceeded in by them, or either of them, or by their, or either of their, means, consent, or procurement. And lastly. The said arbitrators do hereby further award, order, and ad- judge that the said A. B. and 0. D. shall and do, within the space of days next ensuing the date of this present award, seal and execute unto each other mutual and general releases of all actions, cause and causes of actions, snits, controversies, trespasses, debts, duties, damages, accounts, and demands whatsoever, for or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of the said agreement of submission [or, bonds of arbitration], as aforesaid. In witness whereof the said arbitrators have hereunto set their hands and seals, this day of , 18 — ■. [Signatures and Seals.] Signed and sealed, in presence of A. T. No. 29. AFFIDAVIT PKOVIlfG THB AWAKD. See ante, Vol. I., p. 41. County of , ss. A. T., of in said county, being duly sworn, de- poses and says : That he was present and saw E F., G. H., and K. L. sign, publish, and declare their final award and determination in writing between A. B., of, dc, and 0. D., of, dc, bearing date the day of , 18—, and hereunto annexed; that the names E. F., G. H., and K. L., subscribed to the said award, are the proper and genuine signatures of the said E. F., G. H., andK. L., and that they severally acknowledged the execution thereof; and that the said deponent set his name as a subscribing witness to the said award at the time of its execution and publication as aforesaid ; and further he says not. Sworn to, Sc. ^- T- No. 30. AFFIDATIT PKOVINO THE BOND OF ABBITKATION. See ante, Tol. I., p. 41. County of , ss. M. N., of , in said county, being duly sworn, says : That he was present and saw A. B. sign, seal, acknowledge, and deliver, as and for his act and deed, the within bond of arbitration ; that the name S82 APPENDIX OF FORMS. [CH. II. A. B., subscribed to the said bond, is the proper and genuine signature of the said A. B. ; and that the said deponent set his name as a 'subscribing witness to the same, at the time of its execution and delivery by the said A. B. as aforesaid ; and further says not. M. N. Sworn to, die. No. 31. AFFIDAVIT PEOVING THB AOEBBMENT OB' STTBMISSIOIf. See ante, ToL I., p. 41. County of , ss. M. N., of in said county, being duly sworn, de- poses and says : That he knew A. B. and 0. D., the individuals described in and who executed the within agreement of submission, that he was present and saw them sign, acknowledge, and deliver the same as and for their act and deed, and that he set his name as a subscribing witness to the same, at the time of the execution and delivery of the said agreement, as aforesaid. Sworn to, Sc. M. N. No. 32. NOTICE OF MOTIOS TO CONFIRM THE AfTABD. See ante, Vol. I., p. 41. Sfpeemb Oouet [or other court]. In the matter of an Arbitration of and con- cerning certain matters in difference be- tween A. B. of the one part and 0. D. of the other part. SiE : Take notice that I shall move the Supreme Court, at the next spe- cial term thereof, to be held at the Court House in , in and for the county of , on the day of next, at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order (*) that the award made by the arbitrators in the above matter be confirmed ; and that judgment be rendered thereon in favor of the said A. B. ; and for such fur- ther (ir other order as the court may think proper to grant, — which motions will be founded upon the agreement of submission [or, bond of arbitration], iuid proof thereof, and the award of said arbitrators, and the proof thereof. Dated the day of , 18 — . Yours, &c. L. P. C, Atty. for A. B. To C. D., above mentioned. CH. n.] ARBITKATIONS. 333 No. 33. NOTIOB OF MOTION TO VACATE THE AWAED. See ante, Vol. I., p. 42. [Asin last form to the (*) — then as follows .•] That the award made by the arbitrators in the above matter be set aside and vacated with costs ; and for such further or other order as the court may think proper to grant, — which motions will be founded upon the affidavits, with copies of which you are herewith served, and also upon the agreement [or, bond] of submis- sion, and the award of said arbitrators. The following are the grounds upon which it is sought to vacate said award: [Here set forth the irregularities complained of .] Dated the day of , 18 — . Yours, &c. J. S. C, Atty. for 0. D. To A. B., above mentioned. No. 34. NOTICE OF MOTION TO MODIFY OR OOEEEOT THE AWAED. See ante, Vol. I., p. 44. [As in No. 32, to the asterisTc (*) then as follows .■] That the award made by the arbitrators in the above matter be modified and corrected in the fol lowing particulars : [Here set forth the particulars as to which the party de- sires the award to ie modified, or corrected ; and then continue .•] and for such further or other order as the court may think proper to grant, — which mo- tions will be founded upon the said award, and the agreement [or, bond] of submission between the said parties, and also upon an affidavit, with a copy whereof you are herewith served. Dated the day of , 18 — . Tours, &c.. ' To 0. D., above mentioned. L. F., Atty. for A. B. No. 35. OEDEB OONFIEMING AWARD, AND FOB JUDOMENT, See ante, Vol. I., p. 45. At, &c. [as in No. 6.] [Title as in No. 32.] On reading and filing the award, &c. [recite the papers on which the motion is founded], and on motion of L. P. 0., of counsel for A. B., one of the parties to said arbitration, no one appearing to 834 APPENDIX OF FORMS. [CH. II. oppose [or, and on hearing J. S. 0., of counsel for C. D., the other party to said arbitration, in opposition thereto], it is ordered that the award of the arbitra- tors in this matter be, and the same hereby is, confirmed. It is further or- dered and adjudged that the said A. B. do recover against the said 0. D. the sum of dollars awarded to the said A. B. in the said award, and also dollars and cents, for his costs and charges by the court now here ad- judged to the said A. B., which said sum so awarded as aforesaid, and said costs and charges, in the whole amount to dollars. And it is further ordered that the said 0. D. execute and deliver to the said A. B. a good and sufficient conveyance of his interest as lessee for years, of a certain farm in the possession of the said 0. D., situated in the town of, Se. [describe the premises], in the manner required in and by the said award. No. 36. OEDBB VACATING AWARD. See ante, Vol. I., p. 45. At, &e. [as in No. 6 .] [Title as in No. 32.] On reading and filing affidavits and notice of mo- tion, and the award and the agreement [or, bond] of submission in the above matter, and on motion of J. S. 0.. of counsel for 0. D., one of the parties to said arbitration, no one appearing to oppose [or, and on hearing L. P. C, of counsel for A. B., the other party to said arbitration, in opposition there- to], it is ordered that the award of the arbitrators in this matter be, and the same hereby is, vacated, with dollars costs, to be paid by the said A. B. to the said 0. D. No. 37. JUDGMENT RECORD. See ante, Vol I., p. 48. Tates' PI. 813. Pleas before the Supreme Court of the State of New York, the 21st day of February, in the year of our Lord one thousand eight hundred and fifty-eight. Witness, C. L. A., Justice of the Supreme Court. County of , ss. Be it remembered that at a special term of this court, held at the Court House in the village of , on the day of February, in the year of our Lord one thousand eight hundred and fifty-eight, A. B., by L. P. C, his attorney, being in the Supreme Court of the State of New York, brings, according to the statute in such case made and provided, a cer- tain submission of matters in difference between the said A. B., of the one part, and C. D,, of the other part, to E. F., G. H., and K. L., which submis- CH. II.] ABBITEATIONS. 385 sion was made by an agreement in writing executed by the said parties, and is in the words and fignres following, that is to say [copy agreement], [or, which submission was made by bonds of arbitration executed by the said A. B., of the one part, and the said 0. D., of the other part, one of which said bonds executed by the said 0. D. is in the words and figures following, that is to say [copy the l>ond]. The said agreement [or, bond] of submission was duly proved by the affidavit of M. N., a subscribing witness thereto, in the words and fignres following, that is to say {copy affidavit]. And the said A. B. says, that after the making of the said submission, to wit, on the day of January last past, the said arbitrators met at the house kept by , in the village of , and as well the said 0. D. as the said A. B. appeared, before the said arbitrators; and the said arbitrators did then and there proceed to the hearing and examination of the matters in controversy, and of the proofs and allegations of the respective parties, and continued such heai'ing, by adjournment from time to time, until the day of February instant, on which day, last aforesaid, the said arbitrators made and signed their award in writing uader their hands and seals, in. the words and figures- following, that is to say [copy award] ; which award is duly proved by the affidavit of A. T., a subscribing witness thereto. And hereupon the said A. B. prays that the said award may be in all things confirmed, together with his costs and charges in and about the con- firmation of said award. And the said 0. D., by J. S. 0., his attorney, comes and says nothing in bar or preclusion thereof. Whereupon the matters aforesaid having been seen, and by the court now here fully understood, and mature deliberation thereupon had, I It is hereby ordered, adjudged and determined that the said award I tJ be in all things confirmed, and that the said 0. D. do execute and ■Q deliver to the said A. B. a good and sufficient conveyance of his in- ra i_r terest, as lessee for years, of a certain farm in the possession of the said I.e. D., situate in the town of, &c. [describe the premises and the order, 1 . the same as it is in the award]. GO ^ 2 And it is hereby further ordered, adjudged, and determined, that "g the said A. B. do recover, against the said 0. D., the sum of S) dollars, so awarded to be paid by the said 0. D. ; and also ■ dollars .S f and cents for his costs by him about his proceedings in g CO this behalf expended, by the court aforesaid now here adjudged sm -• to the said A. B., which damages and costs amount to dollars ^ ^ and cents. 336 APPENDIX OF FOEMS. [OH. III. CHAPTER III. FORMS ON ARREST AND BAIL. No. 38. AFFIDAVIT FOB AEBEST ; PERSONAI. IJTJUBIES TO PLAINTIFF. See ante, Vol. I, pp. 58, 7-4. Title of the caused] County of , ss. A. B., of said county, being duly sworn, deposes and says (*) : That on the day of , 18 — , at the, &c., the said defendant violently assaulted and beat this deponent, by kicking him, and knocking and throwing him upon the ground, whereby deponent was greatly injured, and was made insensible, and has since been dangerously ill ; and that this depo- nent has suffered damages by reason thereof, in the sum of dollars. Sworn, &c. A. B. No. 39. LIKE AFFIDAVIT — ACTION TO BEOOVEE POSSESSION OF PEESONAL PBOPBETT. See ante, Vol. I., pp. 64, H. [Title of the cause.] County of , ss. A. B., of said county, being duly sworn, deposes and says : Ttat on the day of , 18 — , the plaintiff was lawfully possessed of certain goods and chattels, then and ever since the property of this depo- nent, consisting of \here describe the propertyl of the value of dollars. That on the ^^ — day of , 18 — , at in said county, the defendant wrongfully took the said property from the possession of the plaintiff and still wrongfully detains the same, to the damage of the plaintiff dollars. And deponent further says, that he has commenced an action against the said defendant to recover the possession of the said property. That the said property was in the possession of the defendant at his residence in , on the day of , 18 — : That upon that day deponent applied to the de- fendant for the said property, who refused to deliver it to deponent, inform- ing deponent, that, even if he issued a requisition to the sheriff for it, on claim and delivery under the statute, deponent would not be able to find it. That, as appears by the sheriff's return annexed hereto, the said defend- ant has refused to deliver the said property to him ; and that the said sheriff has been unable to find the same. Sworn, &c. A. B. CH. III.J AREEST AND BAIL. 337 No. 40. LIKE AFFIDAVIT — DEBT FRAUDULENTLY CONTEAOTBD (d). See ante, Vol. I., pp. 65, 75. [ Title of the cause.] County of , ss. Z. I., of said county, being duly sworn, deposes and says: That on or about the day of , 18—, the defendant, who was tlien doing business in , applied to deponent to purchase goods on credit ; and; for the purpose of inducing deponent to make sales of goods to him on credit, represented to deponent that he, the defendant, had a capital in his business, paid in, amounting to twenty thousand dollars; that he had that amount of capital over and above all liabilities whatever; that he had done .1 small, but safe business, and mostly with his friends and relatives, and had not lost to exceed five hundred dollars since he commenced business in 18 — . That lie wanted to purchase goods of the plaintiif on a credit of eiglit months, and could and would pay for the same when such credit had expired. Deponent further says, that thereupon, relying upon the representations so made by the said defendant, and solely induced thereby, he sold and deliv- ered to the defendant a bill of goods amounting to dollars on a credit of eight months. And that subsequently, relying upon the like representa- tions which were repeated to deponent, this deponent sold to the defendant other goods, as follows : On the day of , 18 — , upon a credit of eight months, goods ofthe value of $3,376 50 On the day of , 18 — , upon a like credit, goods of the value of 560 00 [Continue in same way with the several sales.] That the said defendant gave to the plaintiff his notes for the amounts or said purchases as follows: On the day of , 18 — , note for dollars, payable in eight months from date. * On the day of , 18 — , note, &c. [Continue in same form with the different notes.] Deponent further says, that one of said notes, that first above mentioned, has become due and payable, but the same has not been paid nor any part thereof; nor have any of said notes been paid, or any part of them. And deponent further says, that the representations made as aforesaid by the defendant were, and each and every of them was, as deponent is in- formed and believes, untrue. That the defendant, on the day of last, and since the purchase of said goods, made a general assigniilent of his property, with preferences. That, after hearing of said assignment, deponent made inquiries in reference to the pecuniary condition of the said defendant at the time of, and before, (a) This form is taken from an actual cast. Vol. II.— 22 338 APPENDIX OF FORMS. [CH. II. his failure ; and that deponent was informed, and believes, that, at the time of the making of the representations above mentioned, the defendant was in fiict insolvent. That the said defendant did not have in the month of last, and has not sinoe had, capital invested in his business to an amount exceeding five thousand dollars ; and that the defendant owed debts at that time to an amount greater than the said capital ; and that said defendant knew that such was his pecuniary condition at the time the said representations were made. Sworn, (ic. Z. I. [Note. — The matters stated in the above affidavit on information and be- lief should be corroborated by the affidavits of persons having knowledge on the subject; or facts and circumstances should be given tending to establish the truth of those matters.] No. 41. LIKE AFFIDAVIT MONEY KEOEIVED IN A FIDUOIABT OAPAOITY. See ante, Vol. I., pp. 60, 74. [Title of the cause.] County of , ss. G. S., of , in said county, being duly sworn, de- poses and says: That on or about the day of -, 18 — , the defendant called upon him at his store in , and stated to deponent that he had heard that deponent desired to borrow some money, and if so, that he, the defend- ant, could and would procure a loan for him upon his, deponent's, own notes. That deponent, desiring to borrow the sura of one thousand dollars, thereupon entered into an engagement with the defendant, whereby the said defendant was to procure one thousand dollars for deponent upon deponent's note, and was to receive, for his services in effecting such loan, the sum of twenty-five dollars. That deponent thereupon delivered to the defendant his, deponent's, note for $1,000, dated the day of -, 18 — , and payable to deponent's order in three months from date with interest, at the bank, and indorsed by deponent. That the defendant received the said note, promising to negotiate the same, if possible, for deponent, and to bring the money to deponent, after deducting his commission, as aforesaid. And deponent further says, that afterward, and on or abont the day of , 18 — , the said defendant negotiated the said note, delivering and transferring it to 0. W. B., of , who paid to said defendant tht! full amount thereof. That deponent, on the day of , 18 — , caused a demand to be made nf said defendant for the moneys so received by him on said note; but the said defendant refused to pay the same, or any part thereof. Nor has the defendant ever paid the said moneys or any part thereof to this deponent; but has converted the same to his own use. Sworn, Sc. G. S. CH. in.] ARREST AND BAIL. 339 No. 44, tJNDEETAKING OK AERE8T. See ante, Vol. I., p. 77. [Title of the cause.] Whereas, A. B., plaintiff above named, has made application to one of the justices of the Supreme Court [or as the case may ic] to arrest the above named 0. D., in an action for money received by the said 0. D., in a fiduciary capacity [or otherwise as the case may ie]. Now, therefore, we, the above-named A. B., of, on contract, or for wrongful contersion of property]. (*) And deponent further says, Tiiat the said defendant does not reside in tht State of New York ; but resides in , in the State of , [or other facts, bringing the case within one of the classes in which an attachment may he issued]. Sworn, &c. A. B. No. 57. LIKE AFFIDAVIT AGAINST A FOEBIGN CORPOEATION. See ante, Vol. I, pp, 98. 99. [Same as in last form to the asterisk (*) and then as follows :] That the defendant is a foreign corporation created under the laws of the State of , having its place of business in in that State. That the plaintiff resides at , in the State of New York [or. That the 344 APPENDIX OF FORMS. [CH. IV. cause of action, above mentioned, arose in this State ; or, Tiiat the subject of the action is situated within this State]. No. 60. UNDERTAKING ON ATTACHMENT. See ante, Vol. I., pp. 107, 108. [Title of the cause.] The above-named plaintiff, A. B., having applied to one of the justices of this court [or, to J. P., Esq., county judge of the county of ,] for a war- rant of attachment against the property of the defendant, 0. D., on the ground that the said defendant is a non-resident of this State [or other cause]. Now, therefore, we, , of, Sc, farmer, and , of <&c., merchant, do undertake, pursuant to the statute in such case made and provided, in the sum of dollars, that if the said defendant recover judgment in this action, or the said attachment be set aside by the order of tlie court, the plaintiff will pay all costs that may be awarded to the defendant, and all d.amages which the defendant may sustain by reason of the said attachment, not exceeding the sum above mentioned. [Signatures of sureties.] [Add affidavit of sureties and acTcnowledgment as in No. 44.] No. 61. WAEEANT OF ATTACHMENT. See ante, Vol. I., p. 108. The People of the State of New York, to the Sheriff of the County of Whereas, an application has been made to the undersigned by A. B.. plaintiff, for a warrant of attachment against the property of C. D., defend- ant; and it appearing by aflBdavit that a cause of action exists against the said 0. D. for the sum of dollars, and in which the grounds of said action are stated, and that the said 0. D. is a non-resident of the State of New York [or, has departed from this State with intent to defraud his cred- itors ; or as the ease may be] ; and the' said plaintiff having given the under- taking required by law : You are hereby required forthwith to attach and safely keep all the prop- erty of the said defendant, C. D., within your county, or so much thereof as may be sufficient to satisfy the said plaintiff's demand of dollars, to- gether with all costs and expenses, and that you proceed hereon in the man- ner required of you by law. Witness, W. H. L., one of the justices of the Supreme Court [or, county judge of the county of ], at the, dc, this day of , 18—. S. T. F., Attorney. "VV. H. L. OH. IV.J ATTACHMENTS UNDER THE CODE. 345 No. 61. (A). SHEKIFF'a EETTJEN, — INDOESED ON ATTAOHMBNT. See ante, Yol. I., pp. ]09 to 117. Oounty of , ss. : I, J. K., sheriif of said county, do hereby certify and return that, by virtue of the within attachment, I have seized and talien into my possession the property of the defendant within named, specified in the inventory liereto annexed, and have appraised the property therein specified at the sums stated in the said inventory. Dated, Sc. J. K. No. 62. INVENTOBY OP PEOPBETT ATTACHED. See ante, Vol. I., p. 115. [Title of tJie eav.se.'] I, J. K., sheriff of the county of , and L. F. arid G. E., two disinter- ested freeholders in said county, hereby certify that the following is a just and true inventory of all the property seized by me, the said sheriff, on a warrant of attachment, issued in tlie above- entitled action, by W. H. L., a justice of the Supreme Court [or, county judge of county], together with a statement of the books, vouchers, and papers taken into the custody of said sheriff by virtue of said warrant, and the value of each article of per- sonal property — and also a true statement of such articles thereof as are perishable, as the same has been appraised by us, viz. : [Insert list of prop- erty, with the value of each item.] We do further certify that the following property mentioned in the said inventory is perishable, viz. : [state it]. Dated, t&c. [Signatures. No. 63. OEDEE DIEKOTING SALE OF PEEISHABLE PEOPEHTT. See ante, Vol. I., p. 116 [Title of the cause.] It appearing to me by the inventory made under the warrant of attach- ment granted by me in this action, that the following property mentioned in said inventory is perishable, viz. : [list of property]. It is, therefore, ordered that the said property be sold by the said sheriff, at public auction, at such time and place as he shall deem advisable, within 346 APPENDIX OF FORMS. [CH. IV. tlie city [or, town] of ; and that the said sherift give notice of such sale as on the sale of personal property on execution. It is further ordered that the proceeds of snch sale be retained by said sheriff, and disposed of in the same manner as the property, if the same had not been sold. Dated, Sc. W. H. L., Justice, &c. No. 64. NOTICE OF LEVY ON PEOPBETT NOT CAPABLE OF MANITAI. DELITEET. See ante, Vol. I., p. 114. [Title of the cause,'] To E. F. : — Take notice, tliat by virtue of a warrant of attachment issued in this action, a certified copy of which is herewith served upon and left with you, I have levied upon and do hereby levy upon, your indebtedness, amounting to dollars, or thereabouts, to the defendant above named, &c. [describing^ as particularly as possible, the property levied upon]. Dated, de. Yours, &c., J. K., Sheriff. [A certificate to be indorsed on copy of warrant as follows .•] I, J. K., the sheriff within mentioned, do hereby certify that the within is a true copy of the warrant of attachment in ray possession, issued in this action, and of the whole thereof Dated, &c. J. K., Sheriff. No. 66. OEDEE DIEEOTINO THIRD PEESON TO APPEAR AND BE EXAMINED. See ante, "Vol. I., p. 117. 2 Abb. Forms, 32. [Title of the cause.] It appearing to me by the certificate of J. K., sheriff of the county of , that the said slieriff, with a warrant of attachment against tlie property of 0. D., the defendant in this action, has applied to O. P., for the purpose of levying upon property of said defendant held by said O. P. [or, a debt owing to the defendant by said 0. P.], and tliat the said O. P. refuses to furnish tlie said shi-riff with a certificate designating the amount and description of the property held by said O. P. for the benefit of the defendant [or, the amount of the debt owing by said 0. P. to the defendant], I hereby order and require the said 0. P. to attend before me at , on the day of , 18 — , at — — o'clock a. m., and be examined on oath concerning the same. Dated, <£c. [Signature of judge.] CH. IV.] ATTACHMENTS UNDER THE CODE. 347 No. 68. NOTICE OF MOTION TO VACATE ATTACHMENT. See ante, Vol. I., p. 118. [Title of the cause.] Take notice, that I shall apply to the next special term of this court, to be held at the Court House in • ■, on the day of , 18 — , at 10 o'clock A. M., at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order vacating and discharging the attachment issued in this action [if jfor irregidarityyadd], upon the ground that tfec. [specifying the irregularity con/plained of] ; and for such further or other order as may be just, with the costs of the motion — which motion will be founded upon the affidavit, with a co])y of which you are herewith served, and upon the plead- ings and other papers in this action. Dated, d-e. J. W. ¥., Att'y for Defendant. To A. N. W., Esq., Att'y for Plaintiff. No. 69. NOTICE OF MOTION TO DISOHAEOB ATTACHMENT, ON GIVING SEOUEITT. See ante, Vol. I., p. 120. [Title of the cause.] Take notice, that I shall apply to the next special tei-m of this court, to be held at the Court House in [or, to the Hon. W. H. L., Justice of the Supreme Court, or as the case may he], on the day of , 18 — , at 10 o'clock A. M., for an order discharging the attachment in this action, on giving security according to law. Dated, &c. J. W. F., Att'y for Defendant. To A. N: W., Esq., Att'y for Plaintiff. No. 70. UNDERTAKING ON DISOHAEGB OF ATTACHMENT. See ante, Vol. I., p! 120. [Title of the cause.] Whereas the property of the above-named C. D. has been levied upon by virtue of a warrant of attachment issued in this action; and the defendant desires a discharge of said attachment on giving security according to law. Now, therefore, we, J. L., of, &c., merchant, and J. K., of, &c., broker, do undertake that, if the said attachment be discharged, we will, on demand. 348 APPENDIX OF FOEMS. [CH. IV. pay to the plaintiff the amount of judgment that miiy be recovered against CD., the defendant in the action, not exceeding dollars [at least douMe the amount claimed hy the plaintiff in his complaint]. Dated, &c. J. L., In presence of J. K. E. S. {Add affidavit of sureties, acknowledgment, &c., as in No. 44.] No. 71. OEDBE VACATING ATTACHMENT ON MOTION. See ante, Vol. I., p. 118. At a Special Terra of the Snpreme Court \or other court], held at the Court House in , on the day of , 18-. Present : W. H. L., Justice, &c. [ Title of the cause.] On reading and filing the affidavit of 0. D., defendant above mentioned, and notice of motion to vacate the attachment in this action, and after hear- ing J. W. F., Esq., of counsel for the defendant, and A. N". W., Esq., of coun- sel for the plaintiff. It is ordered, that the attachment issued in this action on the day of , 18 — , be and the same is hereby vacated and discharged ; and that any and all proceeds of sales and moneys collected by the said sheriff, and all the property attached now in his possession, be paid and delivered to the said defendant or his agent, and he be released from said attachment. [It is further ordered, that the said plaintiff pay to the defendant dollars, costs of this motion.] No. 73. OEDEE VACATING ATTACHMENT, ON SECUEITY BEING GIVEN. See ante, Vol. I., p. 120. At, &c. [as in No. 6], [Title of the cause.] ' The defendant having appeared in this action, and applied to the court to discharge the attachment on giving security to pay the judgment obtained by the plaintiff in the action ; and the said defendant having delivered to the court an undertaking in the form prescribed by § 241 of the Code of Pro- cedure, and which has been approved by the court. It is therefore ordered that, &c. [conclude as in last form, omitting the clause as to costs.] CH. IV.] ATTACHMENTS UNDER THE CODE. 849 No. 73. BXBOUTION TO SHERIFF WHO MADE THE LEVY UNDER THE ATTACHMENT, BUT WHO HAS SINCE GONE OUT OF OFFICE. See ante, Vol. I., p. 124. The People of the State ot New York, To J. K., late Sheriff of the County of . Whereas, in pursuancce of a warrant of attachment, dated the day of , 18 — , issued out of the Supreme Court [or other court] against the property of 0. D., in an action pending in said court, wherein A. B. was plaintiff and the said C. D. was defendant, and delivered to J. K., then sheriff of said county, the following property, the property of the said de- fendant, was, on the day of , 18 — , duly levied upon, and taken into the custody of the said J. K., viz. : [set forth the several items of property], which property amounted in value to the sum of dollars ; And whereas, judgment was rendered in said action on the day of — — , 18 — , in favor of the said A. B., against the said C. D., for the sum of dollars, as appears to us by the judgment roll filed in the office of the clerk of the county of ; and whereas, the said judgment was docketed in your county on the day of , 18 — , and the sum of dollars is now actually due thereon ; Therefore we command you that you satisfy the said judgment out of the property so attached as aforesaid, by the sale of said property, or so much thereof as shall be sufficient to satisfy the said judgment; and if a suf- ficient sum be not realized therefrom, then that you satisfy the said judgment out of other personal property of the said judgment debtor within your county, or if sufficient personal property cannot be found, then out of the real property in your county belonging to the defendant on the day when the said judgment was so docketed in your county, or at any time thereafter, in whose hands soever the same may be, and return this execution, within sixty days after its receipt by you, to the clerk of said county. Witness, 0. R. I., one of the justices of the Supreme Court [or, county judge of the county of ], at the city of , the day of , 18 — . A. N. W., Att'y for Plaintiff. 350 APPENDIX OF FOEMS. [CH. T, CHAPTER V. FORMS IN CLAIM AND DELIVERY OF PERSONAL PROPERTY. No. 76. AFFIDAVIT UNDBK § 207 OF THE CODE. See ante, Vol. I., p. 134. [Title of the cause.] County of , ss. A. B., the above-named plaintiff, being dul^ sworn, deposes and says : That the plaintiff is the owner and entitled to the immediate possession of the following described propei-ty, now in the possession of the defendant, at , viz. : [descrile the property particularly]. That the said property is wrongfully detained by C. D., the defendant above named. (*) That the alleged canse of the detention thereof, according to deponent's best knowledge, information, and belief, is as follows: [state it, as, That said property was purchased by the defendant of the plaintiff in the city of New York, on the day of , 18 — , and that the defendant is the lawful owner of the same]. That the said property has not been taken for a tax, assessment, or fine, pursuant to a statute ; or seized under an execution or attachment against the property of the said plaintiff. That the actual value of the said property is the sum of dollars. Sworn, (fee. A. B. No. 77. LIKE AFFIDAVIT — PKOPEHTY CLAIMED TO BE EXEMPT FEOM EXKOUTION. See ante, Vol I., p. 1 34. [Same as in last form to the asterisJe (*) and then proceed.] That the said property has not been taken for a tax, assessment, or fine, pursuant to a statute ; or seized under an execution or attachment against the property of the said plaintiff, except as hereinafter mentioned. Tliat the said 0. D. is the sheriff of the county of , and as such sheriff claims to have levied upon the said property, under an execution said to have been issued against the property of the plaintiff; which is the CH. v.] CLAIM AND DELIVEKY. 351 alleged canse of the detention of said pi-operty, according to deponent's best knowledge, information, and belief. That the i)laintift' is a lionsebolder and resides in this State ; and the said property is a part of his necessary household furniture, the whole value of which was less in the aggregate than dollars, besides tlie property specitically is exempt from execution under the Revised Statutes, and that the said property, so seized by the said 0. D,, is exempt by law from levy and sale on execution, as deponent is advised by counsel and verily believts [nr That the plaintiff is a householder, residing in this State, and is by occupation a carpenter ; and that the property above mentioned are the working tools of the plaintiff, necessary to the carrying on of Ids said business]. That the actual value of the said pi-operty is the sum of dollars. Sworn, Sc. ^, B_ No. 78. REQUISITION TO BE INDOKSED ON AFFIDAVIT. See ante, Tol. I., p. 135. To the Sheriff of the County of SiE : — Yon are hereby requii-ed to take the property within mentioned from the defendant, and deliver the same to the plaintiff in this action. Dated, t&c. A. N. W., Attorney for Plaintiff. No. 79. UNDEKTAKING BY PI-AINTIFF's SURETIES. See ante, Tol. I., p. 135. [Title of the cause.] Whereas, A. B., the plaintiff in this action, has made an affidavit that the defendant therein wi'ongfully detains certain personal property in the said affidavit mentioned, of tlie value of dollars; and the plaintiff claims the immediate delivery of such property, as provided for in the second chapter, of the seventh title, of the second part of the Code of Procedure. Now, therefore, in consideration of the taking of said property, or any part thereof, by the sheriff of the county of , by virtue of the said affidavit, and the requisition indorsed thereupon by the plaintiff's attorney, we, the undersigned, E. F., of No. Street, in the city of New York, merchant, and G. H., of No. Street, in said city, broker, do hereby undertake and become bound to the defendant in the sum of dollars [double the value of the property as stated in the affidavit] for the prosecution of this action, and for the return to the defendant of the said property, or so much thereof as shall be taken by virtue of the said affidavit and requisition indorsed thereupon, if a return thereof shall be adjudged; and for the pay- 352 APPENDIX OF FORMS, [CH. V. raent to him of such sum as may, for any cause, be recovered against the plaintiff in this action. [Signatures of sureties.] Signed and delivered in presence of J. K. [Add affidavit of sufficiency of sureties, and acTcnowledgment or proof as in No. 44.] APPEOVAL BY SHEEIFF, INDOEBED ON IINDEETAKIN&. I approve of the within undertaking, both as to its form and the sufiBoiency of the sureties therein. No. 80. NOTICE OF EXCEPTION, AND OF JUSTIFICATION OF SUEBTIES. See ante, Vol. I., p. 137. [Same as ante, Nos. 49 and 50.] No. 81. DNDEETAKIN& BT DEFENDANT TO OBTAIN A EETUEN OF PEOPBKTT. See ante, Vol. I., p. 138. , [Title of the cause.] Whereas, the plaintiff in this action has claimed a delivery to him of certain personal property, specified in the affidavit made on his behalf for the purpose of obtaining such delivery, which property is alleged to be of the value of dollars ; and, whereas, the said plaintiff has caused the said property to be taken by the sheriff of the county of , pursuant to the second chapter, of the seventh title, of the second part of the Code of Pro- cedure, but the same has not yet been delivered to the plaintiff; and, whereas, the defendant is desirous of having the said property returned to him : Now, therefore, we, the undersigned, L. M., of No. Street, in the city of , merchant, and N. 0., of No. Street, in said city, merchant, for the procuring of such return, and in consideration thereof, do hereby undertake and become bound to the said sheriff in the sum of dollars [douile the value of the property as stated in the plaintiff ''s affidavit] for a delivery of the said property to the plaintiff, if such delivery shall be adjudged, and for the payment to him of snch sum as may, for any cause, be recovered against the defendant in this action. Signed and delivered in [Signatures of sureties.] presence of P. E. [Add affidavit of sufficiency of sureties, and acknowledgment or proof, as in No. 4A. ] CH.'V.] CLAIM AND DELIVERY. 853 No. 82. NOTICE BEQTJIIUNG RETURN OF PBOPEETT TO DEFENDANT. See ante, Vol. I., p. 138. To the Sheriff of the County of Sir : — You are hereby required to return to the defendant the personal property taken and held by you in this action. Dated, &e. J. W. F., Att'v for Defendant. No. 83. AFFIDAVIT OF CLAIM OF THIRD PERSON. See ante, Vol. I., p. 140. [Title of the cause.'] County of , ss. R. S., of in said county, being duly sworn, de- poses and says: That he is the sole owner of certain personal property in the possession of the sheriff of the county of , and taken by him in this action, which property is described as follows : [describe the property]. That deponent purchased the said property of the defendant on the day of , 18 — , paying for the same the sum of dollars, and that he has not sold or disposed of the said property, or any part thereof. Sworn, &c. E. S. No. 84. NOTICE TO SHERIFF — CLAIM OF THIRD PEE80N. See ante. Vol. 1., p. 141. To the Sheriff of the County of . Sir : — You will please take notice that I claim the personal property men- tioned in the within affidavit [or, the affidavit annexed hereto], and that you are required to deliver the same to me. Dated, &e. R. .S. No. 85. sheriff's NOTICE TO PLAINTIFF CLAIM OF THIRD PERSON. See ante, Vol. L, p. 141. [ Title of the cause.] To A. N. W., Attorney for Plaintiff. You will please take notice that R. S. claims the property taken by me in this action, and that, unless the plaintiff indemnifies me against such claim, I shall not keep the property or deliver it to the plaintiff. Dated, &e. J. K., Sheriff. Vol. IL— 23 354 APPENDIX OF FORMS. [CH.'V. No. 86. TJNDEKTAKINQ BY PLAINTIFF TO SHERIFF — ClAIM OF THIBD PERSON. See ante, Vol. I., p. 141. [Title of the cause.] Whereas, the plaintiff claims to own the following property now in the possession of the sheriff of the county of , and taken by him in this action ; and one E. S. claims to have title thereto, and the right to the pos- session of the same: Now, therefore, we, the undersigned, E. F., of No. Street, in the city of , merchant, and G. H., of No. ■ Street, in said city, broker, un- dertake to indemnify the said sheriff against the claim of the said E. 8. if the said property be delivered to the plaintiff. Signed and delivered [Signatures of sureties.'] t in presence of J. K. AFFIDAVIT OF STTrFIOIENOT. County of , ss. E. F. and G. H., the sureties in the within undertak- ing, being duly^and severally sworn, each for himself, says, that he is worth dollars [douMe the value of the property as stated in the plaintiff^s affi- iamt\ over all his debts and liabilities, and exclusive of property exempt from levy and sale on execution ; and that he is a householder and freeholder in the county of . Sworn, &c. [Signatures.] [Add acknowledgment or proof in the usual form. See No. 44.] No. 87. AFFIDAVIT TO RECOVER POSSESSION OF PERSONAL PROPERTY — ACTION IN JUS- TICE'S COURT. See ante, Vol. I., p. 146 [Title of the cause.] County of , ss. A. B., of, Sc, plaintiff herein, being duly sworn, de- poses and says : That he is the owner, or entitled to the immediate possession of the fol- lowing described property now in the possession of C. D., the defendant, viz. : [descriie it particularly]. That the said property is wrongfully withheld or detained by C. D., the defendant above named. That the cause of the detention or withholding of said property, accord- CH. V.J CLAIM AND DELIVERY. 355 ing to the best knowledge, information, andbelief of deponent, is as follows: [state it, as, That tlie said property was purchased by the said 0. D., of deponent, on the day of , 18—, and that the said 0. D. is the lawfnl owner of the same, or as the ease may ie]. That the said property has not been taken for any tax, fine, or assessment, pursuant to statute, or seized by virtue of an execution or attachment against the property of said plaintiff. That the actual value of said personal property is the sum of dollars. Sworn, <&c. A. B. No. 88. UNDEETAKING BT PLAINTIFf's SnBBTIES — IN JITSTIOEs' COUKTS. See ante, Vol. I., p. 146. [Title of the cause.l Whereas, it appears by an affidavit made by A. B., the plaintiff, on the day of , 18 — , that 0. D., the defendant, wrongfully withholds and detains from him certain personal property in said affidavit described, of the value of dollars; and the said A. B. claims the immediate delivery of such property, as provided for by chapter 131 of the Laws of 1860, Now, therefore, in consideration of the taking of said property, or any part thereof, by any constable of the county of , by virtue of the said affidavit, and the requisition indorsed thereupon, we, the undersigned, N. E., of the town of , in said county, farmer, and B. C, of the same place, merchant, do hereby undertake and become bound to the said 0. D. in the sum of dollars [double the "oalue of the property as stated in the affidavit} for the prosecution of the action to recover the possession of said property, and for the return of said property to the said 0. D. if return thereof be adjudged ; and for the payment to him of such sum as may for any cause be recovered against the said A. B., plaintiff in said action. Signed and delivered [Signatures of sureties.] in presence of W. B. B. [Add affidavit of sufficiency of sureties, and acknowledgment or proof, at in No. 44, ante.} No. 89. EEQTJISmON, TO BB INDOESBD ON AFFIDAVIT. See ante, Vol. I., p. 147. [Title of the cause.] To any Constable of the County of . Tou are hereby required to take the property within described from tlie defendant, C. D., and keep the same, to be disposed of according to law. Dated, c. [state the general character of the same.] And that by rea- son of such losses its stock, property, and effects have been so far reduced that it will not be able to pay all just demands to which it is liable; and that it cannot afford a reasonable security to those who may deal with the said company [orstate any reason to show that a dissolution will he ieneficial to the interests of the stockholders]. Your petitioners further show that the schedule hereto annexed, marked "A," exhibits a full, just, and true inventory of all the estate, both real and personal, in law and equity, of said corporation, and of all the books, vouch- ers, and securities relating thereto. Your petitioners further show, that the schedule annexed, marked "B,"' is a full, just, and true account of the capital stock of said corporation, specifying the names of the stockholders, their residences, when known, the 882 APPENDIX OF FORMS. [CH. VIII. number of shares belonging to each, the amount paid-in upon such shares respectively, and the amount still due thereon. That the schedule marked " 0," hereunto annexed, exhibits a statement of all incumbrances on the property of said corporation, by judgment, mort- gage, pledge, or otherwise. And that schedule marked "D," hereunto annexed, exhibits a full and true account of all the creditors of said corporation, and of all the engage- ments entered into by said corporation which are not fully satisfied or can- celed, specifying the place of residence of each creditor, and of every person to whom such engagements were made, so far as known; the sum owing to each creditor ; the nature of each debt or demand ; and the true cause and consideration of such indebtedness in each case. Your petitioners therefore pray, that the said corporation may, by the order or decree of this court, be dissolved, and that a receiver may be ap- pointed, with the powers and duties of receivers in such oases, and under the usual directions, pursuant in all respects to the statute in such case provided, and the rules and practice of the court. And your petitioners, will ever pray, &c. Dated, t&e. [Hames of petitioners.] County of , ss. : A. B., 0. D., E. F., Sc. \sta,ting the names], being severally duly sworn, each for himself, deposes and says, that the facts stated in the foregoing petition, by him subscribed, and the schedules, accounts, inventories, and statements thereto annexed, are just and true, so far as he knows, or has the means of knowing. Sworn, c6c. [Names of deponents.] [Annex to the petition the schedules therein referred to.] No. 135. OEDEK THBBEON. See ante, Vol. I., p. 243 ; 2 Van Sant. Eq. Pr. T26. At a special terra, &c. [as in No. 6]. In the matter of the application of the President and Directors of the , for a voluntary disso- tion. On reading and filing the petition of the president and [a majority of the] directors of the company, and the schedules thereto annexed, duly veri- fied by the petitioners, and bearing date on, <6c. ; and on motion of 0. F. T., of counsel for the petitioners, it is ordered that all persons interested in such corporation, or having claims against the same, show cause, if any they have, CH. yill.J CORPORATIONS IN EQUITY. 383 why suoli corporation should not be dissolved, before J.B. G., Esq., who is hereby appointed referee for that purpose, at his office, in the city of , on the day of , 18 — , at 10 o'clock in the forenoon. And it is further ordered that said referee hear the proofs and allegations of the parties, and take testimony in relation to the matters set forth in. said peti- tion, and report the same to the court with all convenient speed, with a statement of the property, effects, debts, credits, and engagements of such corporation, and of all other matters and things pertaining to the affairs of such corporation. No. 136. AFFIDAVIT OF PUBLICATION. See ante, Tol. I., p. 242 ; 2 Van Sant. Eq. Pr. 727. SOPEEMB OOUET : [Title as in No. 135.] County of , ss. : C. F. T., of, Sc, being duly sworn, says that the order, of which the annexed is a printed copy, has been duly published three weeks successively, once in each week, in the State paper, commencing on the day of , and also in the , a newspaper published in , whore the principal place of conducting the business of said corporation is, once a week for three weeks successively, commencing on the day of , 18 — , and terminating the day of , 18 — . Sworn, <£c. 0. F. T. No. 137. REPORT OF RKFEEBE. See ante, Tol. I., p. 244; 2 Yan Sant. Pr. 727. {Title as in No. 135.] To the Supreme Court of the State of Few York: I, the subscriber, the referee to whom it was referred, by an order hereto- fore made in this matter, bearing date, &c., to hear the proofs and allegations of the parties interested, and to take testimony upon the matters set forth in said petition, and report the same to the court with a statement, &c. [as in the order , respectfully report : That due 'proof having been made by affidavit (which is hereto an- na.'ted) of the publication of said order as required by statute, I proceeded to a hearing of the matters so referre:!, being attended by C. F. T., Esq., the counse for the petitioners, and also by and , Sc. {mentioning the names of the po/rties who appew\. That I thereupon heard the proofs and allegations of tbe said narties, and took testimony in relation to the matters 384 APPENDIX OF FORMS. [CH, VIII. set forth in said petition, and also in regard to such other matters and things pertaining to the affairs of said corporation as were brought before me ; which testimony, duly subscribed by the respective witnesses and certified by me, is hereto annexed. I further report that schedules A, B, and 0, annexed to said petition, are in all respects just and true, [or, that schedule A is just and true with the exception of several items of personal property contained in the additional schedule hereto annexed, marked F, which I find belongs to said corporation, and is to be added to said schedule, or state otherwise as the facts may he.] I further find that schedule D is to be amended and corrected by adding thereto the several debts of said corporation, proved before me and not entered on said schedule, and which are contained in the additional schedule hereto annexed, marked G-, which shows the name of each of said creditors, the sum due him, his place of residence, the nature of the debt, and the true cause and consideration of the indebtedness. All of which is respectfully submitted. Dated, &o. J. B. G., Referee. No. 138. OEDEE OE DBCEEE FOE DISSOLUTION" AND APPOINTMENT OF EBOBIVEE. See ante, Vol. I., p. 244; 2 Tan Sant. Eq. Pr. 728. At a special term, &a. \as in No. 6]. {Title as in No. 135.] On reading and filing petition in this matter, duly verified, and the re- port of J. B. G., Esq., referee, with the testimony and schedules thereto annexed, bearing date on, &c., with due proof that notice of the order herein, requiring all persons interested in said corporation to show cause before said referee ^^■hy said corporation should not be dissolved, had been duly published for the time and in the manner required by statute, and after hearing counsel for the parties interested herein, and the said testimony so reported being duly considered, on motion of 0. F. T., of counsel for the petitioners, it is ordered and decreed that the said corporation be and the same hereby is dissolved, and shall from henceforth cease and determine. And it is further ordered, (*) that G. H., Esq., of, reMiises, and pay all costs that shall be awarded against him, then the above obligation to be void, otherwise to remain in fall force and virtue. [Signatures and seals of obligors.] Signed, sealed, and delivered in presence of F, H. [Add acknowledgment, and. affidavit of sureties, in the usual form, see ante. No. 44 ; also, approval of sureties, as follows .•] I approve of the sureties in the above bond, and of the sufficiency thereof. C. L. A., Justice of the Supreme Court. No. 161. ANSWER OE KETUEN TO OEETIOEAEL See ante, Tol. I., p. 263. The answer or return of A. D. W., County Judge of the County of , to the writ of certiorari hereto annexed. By virtue of, and in obedience to, the writ of certiorari hereto annexed. CH. X.] FORCIBLE ENTRIES AND DETAINERS. 895 and to mo directed, I do hereby certify and return to the justices of the Supreme Court, that on the day of last, the complaint of A. B., of , in said county, duly verified, was presented to me ; which complaint, with the affidavit verifying the same, is as follows : [insert the complaint, &c.] That I did thereupon, Sc. [proceed in the same manner, and mahe return of all the proceedings down to the time of the service of the writ of certiorari.^. All of which I do hereby certify and return as within I am commanded. In testimony whereof I have hereunto set my hand and seal, this — - — day of .in the year one thousand eight hun- dred and . A. D. W. [Seal]. No. 162. TRAVERSE IN THE SUPEEMB COURT. See ante, "Vol. I., p. 264. [Same substantially as in No. 152, ante.} No. 163. JUDGMENT RECORD ON CERTIORARI. See ante, Tol. I., p. 264. [Same substantially as in No. 451, to the aiterish (*), and then continue] : sent to A. D. W., county judge of the county of , their writ of certiorari close in these words, to wit : ]in3ert writ]. At which day and place in the retnrn of the said writ mentioned, before the justices aforesaid, comes the said 0. D., by L. P. 0., his attorney, and the said A. D. W., county judge, aforesaid, now here, makes return to the said writ in the words and figures following, that is to say : [insert copy. of return in full]. And the said 0. D., not having traversed the inquisition mentioned in said return, day is given to . him for that purpose, to wit, the day of , 18 — , at which last-mentioned day, the said 0. D. traverses the said inquisition as follows: [insert the defendants traverse], v It is thereupon ordered by the Supreme Court, that the said traverse be tried at the Circuit Court appointed to be held at the Court House in , on the day of , 18 — . Afterward, to wit, on the day and at the place last aforesaid, before C. L. A., Esq., one of the justices of said court, come as well the above- named C. D., as the above-named A. B. ; and the jurors summoned to try the said traverse, being called, also come ; who, to speak the truth of the matters above contained, being duly sworn, say, upon tlieir oatli, that t:ie said 0. D. is guilty [or, not guilty] of the forcible entry [or, forcible detainer] as by the complaint of the said A. B. is alleged. 396 APPENDIX OF FORMS. [CH. X. Whereupon the said A. B. prays judgment of i-estitntion, witli costs, ami that a writ or warrant may be issued by the said court, restoring to him the possession of the premises aforesaid. I ^ It is therefore considered that the said A. B. recover I I ^ against the said 0. D. dollars, for his costs and oliarges rS ^ _ by him laid out and expended in and about his defense to '2 o J^ the said writ of certiorari, adjudged to him by the court now §0 "*• P^' here, with his assent, and that )ie have execution therefor. " I }z, And it is further considered that the said A. B. be restored S I to the possession of the premises described In the proceedings 5b ° aforesaid. ■-3 >, 3 B [If judgment is for the defendant, proceed thus .•] It is therefore considered that the inquisition aforesaid be, and the same is, hereby^quashed. And it Is further considered that the said 0. D. recover against the said A. B. dollars, for his costs and cliarges by him laid out and expended in and about the prosecution of the said writ of certiorari, adjudged to him by the court now here, with his assent, and that he have execution tlierefor, Sc. No. 164. WRIT OF KESTITUTION. See ante, Vol. I., p. 263. The People of the State of New York, to the Sheriff of the County of , greeting : Whereas, we lately caused to be removed, by our writ of certiorari, into our Supreme Court of judicature, before our justices therein, certain pro- ceedings liad before A. D. W., county judge of said county. And, thereupon, it was considered, in our said Supreme Court, before our justices aforesaid, that the said A. B. be restored to the possession of the following described lands and premises [insert description]. Now, therefore, we command you, that you fortliwith restore the said A. B. to the full possession of the said premises; and how you shall have executed this our writ, make appear to our justices of our Supreme Court, at, &c., on, &e. ; and have you then there this writ. Witness, i&o. [in usual form]. N. B. M., Clerk. J. G., Attorney. CH. XI.] FOBECLOSURE BY ACTIOK. 397 CHAPTER XI. ?ORMS ON THE FORECLOSURE AND DISCHARGE OF MORTGAGES. I. Forms ok Foeeclosuee by Action. No. 165. SUMMONS AND NOTICE OF OBJECT OF ACTION. See ante, Vol. I., p. 2^3. ■ In Supkemb Couet, [or otlt,»r court]; County of — . G. T., Plaintiff, against D. K. <&c., [defendants in full]. To the defendants D. K., and others, above named : You are hereby summoned and required to answer the complaint of the plaintiff in this action, which will be filed in the office of the clerk of the county of , at in said county, and to serve a copy of your answer on me at my office, No. 128 Broadway, in the city of New York, within twenty days after the service of this summons upon you, exclusive of the day of such service ; and if you fail to answer the said complaint within the time above mentioned, the plaintiff will apply to the court for the relief demanded in the complaint. Dated, <&c. ' J. W., Att'y for Plaintiff. To the defendants D. K., and others, above named : Take notice, that the summons herewith served on you in the above- entitled action is issued in an action brought for the foreclosure of a mort- gage, executed by D. K. . to G. T., on the day of , 18—, recorded in the clerk's office of the county of , in book of mortgages No. 11, p. 123, on the day of , 18 — , at 9 o'clock a. m. ; [and which said mortgage was duly assigned by the said G. T. to the plaintiff above named, on the day of , 18 — .] The said mortgage was executed to secure the payment of dollars, with interest from the day of , 18— , and covers the following described premises, situated in the town of , in the county of — — , viz. : [insert brief description of mortgaged premises]. 398 APPENDIX OF FORMS. [CH. XT. Yon will further take notice that no personal claim is made against yon, or against any defendant except the said D. K. Dated, &c. J. "W., Att'y for Plaintiff. No. 166. AFFIDAVIT TO DETAIN OEDEE OF PUBLICATION. See ante, Vol. I., p. 283. [Title as in M. 165.] County of — , ss. : G. T., of — , in said county, plaintiflf above named, being duly sw(irn, deposes and says. That this action is brought to foreclose a mort- gage upon real estate situated in the town of , in said county, in which county the place of trial is laid: That the defendant, D. K., is the owner of the equity of redemption of the said mortgaged premises, [or, that the defendant, L. S., is a creditor of the mortgagor D. K., by judgment rendered subsequent to tlie said mortgage, and docketed in the clerk's office of said couLty of , on the day of , 18 — .] That the said defendant D. K. [or L. S.] is not a resident of the State of New York, and as deponent believes is not now to be found therein ; but the said defendant resides at , in the State of Wisconsin ; at which place the said defendant was a few days since, as deponent btlieves, this deponent having received a letter from the said defend- ant dated and post-marked at that place, on the day of , inst. [or other sources of information, according to the fact]. No. 167. OEDER DIRECTING SERVICE BY PUBLICATION. See ante, Tol. I, p. 283. [Title as in 1^0.165.] It appearing satisfactorily to me by the affidavit of G. T., that this action is brought to foreclose a mortgage npon real estate situated within this State, and that the defendant D. K. is a proper party to the action, and that the said defendant cannot be found in this State, I do order that the summons in this action be served on the said defendant by the publication thereof, once a week, for six weeks, in the newspaper printed in the county of , called the , and also in the newspaper printed in the county of Albany, called the . I do further order and direct that a copy of the summons and complaint in this action, property folded and enveloped, be forthwith deposited in the post office of — — , directed to the said D. K., at , Wisconsin, his place of residence, and the postage prepaid thereon [omit this paragraph if the defendanVs residence is unknown.] I^ated, ,iv. W. H. L., Justice of the Sup. Court. CH. XI. j rORECLOSURE BY" ACTIOK. 399 No. 168. NOTICE OF LIS PENDENS See ante, Vol. I., p. 285. [Title as in No. 165.] Notice is liereby given that the above-named plaintiflF, G. T., has com- menced an action in this court against D. K., R. K., and L. S., for the fore- closure of a mortgage, bearing date the , day of 18 — •, executed by D. K. and E. K. his wife, defendants, above named, of the town of , in the county of , to the said Gr. T. [or, to L. M., who duly assigned the same to the said G. T., plaintiff above named] and recorded in the office of the clerk of the county of , on the day of , 18 — , at nine o'clock in the forenoon. That the mortgaged premises in the county of , affected by the said action, were at the commencement of this action, and now are, situated in the town of , in said county of , and are described in the said mortgage as follows, to wit : [insert description of the premises, follow- ing the descriptioii in the mortgage]. Dated, &e., J. W., Attorney for Plaintiff. No. 169. COMPLAINT IN ACTION TO FOKECLOSE MORTGAGE. See ante, Vol. I, p. 288. [Title in full, as in No. 165.] The complaint of the plaintiff above named shows to the court: That the defendant D. K., for the purpose of securing the payment to the plaintiff of the sum of dollars, with the interest thereon, on the day of , 18 — , executed and delivered to the plaintiff a bond, bearing date on that day, sealed with his seal, in the penal sura of dollars, and con- ditioned that the same should be void, if the defendant, D. K., should pay to the plaintiff the said sum of dollars, as follows : [set forth the condition of the mortgage] ; and as collateral security for the payment of the said moneys, the said defendant D. K., and the defendant K. K., his wife, on the same day, duly executed, acknowledged, and delivered to the said plaintiff a mortgage, whereby they granted, bargained, and sold to the plaintiff the premises hereinafter described, with the appurtenances thereto, that is to say : all that piece' or parcel of land situated, lying, and being in the town of , in the county of , and bounded, &c. [insert description of mort- gaged premises] ; which said mortgage contained the same condition as the said bond. And in case of default in the payment of the said sum of money, or any part thereof, the said plaintiff was empowered to sell the said prem- 400 APPENDIX OF FORMS. [CH. I. ises in due form of law, and from the moneys received from the sale to pay the said sum of money and interest thereon, with the costs and expenses of the proceedings, the surplus to be returned to the mortgagor. \If the mortgage has been assigned, and the action is hrovght hy the as- signee, insert the assignment as follows: The plaintiff further shows, that G. T., mortgagee aforesaid, on or about the da> of , 18 — , for a val- uable consideration, duly assigned, transferred, and set over to the plaintiff above named the said bond and mortgage, and the moneys due thereon and secured thereby, and thereupon delivered the said bond and mortgage to the plaintiff; which assignment was duly recorded in the office of the clerk of the^county of , on the day of , 18 — , in book of mort- gages, on pages .] And the plaintiff further shows, that the said mortgage was duly re- corded in the office of the clerk of the county of , on the day of , 18 — , in book of mortgages, on pages . The plaintiff further shows, that the said defendant has not complied with the condition of said bond and mortgage, and has omitted to pay the sum of dollars, which became due on the day of- — — , and that there is now justly due to the plaintiff, upon the said bond and mortgage, the sum of dollars, with interest from the — — day of , 18 — And that no proceedings have been had at law, or otherwise, for the recovery of the moneys secured by the said bond and mortgage, or any part thereof. The plaintiff further shows, upon information and belief, that the de- fendant, L. S., has, or claims to have, some interest in, or lien upon, the said mortgaged premises, or some part thereof, as a judgment creditor of the said mortgagor [or otherwise, as the case may he], which interest or lien, if any, has accrued subsequently to the lien of the said mortgage. Wherefore, the plaintiff deinands judgment, that the defendants, and all persons claiming under them subsequent to the commencement of this action, may be barred and foreclosed of all right, claim, lien, and equity of redemp- tion in the said mortgaged premises; that the said premises may be directed to be sold according to law ; that, out of the proceeds thereof, the plaintiff may be paid the amount due on the said bond and mortgage, with interest' to the time of such payment, and the costs and expenses of this action, so far as the amount of such moneys properly applicable thereto will pay the same ; and that the residue of said moneys be brought into court to abide the further order of the court thereon ; and that the defendant, D. K., may be "adjudged to pay any deficiency which may remain after applying all of said moneys so applicable, as aforesaid, to the payment of said mortgage, and the costs and expenses of the proceedings ; and that the plaintiff may have such further or other relief as shall be just and equitable. J. W., Att'y for Plaintiff. County ot^ , ss. : G. T., the plaintiff above named, being duly sworn, deposes and says, that the foregoing complaint is true, to his own knowledge, except as to the matters therein stated on information and beliefj" and as to those matters, he believes it to be true. Sworn, Sc. ' G. T. CH. SI.J FOEECLOSUEE BY ACTION. 401 No. 170. AFFIDAVIT TO OBTAIN JUDGMENT OK OEDEE OF BEFEEENOE ON DEFAULT. See ante, Vol. I, p. 293. [Title of the cause. \ County of , ss. : J. "W., attorney for plaintiff, being duly sworn, deposes and says, that this action is brought for the foreclosure of a mort- gage upon real estate, situated in the town of , in said county ; that the whole amount of the said mortgage is due ; that none of the defendants have answered or demurred to the complaint; (*) that none of them have ap- peared in the action ; and that none of them are non-residents, or under the age of twenty-one years. Sworn, • ss. State of New York, county of , f **' L. M., of , in said county, being duly sworn, says : Tliat he officiated as auctioneer at the sale of the [Attach here a premises, hereinafter mentioned; and, as such auctioneer, printed copy sold the premises described in the annexed printed copy of of the notice notice of sale, at public auction, at the time and place of sale of sale.'] therein mentioned, to wit, on the day of , 18 — , at — o'clock in the noon, at the front door of the Court House [or, hotel, kept by ], in the town [or, city] of , in the county of aforesaid ; and that J. R., of , then and there purchased the said premises for the price of dollars, he being the highest bidder, and that being the highest sum bidden for the same. And deponent further says, That said sale was in all respects honestly and faii'ly conducted, as deponent verily believes ; and that the said J. R. pur- chased the said premises fairly and in good faith, as deponent also verily be- lieves. L. M. Sworn, &c. [as in No. 190]. No. 195. BILL or COSTS ON FOBBOLOSUKB. See ante, Vol. I., pp. 353, 854. Dr. mtice of sale, 5 fol., at 2s. . . . . . $1 25 Copy same to keep, at Is. . . . . . . 621 Vet. IT.— 27 418 APPENDIX OF FOBMS. [CH. XI, Gopy notice for printer, at Is. . Copy notice for posting on Court House door, at Is. Expense of posting, .... Dr. afBdavit of posting, 2 fol. and copy, at 3s. Copy notice annexed, at Is. Copy notice for posting in clerk's office, at Is. Clerk's fees on same, .... Dr. affidavit of posting in clerk's office, 2 fol. and copy, at 3s. Copy notice annexed, at Is. . . . Printer publishing notice, 13 insertions 5 fol. . " " two postponements of sale, 1 fol. each, " " two additional insertions of notice of sale, Dr. affidavit of publication, 2 fol. and copy, at 3s. ^Copy notice annexed, at Is. Copy notice to serve on mortgagor, at Is. Serving notice, ..... 62i 62i 1 00 75 m 62i 25 75 62i 21 75 1 50 3 00 76 m m 1 00 75 m 1 [Same charges/or each and every other notice served, if any,] Dr. affidavit of service, 2 fol. and copy, at 3s. . Copy notice annexed, 5 fol. at Is. .... Postages [to he stated J>y items] Clerk's fees for searches [the fees actually paid] Dr. affidavit of circumstances of sale, 4 fol. and copy, at 3s. Copy printed notice annexed, ..... Superintending sale, &c. .... . . Recording affidavits [the fees actually paid] Oaths to five affidavits, 10 ots. each, .... [If a deed has ieen executed ly the mortgagee to the pwrchaser, then add :] Dr. deed to purchaser, 6 fols. and copy, at 3s. . . . 2 25 Acknowledgment of deed, 2s. . . . . . 25 Recording same [the fees actually paid.] 50 62i 10 00 50 No. 196. NOTICE OF TAXATION OF COSTS. See ante, Vol. I., p. 354. [To he indorsed on copy hill to he served.] To C. D. Sir : Take notice that the bill of costs, of which the within is a copy, will be presented for taxation to C. L. A., Esquire, justice of the Supreme Court [or, to A. D. "W., Esquire, county judge], at his office in , in said county, on the day of next, [or, instant], at ten o'clock in the forenoon. Dated the day of , 18 — . Yours, &c., L. P. C, Att'y for Mortgagee [or, Assignee]. CH. XI.] DISCHAEGE OF MORTGAGES. 419 No. 197. AFFIDAVIT OF DISBtlBeEMSNTB. See ante, VoL L, p. 355. ■ State of New York, i [County of , J ^"^ L. P. 0., of , in said county, being duly sworn, says : That he is the attorney for , the mortgagee [or, assignee] of a mortgage executed by , to , and which has been duly foreclosed under the statute. That, according to the best of deponent's knowledge and belief, the several dis- bursements charged in the bill of costs hereto annexed have been actually and necessarily paid or incurred. That the copies of papers charged therein were actually and necessarily used or obtained for use. That such bill of costs contains no charge for any draft or copy of any aflSdavit, or other paper, which has not been made, or for any other service which ha« not been performed, except such services as are allowed bylaw to be taxed prospectively; and that the number of folios contained in the draft, or in the copies of said papers, are not overcharged in such bill. L. P. 0. Sworn, <£c, [as in No. 1 90]. IV. FORMS ON THE DISCHAEGE OF MOETGAGES OF KECOKD. No. 198. PETITION FOE DISCHAEGE OF MORTGAGE OF BEOOBD. See ante, Vol. I, p. 358. In the matter of the petition of A. B., to have mortgage discharged of ■ record. i J To the Supreme Court of the State of New York [or, to the Superior Court of the City of New York [or, of Buffalo]. The petition of A. B., of , in the county of , shows to the court : That he is the owner of that piece or parcel of land situated in the city [or, county] of , in the State of New York, and described as follows : [insert description]. Your petitioner further shows, that there is recorded, in the clerk's [or, register's] office of said county of , a mortgage covering the premises aforesaid ; executed by 0. D., and S., his wife, mortgagors, to E. F. mort- gagee, conditioned to pay to the said mortgagee, in five years from the 420 APPENDIX OF FORMS. [CH. XL date tliereof, the sura of dollars, witli interest, annually, on the 1st day of April in each year." That the said mortgage is dated the day of , 18 — , and was recorded in said clerk's [or, register's] office on the day of — — , 18 — , in liber " B" of mortgages, pages 213, 214. Your petitioner further shows, tltat the said mortgage is paid; thatE. F., the mortgagee named in said mortgage, is deceased, having departed this life at the city of New York more than live years since, to wit: on the day of , 18 — ; and that the place of residence of the said mortgagee, at the time of his death, was in said city of New York ; that no letters tes- tamentary, or of administration, have been taken^out in this State upon the estate of said mortgagee ; that the heirs of the said mortgagee, so far forth as the same can be ascertained by your petitioner, are R. F. and J. F., both of whom reside in , in said county ; and that the said mortgage was never assigned or transferred to any other party [or, if assigned, state to whom, and the facts in regard to the same}. Your petitioner, therefore, prays that the said mortgage may be discharged of record. A. B. [Add verification, as in No. 1.] No. 199. OKDBB TO SHOW OAITBE. See ante, ToL I., p. SST. At, <6c. [as in No. 6]. [Title as in last form.} On reading and filing the petition of A. B., dated the day of , 18 — , praying that a mortgage executed by 0. D., and S., his wife, to E. F., dated the day of , 18 — , and recorded in the clerk's [or, register's] office of the county of , in Ifber "B" of mortgages pages, &e., on the day of , 1 8 — , and covering premises situated in the city [or, county] of , may be discharged of record : It is, on motion of G-. H. T., of counsel for the said petitioner, ordered, that all persons interested show cause at the special term of this court, to be held at Chambers, iu the City Hall, New York, on the day of , 18—, at ten o'clock a. m., why the said mortgage should not be discharged of record. It is further ordered, that this order be published in the , a newspa- per printed in said city, once in each week for weeks, successively; and that a copy of this order be served personally on E. F. and J. F., heirs of the said E. F., — — days before the said day of . CH. XI.] DISCHARGE OP MORTGAGES. 421 No. 200. OBDEK OF EErERBNOE. See ante, Vol. I., p. 357. At, &c. {as in No. 6]. [Title as in No. 198.] It ai)pearing to the court that the order made in this matter on the day of , 18 — , was duly published in the , a newspaper printed in the city of New York, for weeks successively, commencing on the day of , 18 — , and terminating on the day of , 18 — , and that a copy of said order was, on the day of , 18—, personally served on E. F. and J. F., heirs of E. F., deceased, as required in and by the said order : It is now, on motion of G. H. T., of counsel for the petitioner, ordered, that it be, and it hereby is, referred to L. F., Esq., as referee, to take iind report proofs of the facts stated in the said petition. No. 201. eefeeee's eeport. See ante, Vol. I., p. SST. [Title as in No. 198.] To the Supreme Court of the State of New York: The undersigned, appointed a referee by an order of this court dated the day of , 18 — , to take and report proofs of the facts stated in the petition in this matter, do hereby certify and report : That, before entering upon the execution of said order, I caused days' notice, in writing, to be given to K. F. and J. F., of the time and place of executing the same, to wit : on the • day of , 18 — , at 10 o'clock a. m., at 7ny office. No. 161 Broadway, New York. That, at the time and place aforesaid, I proceeded to execute the said order, in the presence of G. H. T., attorney for the said petitioner, no one appearing for other parties interested herein, and that I have taken proofs of the facts stated in the said petition; and that the said proofs are annexed hereto, marked as schedules " A," " B," and"C." , Dated, Se. L- E'., Referee. No. 202. OBDBB D18CHAEGING MOKTGAGE OF EEOOED. _ See ante. Vol. I., p. 358. At, &c. [as in No. 6]. [Title as in No. 198.] On reading and filing the report of L. F., Esq., referee in this matter, to whom it was i-eferred to take and report proofs of the facts stated in the 422 APPENDIX OF FORMS. [CH. XII. petition herein, by an order dated the day of , 18 — ; and it appear- ing from the proofs so taken that A. B., the petitioner above named, is the owner of the real estate described in the said petition; that, Se. [recite the other matters alleged in the petition]. Now, on motion of G. H. T., of counsel for the said petitioner, no one appearing in opposition thereto, it is ordered, that the mortgage above referred to be discharged of record ; and that the clerk [or, register] of the county of make the proper entries in his books showing such discharge. CHAPTER XII. FORMS ON HABEAS CORPUS AND CERTIORARI. No. 205. PETITION FOE HABEAS 0OBPU8, OB OEETIORAEI, TO INQUIBE INTO THE CAUSE OE DETENTION. See ante, Vol. I., p. 368. To the Supreme Court of the State of New York [or, To Hon. A. B. J., Justice of the Supreme Court ; or other officer to whom application is to he made]. The petition of A. B., respectfully shows : That he is now a prisoner, con- fined in the custody of C. D., sheriff of the county of , in the county jail in the village [or, city] of , in said county, for a supposed criminal offense, to wit : [here state the offense]. Your petitioner further shows : That such confinement is by virtue of a warrant, a copy of which is hereto annexed [or, and your petitioner avers that by reason of his being removed or concealed before this application, a demand of a copy of the warrant, or process by virtue of which he is confined, could not be made. Or thus : And your petitioner avers, that, prior to this appli- cation, a demand of a copy of the warrant or process by virtue of which he is confined, was made of the said C. D., and the legal fees therefor tendered to him ; and that such copy was refused]. And your petitioner further shows : That to his best knowledge and be- lief he is not committed or detained by virtue of any process issued by any court of the United States, or any judge thereof [in a case where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of a suit in such courts], or by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any exe- cution issued upon such judgment or decree. CH. XII.] HABEAS CORPUS. 423 And your petitioner states and sliows, that he is advised by his counsel, O. F., Esq., residing at , and verily believes that his imprisonment is illegal, and that such illegality consists in this [state in what the alleged ille- gality eoTisists]. Wherefore your petitioner prays a writ of habeas corpus [or, certiorari] ; 1 1 the end that he may be bailed or discharged from custody. Dated, &c. A. B. 0. F. Attorney. County of , ss. A. B., the above-named petitioner, being duly sworn, says : That the foregoing petition is true to his own knowledge, except as to the matters which are therein stated on information and belief, and as to those matters he believes it to be true. A. B. Sworn to, &e. No. 206. ANOTHEE FOEM Or PBTIHON BY THIED PAETT. To the Supreme Court, &c.[as in last form]. The petition of E. F. respectfully shows: That A. B. [or if his name is not known, describe him] is imprisoned, or restrained of his liberty, by [state the name of the officer or person by whom he is restrained, if hnown, and if not known, describe him], and that the said A. B. is so confined or re- strained, at [state the place where the pa/rty is confined]. And your petitioner further shows, that, according to the best of the knowledge and belief of your petitioner, the cause or pretense of the afore- said confinement, or restraint, of the said A. B. is as follows: [state cause of detention]. And your petitioner further shows, <£«. [as in last form, including veri- fication, varying it to suit an application made by a third person on behalf of the person imprisoned]. E. F., in behalf of A. B. No. 207. ANOTHEE FOKM, IN CASE OF INFANTS. See ante, Vol. I., pp. 364, 388. To the Supreme Court of the State of New York : The petition of A. B., of , in the county of , and State of New York, respectfully shows : That, !fG. [Here state the matters alleged in the last form, so far as the same are applicable ; and also all the facts and circumstances in relation to the ability of both parents ; and all the facts and circumstances proper to be considered in determining the custody and disposition of an infant. And make the prayer in the petition according to the relief required.] 424 APPENDIX OF FORMS. [CH. XII. No. 208. WRIT OF HABEAS CORPUS. See ante, Tol. I., p. 370. The People of the State of New York, to 0. D., Sheriff of, &c. [or other person in whose custody the party is]. We command you that you have the body of A. B., by you [Seal.] Imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatsoever name the said A. B. shall be called, or charged, before our justices of our Supreme Court, <&c. [or, before A. D. W., county judge, <&c., as the case may he], at, &e., on, <6c. [or, immediately after the receipt of this writ], to do and receive what shall then and there be considered concerning the said A. B. And have you then there this writ. "Witness, 0. L. A., one of the justices of our Supreme Court, at , the day of , 18—. O. F., Attorney. N. B. M., Clerk. HOW WRIT INDORSED. See ante, Tol. I., p. 371. Allowed the day of , 18 — [or, allowed on application of the attorney-general, or, district attorney, this day of , 18 — . Or, if the writ is directed to any party other than a sheriff, coroner, constable, or marshal, and the charges for bringing up the prisoner are required by the court or judge to be paid by the petitioner, then add to the allowance the following : And the charges for bringing up such prisoner, amounting to dollars, are hereby required to be paid by the petitioner on whose application this writ is issued]. C. L. A., Justice of the Sup. Court. No. 209. WRIT OF OBRTIORARI. See ante, Vol. I., p. 370. The People of the State of New York, to C. D., Sheriff of, Sc. [or other person in whose custody the party is] . We command you that you certify fully, and at large, to our [Seal.] justices of our Supreme Court [or, to A. D. W., county judge, &c., as the case may be], at, (fee, on, t&c. [or, immediately after the receipt of this writ], the day and cause of the imprisonment of A. B., by you detained, as it is said, by whatsoever name the said A. B. shall be called or charged. And have you then and there this writ. Witness, &e. [as in last form]. O. F., Attorney. N. B. M., Clerk. [Indorsement as in last form.] CH. XII.] HABEAS CORPUS. 425 No. 210. BOND ON SEHVING 'WKIT, See ante, Vol. I., p. 313. Know all men by these presents, That I, E. F., farmer, of the town of , in the county of , am held and firmly bound unto 0. D., sheriff of said county, in the penal sum of dollars [penalty double the amount of the sum for which the prisoner is detained, if detained for any specific sum, and, if not, then for one thousand dollars^, to be paid to the said 0. D., or to his certain attorney, executors, administrators, or assigns, for which pay- ment, well and truly to be made, I bind myself, my heirs, executors, and administrators firmly by these presents. Sealed with my seal, and dated the day of , 18 — . Whereas, A. B. is now confined as a prisoner in the custody of the said C. D., sheriff, as aforesaid, and a writ of habeas corpus has been issued by the Supreme Court [or, by A. D. W., Esq., county judge of said county], to inquire into the cause of his detention, directed to the said sheriff. Now, therefore, the condition of this obligation is such, that if the said E. F. shall pay to the said sheriff the charges for carrying back the said A. B., if he shall be remanded on the said habeas corpus, and if the said A. B. shall not escape by the way, either in going to or returning from the Court House in the village of [or, the office of said county judge, or other place where the prisoner is required to he tahen], then this obligation to be void, otherwise to remain in full force and virtue. Sealed and delivered E. F. [Seal.] in presence of S. T. No. 211. PETITION SHOWINO THAT PAKTT MAY BE CAEHIED OUT OF THE STATE, OR MAT 8UFFEE SOME INJUKT BEFORE WRIT CAN ISSUE. See ante, Vol. I., p. 374. To the Supreme Court, So. [proceed, substantially as in No. 205, to the end, and then as follows] : And your petitioner further shows, that the said G. H., in whose custody the said A. B. is, has threatened to carry the said A. B. out of this State, and has told several persons, publicly, that such was his intention. That your petitioner had a conversation with said G. H., this morjiing, in which he informed your petitioner that he should leave immediately with said A. B., for the State of , and that your petitioner, or any other person, had no power to prevent him from doing so, <&c. [setting forth the facts showing the 426 APPENDIX OF FOKMS. [CH. XII. illet/al confinement or cuntody, and that the parti/ tonjined will ie carried out of the State, or suffer some irreparable injv/ry 'before the can be relieved by habeas corpus or certiorari] , E. F, O. F., Attorney. [Add verification as in No. 205]. AFFIDAVIT TO AOOOMPANT THE ABOVE PETITION. County of , ss. E. S., of , in said county, being duly sworn, deposes and says : Ha 'S acquainted with A. B. and G. H., mentioned in the annexed petition. That, &c. [setting forth facts in corroboration of the facts stated in the petition]. Sworn to, er person appointed by the court to take charge thereof Your petitioner, therefore, prays that B. H., of the town of , &e., who is the mother of your petitioner, may be appointed the general guardian of his person and estate, upon her giving security for the faithful performance of her trust as such guardian, according to the statute, and in conformity with the rules and practice of the court. Dated, c6c., . E. H. [Add verification substantially as in No. 1,] CONSENT OF PEOPOSED GUARDIAN. I hereby consent to be appointed the general guardian of the above-named E. H., and I offer, as my sureties, T. C. and E. 0., both of the town [or, city] of , in the county of . Dated, &a. B. H. OH. XIII.] APPOINTMENT OF GUARDIANS. 43 B No. 230. IIKE PETITION — ^nrPANT tTNDBE THE AGE OF POUBTKEN TEAKS. See ante, Vol. I., p. 424. To the Supreme Court of the State of New York. The petition of A. H., of the town of, &c., respectfully shows : That your petitioner is the mother of M. A. H., an infant under the age of four- teen years, and is the widow of W. H., late of said town of , deceased. That as the heir at law of her said father, the said W. H., deceased, the said infant is seized of and entitled to an estate in fee in and to a certain house and lot situated in the town of, cfcc, the gross income of which is about dollars per year. That she is also the owner of the following personal prop- erty [describe the personal property generally, giving the vahit thereof] . Your petitioner further shows that the said infant has no other property, real or personal, nor any right or interest in other property than that above mentioned, according to your petitioner's best knowledge or belief. That on account of the said infant's inability to protect her own rights and interest, your petitioner is desirous of having some suitable and proper person ap- pointed by the court to take charge thereof. Your petitioner, therefore, prays that slie may be appointed the general guardian of the person and estate of the said infant, upon giving security for the faithful performance of her trust as such guardian, according to the statute, and in conformity with the rules and practice of the court. Dated, So. A. H. [Add verification, substantially as in No. 1.] No. 231. OEDEE OF EBFEEENCE. See ante, Vol. I., p. 424. At a special term, <&c. [as in No. 6]. SnPEEME COTTET. In the matter of the petition of R. 11., an infant, for the ap- pointment of a general guar- dian. On reading and filing the petition of E. H., an infant over the age of four- teen years, dated the day of , 18 — , praying for the appointment of a general guardian of his person and estate ; and on motion of L. P. C, of counsel for the petitioner, it is ordered that it be referred to W. E., Esq., of, &c., to ascertain the truth of the matters stated in said petition, and particn- 436 APPENDIX OF FORMS. [CH. XIII. lai'Iy, by inspection or otherwise, to ascertain the age of the said infant E. H., and if of the age of fourteen years, or upward, to examine him as to his voluntary nomination of a suitable and proper person as guardian. And if the said infan be under the age of fourteen years, the referee shall ascer- tain who is entitled to the guardianship, and shall name a suitable and proper person as guardian. The said referee is also required to ascertain the amount or value of the personal property, and the gross amount or value of the rents and profits of the real estate of the infant during his minority; and also to ascertain the sufficiency of the security offered by the guardian. And the said referee, in his discretion, may direct notice to be given to such of the relatives of the infant as he may think proper, to appear before him and be heard in relation to the application. The said referee is directed, also, to pass upon the security to be given by the guardian under the 65th Rule of this court ; and, in doing so, shall state that each of the persons pro- posed as sureties for such guardian and for the performance of his duties, is worth the requisite amount over and above all his debts, or that the real estate proposed to be given as security is of the value required by such 65th rule, and that the same is unincumbered. No. 232. eepekee's BEPOKT THEEBON'. See ante, Vol. I., p. 426. [Title, as in last form.] To the Supreme Court of the State of New Yoi-k. In pursuance of an order of this court in the above-entitled matter, dated the day of -, 18 — -, whereby it was referred to the undersigned, as referee to, (&c. [state tJie substaiice of the order of reference], I, the subscriber, referee aforesaid, do certify and report that, having been attended by the said infant and by his attorney, I proceeded to make such inquiries and examina- tion as the said order required, having previously directed notice to be given to the mother of the said infant with whom he resides, and to, (fee, to appear before me if they desired to be heard in relation to the said application, and required the attendance of such witnesses as appeared to me to be necessary to give testimony on the subject of such application. I do further report that from an inspection of the said infant, as well f.s from the testimony of B. H., his mother, taken before me, I am satisfied the age of the said infant is about fifteen years ; that I examined him as to his norniniition of a guardian, and that he voluntarily nominated his mother, the siiid B. H., to be his general guardian; and that I am of opinion the said" B. H. is a suitable and proper person to be appointed such guardian. I further report that the personal property of the said infant consists of about dollars in money, and bonds and mortgages of the amount or v.ilne of about dollars ; and that the gross amount or value of the rents CH. XIII.] APPOINTMENT OF GUARDIANS. 437 and profits of the real estate of the said infant is about dollars per year; and that tlie aggregate amount of such rents and profits during his minority will be about dollars. And I further rept)rt that the said proposed guardian should be required to give security in the sum of dollars; and that she has offered T. 0. and K. 0., of, (&c., as her sureties, and having taken from each of them an aflSdavit as to his sufl5cienoy, and made inquiries relative thereto, I am satis- fied that the sureties so offered are suflScient ; and I certify that each of said sureties is worth the sum of dollars over and above all his debts, and exclusive of property exempt by law from levy and sale on execution. All which is respectfully submitted. Dated, &c. W. E., Eeferee. No. 233. OBDBB APPOINTING GENERAL GUAEDIAN. See ante, Yol. I., p. 426. ' At a special term, Sc. [as in No. 6]. [Title a^ in M. 231.] On reading and filing the report of W. E., Esq., the referee in this matter, appointed by an order of this court, dated the day of , 18 — , and which report is dated the day of , 18 — , from which report it appears to the court that B. H. is a suitable and proper person to be ap- pointed guardian of the person and estate of the above-named R. H., that the said proposed guardian should give security in the sum of dollars, and that T. 0. and R. 0., proposed sureties for the said B. H., are each worth the requisite sum and are sufficient. Now, on motion of L. P. 0., of counsel for the said infant, it is ordered that the said B. H. be and .she hereby is appointed general guardian of the person and estate of the said infant upon her executing a bond to the said infant, with the said T. 0. and R. 0. as her sureties, in the penal sura of dollars, conditioned that the said B. H. shall faithfully perform her trust as such guardian, and file an inventory of the estate of the said infant within six months after her appointment, and render the annual inventory or account of her guardianship, required to be rendered and filed by the practice of the court; that she shall observe and obey all the general rules of the court respecting general guardians, and such orders as shall be made by the court from time to time in relation to such trust; and that she shall render a just and true account of all moneys and property of said infant, which shall come to her hands as such general guardian, and of the application thereof, and of her guardianship generally before any court having jurisdiction, whenever she shall be thereunto lawfully required. It is further ordered that the execution of such bond be acknowledged for proved, and that the sureties therein justify in the usual manner ; and 438 APPENDIX OF FORMS. [CH. XTII. that tlie said bond be approved as to its form and manner of execution by one of the justices of this court, to be signified by his approval indorsed thereon, and be filed in the office of the clerk of this court. No. 234. BOND OF aUABDIAN. See ante, Yol. I., p. 421. Know all men by these presents, that we, B. H., T. 0., and E. 0., of, &e., are held and firmly bound unto K. H., an infant, son of the late , of, <&c., deceased, in the sum of dollars, to be paid to the said R. H., his heirs, executors, administrators, or assigns ; for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , one tliousand eight hundred and . (*) Whereas, by an 'order of the Supreme Court of the State of New York, made on the day of , 18 — , the above-bounden B. H. was appointed the general guardian of the person and estate of the above-named E. H., an infant under the age of twenty-one years, upon her executing a bond to the said E. H., with the said T. 0. and E. C. as her sureties, in the penalty and upon the condition therein mentioned. Now, therefore, the condition of this obligation is such, that if the above- bounden B. H. shall faithfully perform her trust as such guardian, and shall file an inventory of the estate of tlie said infant, within six months after her appointment, and render the annual inventory and account of her guardian- ship required to be rendered and filed by the practice of the said court, and shall observe and obey all the general rules of the said court respecting gen- eral guardians, and such orders as shall be made from time to time by the said court in relation to such trust, and if she shall render a just and true account of all moneys and property of said infant whioh shall come to her hands as such general guardian, and of the application thereof, and of her guardianship generally, before any court having jurisdiction, whenever she shall be thereunto lawfully required, then this obligation to be void ; other- wise to be and remain in full force and virtue. B. H. Sealed and delivered T. 0. in presence of S. T. E. 0. [Add acknowledgement, and affidaiiit of sureties, as in No. 261.] APPROVAL [to be indorsed on bond]. I approve of the within bond as to its form and manner of execution. W. H. L., Justice Supreme Court. Dated, &e. CH. XIII.] APPOINTMENT OF GUARDIANS. 439 II. FoEMs ON Appointment of Guardian by Surrogate. No. 235. PETITION FOB APPOINTMENT OF GENERAL GUAKDIAN BY SUBEOGATE — MINOK OVEB FOUETEEN YEAE8 OF AGE. See ante, Vol. I., p. 430. To the Surrogate of the County of Washington. Tlie petition of R. H. respectfully shows: That your petitioner is a minor over the age of fourteen years, to wit : of the age of sixteen years and three months, as he verily believes. That your petitioner is a resident of the town of Salem, in said county, and is the son of B. H., late of the same place, deceased. That the said B. H. departed this life on the day of , 18 — , without having appointed any guardian for your petitioner, either by deed or will, to his knowledge or belief. That your petitioner is seized of real estate, the rents and profits of which are worth dollars per year, and that he is possessed of personal estate of the value of dollars, as he is informed and believes. Your petitioner further shows, that he is desirous that a guardian should be appointed of his person and estate during his minority, and for that pur- pose nominates L. F., of said town of Salem, an attorney and counselor of the Supreme Court, and aged about years, to be such guardian. That the said L. F. is a proper and suitable person to be appointed such guardian ; and that he has consented to act in that capacity, if appointed, and to give the requisite security. Your petitioner, therefore, prays that the said surrogate will inquire into the circumstances above stated, and grant the prayer of the said petition. Dated, &c. R. H. County of "Washington, ss. : J. H., being duly sworn, deposes and says : He is acquainted with the above-named R. H., and was present and saw him subscribe his name to the foregoing petition. Sworn, &e. J. H. CONSENT OF GUAKDIAN. I hereby consent to act as guardian of the person and estate of R. H., the minor named in the foregoing petition, if I should be appointed for that purpose. L. F. In the presence of T. 0. # County of Washington, ss. : T. C, being duly sworn, deposes and says : He is acquainted with L. F., named in the foregoing petition, and was present and saw him subscribe his name to the above consent. Sworn, &c. T. C. 440 APPENDIX OF FORMS. [CH. XIII. No. 236. LIKE PETITION — IlfFANT TJNDEE FOURTEEN TEAKS OF AGE. See ante, Tol. I., p. 430. To the Surrogate of the County ofWashington. The petition of A. H., of, &c., respectfully sh.ows : That B. H., late of the town of , in said county, departed this life on the day of , 18 — , without having appointed, by deed or will, any guardian for his children, to the knowledge or belief of your petitioner. That the said deceased left two children, under the age of fourteen years, to wit : J. H., aged years, and S. H., aged years, botli of whom are now residents of said town of . That the said infants are seized in fee-simple as tenants in common of a farm in said town, consisting of about acres of land, and worth dollars, the annual rents and profits of which are dollars. Tliat the said infants are also the owners of considerable personal property, and which is of the value of dollars, as your petitioner believes. Tour petitioner further shows, that the relatives of said infants, residing in said county, are your petitioner, who is the paternal uncle of said infants ; B. K. H., the mother of said infants, with whom they now reside, in aforesaid ; and O. H. and S. T., cousins of the said infants, residing in the same place. That the said infants have no other relatives residing in said county to the knowledge or belief of your petitioner. Your petitioner prays that L. F. may be .ippointed the guardian of the person and estate of said infants, until they arrive at the age of fourteen years, respectively, and until another guardian shall be appointed ; and that a day may be assigned for the hearing of said matter, and that an order may be entered, directing notice to be given of snch hearing to the relatives of said infants, residing in said county. That the said L. F. is a suitable and proper person to be appointed guar- dian for said infants, and he has consented to act as such, if appointed, and to give the requisite security. Dated, &c. . A. H. County of , ss. : A. H., the petitioner aoove named, being duly sworn, says : That the matters of fact alleged in the foregoing petition are true, according to the best of his knowledge and belief. Sworn, &c. A. H. [Annex consent of guardian, as in the lastformA CH. XIII.] APPOINTMENT OF GUARDIANS. 441 No. 242. AFFIDAVIT OF MINOB's PEOPEETT. See ante, Vol. I., p. 430. Oounty of Washington, ss. : T. 0., of, cfcc, being duly sworn, deposes and says : He is acquainted with R. H., the minor named in the annexed petition ; that the said R. H. is the son of B. H., late of , deceased, and is of the age of sixteen years and three months, as he verily believes. And this deponent further says, that the said R. H. is a resident of , in said county of Washington ; that the said R. H. is seized in fee-simple of a certain farm, consisting of acres of land, situated in said town of ■ , upon which land there is a dwelling-house, several barns, and necessary out- buildings; that the said farm, with its appurtenances, is worth about the sum of dollars, and that the rents and profits thereof are about dollars per year ; that the said R. II. is the owner of personal property of the value of dollars, which personal property is composed of the fol- lowing items, viz. : Ten shares of stock in the Insurance Company, worth . . . $1,250 A bond and mortgage on real estate in the county of , on which is due $ , and which is worth 3,000 Twelve cows, worth 600 One hundred sheep, worth 325 And household furniture, worth 750 Total $5,925 And deponent further says, that he is acquainted with L. F., the person nominated by the said minor as guardian ; that the said L. F. is the uncle of the said R. H., and is a proper and suitable person to act as guardian for the said R. H., as he believes. Sworn, &c. T. 0. No. 243. OEDEB DIEEOTINO APPOINTMENT OP OTJAEDIAN. See ante. Vol. I., p. 431. In the matter of the guardianship of the person and estate of R. H., a minor. On reading and filing the petition of B. H., a minor, showing that he is the son of , late of , deceased, and is aged fifteen years and three months, and is a resident of , in said county, and is seized and possessed of certain real and personal property therein mentioned, and nominating 442 APPENDIX OF FORMS. [CH. XIII. L. F., of, Sc, to be appointed guardian of the person and estate of the said minor ; and on reading and filing the consent in writing of the said L. F. to act as such guardian, if appointed ; and the affidavit of T. 0., annexed to the said petition, showing the circumstances of the said minor : It is or- dered that the said L. F. be appointed guardian of the person and estate of the said E. H., during his minority, on his entering into a bond to the said minor, with sufficient security, to be approved of by the surrogate, in the penal sum of dollars; conditioned that the said L. F. will faithfully, in all things, discharge the duty of a guardian to the said minor, according to law, and that he will render a true and just account of all moneys and property received by him, and of the application thereof, and of his guardian- ship in all respects, to any court having cognizance thereof, when thereunto required. No. 244. BOND OF GUARDIAN. See ante, Vol. I., p. 433. [Sa7ne substantially as in No. 234, to the (*), and then proceed .•] The condition of this obligation is such that, if the above-bounden L. F. shall fiiithfully, in all things, discharge the duty of a guardian to the above- named E. H., minor, according to law, and shall render a true and just ac- count of all moneys and property received by him, and of the application thereof, and of his guardianship in all respects, to any court having cogni- zance thereof, when thereunto required, then this obligation to be void, otherwise to remain in full force and virtue. Sealed and delivered in presence of [Signatures.] [Add achnoiDledgment and affidavit of surety or sureties, as in No. 261.] APPEovAL [to he indorsed on bond]. I approve of the surety [or, sureties] in the within bond. Dated, Se. U. G. P., Surrogate. No. 245. « OEDBE APPOINTING GUAEDIAN ON FILING BOND, ETC. See ante, Tol. I., p. 433. [Title, as in No. 243.] L. F. having produced the bond required by the former order in this mat- ter, duly executed, with security, approved by the surrogate. Now on filing the said bond, and the affidavit of justification thereto annexed, it is ordered that the same be approved, and that the said L. F. be appointed guardian of OH. XIII.] APPOINTMEN'l' OF GUAEDIANS. 443 the person and estate of the said R. H., during his minority, and that the appointment be made out and recorded forthwith in the book provided for that purpose. No. 246. LETTEES OF GUARDIANSHIP. See ante, Vol. I,, p. 433. The People of the State of New York, by the grace of God, free and independent. To L. F., of, &c., send greeting : Whereas, an application in due form of law has been made to our surro- gate of our county of , to have you, the said L. F., appointed tlie guar- dian of the person and estate of R. H., a minor, residing in , of the age of fourteen years ; and whereas you, the said L. F., have consented to become such guardian, and have duly executed and delivered a bond, pursuant to law, for the faithful discharge of your duty as such guardian ; and we being satisfied of the suflBciency of the said bond, and that you, the said L. F., are a good and respectable person, and in every respect competent to have the custody of the person and estate of said minor, do, by these presents, allow, constitute, and appoint you, the said L. F., the general guardian of the per- son and estate of said minor, during his minority, hereby requiring you, the said guardian, to do and perform all the matters and things required by law of such guardian, and to render an account of all moneys and property re- ceived by you, and of the application thereof, and of your guardianship in all respects, to any court Jiaving cognizance tliereof, when thereunto required. In testimony whereof, we have caused tlie seal of ofBce of our pj. S.] said surrogate to be hereunto aflBxed. Witness, U. G. P., surrogate of our -said county, at Sandy Hill, in said county, the day of , 18—. U. G. P., Surrogate. [Annex to the Utters a copy of the 57th section of chapter 460 of the Laws of 1837, which is as follows .•] "§ 57. Every general guardian appointed by the surrogate shall, annually after such appointment, so long as any part of the estate or the income or pro- ceeds thereof remain in his hands or under his control, file in the office of the surrogate appointing him an inventory and account, under oath, of his guar- dianship and of the amount of property received by him and remaining in his hands, or invested by him, and the manner and nature of such investment, and liis receipts and expenditures in form of debtor and creditor." 444 APPENDIX OF FOEMS. [CH. XIIL m, FOEMS IN RbPEEENCE TO DUTIES, ACCOUNTABILITY, AND Removal of Guardians. No. 247. gtjaedian's inventoet and aooount cueeent. See ante, Vol. I., p. 440 ; and see also Ch. Court Rules, 1844, p. 169, and Eules of Supreme Court in Eq., 1847, p. 102. StrPBEMK COUET. In the matter of the guardianship of E. H., an infant. } INVENTOET. A just and true inventory of the whole real and personal estate of the above-named infant, R. H., committed to the care of B. H., his guardian, showing the manner in which the funds are invested, the income thereof, &c., &o. A farm of 100 acres of land, situated in the town of , in the county of , estimated to be worth about $50 per acre . . $5,000 This farm is now occupied by J. D., under lease, at the annual rent of 300 A bond and mortgage for $3,000, executed by 0. E., and cover- ing lands in ths town of aforesaid, worth double the amount of the mortgage, and upon which there is no other incumbrance, the annual income from which is . . . 210 B. H., Guardian. [Proceed in like manner in respect to other items.] ACCOITNT CUEEENT. The Estate of E. H., an infant, to B. H., guardian . . . Dr. 1864. May 2. To cash paid M. Low's bill for hoard and lodging of said infant, from Jan. 1, to this date $75 00 June 4. To Dr. Jones' bill for medical attendance . . . 9 17 [Proceed in liJce manner with the other items.} CONTEA. 1865. ' Or. Jan. 1. By balance due as by last annual aooount . . . $27 32 April 1. By cash received, six months' rent on farm of J. D. . 150 00 [Continue with the items as iefore, and foot up the columns, so as to show the balance due the estate, if any.} Dated, Sc. B. H., Guardian. CH. XIII. J ACCOUNTING OF GUAEDIANS, ETC. 445 City and county of , ss. B. H., the general guardian of the above- named infant, being duly sworn, says : That the above is a just and true ito- ventory of the whole real and personal estate and effects of the above-named infant, so far as the same have come to her knowledge ; and a just and true account of all the receipts and disbursements on account of the said estate [since this deponent rendered her last account current in this matter]. [In the original or first account, the words within the iracJcets are to ie omitted.] Sworn, de. ' B. H. No. 248. PETITION OALLINft GENERAL GUAEDIAN TO AOOOITNT. See ante, Vol. I., p. 441. [ Title as in last form.] To the Supreme Court of the State of New York. The petition of A. B., an infant, by his next friend, L. P. C, respectfully shows : That your petitioner is an infant of the age of years, and resides with his mother, in the town of , (&c. That by an order of the Supreme Court, dated, Sc, and duly entered in the clerk's office of the county of , C. D., of, &o., was appointed general guardian of said infant, on his executing and filing with the clerk of said county the security mentioned in said order, duly approved by a justice of this court ; which security was so executed and approved, and on the day of , 18 — , the said security was duly filed witli the said clerk, and thereupon the said guardian entered upon the duties of his said trust, and took into his possession all the estate, property, and effects, of his said ward. (*) That shortly after his appointment, and on the day of , 18 — , the said guardian filed in said clerk's office an inventory of the said infant's estate, showing th.at personal property, to the amount of $ , consisting of [state the hind of property, gimng the items thereof], had come to his posses- sion. Xhat the said guardian has not, since then, filed any invenfory or ac- count current, and has not rendered any account of his guardianship, — but, although often requested, refuses so to do. That the said guardian has received the whole of the income and profits of said infant's estate, amounting in the aggregate up to the present tirrje, as your petitioner believes, to the sum of dollars, that, &c., [set out the cause of complaint against the guardian, and the facts showing his liability to account]. Wherefore your petitioner prays, that the said guardian may be required to account with your petitioner for the trust fund and property in his hands, as aforesaid ; and that a referee may be appointed to take and state his ac- counts, according to the practice of the court ; and that the said guardian be charged in his accounts with the 'co%ts of these proceedings ; or for such further or other relief as the court shall think proper to grant. Dated, Sc. A. B. by L. P. C, his next friend. [Add verification, substantially as in No. IJ. 446 APPENDIX OF FOEMS. [CH. XIII. No. 249. NOTICE TO GUARDIAN. See ante, Vol. I., p. 441. [Title as in No. 247.] To 0. D., Guardian. Take notice, that upon the petition, with a copy whereof you are here- with served, a motion will be made at, &c., on, &c., that the prayer of "the said petition he granted, and also for an order of reference to take an ac- connt of the trust fund and property in your hands, as guardian of the said A. B., infant above nam il ; or for such further or other order as the court may think proper to grant. Yours, &c.. Dated, &c. T. 0., Att'y for Petitioner. No. 250. CEDE : 01? EEFEEENOE DIEBOTINO AN AOOOXTKTDfG. See ante, Vol. I., p. 442. At a special term, &c. \as in 'No. 6]. [Title as in No. 247.] On reading and filing the petition of A. B., an infant, by L. P. 0., his next friend, duly verified, and bearing date the ■ day of , 18 — , and due proof of the service of notice of the presentation thereof, upon C. D., the general guardian of said infant, and on motion of T. 0.,.the attorney for the petitioner, no one appearing in opposition thereto, [or, after hearing J. W. F., of counsel for the said C. D.], it is ordered (*) that the said C. D. forthwith account for the trust funds and property in his hands as guardian of said in- fant ; and that it be referred to L. P., Esq., of, &c, as referee, to take and state such account, and report thereon to the said court with all convenient speed [and tliat the said guardian be charged in his accounts with the costs of these proceedings, now here adjusted at dollars]. No. 251. EEPOET OF EEFBEEE. See ante, Vol. I., p. 443. [Title as in No. 247.] To the Supreme Court of the State of New York. The undersigned, referee, to wliom it was referred by an order of this court, dated the day of , 18—, to take and state an account of the trust funds and property remaining in the hands of 0. D., as guardian of the said infant A. B., respectfully reports : (*) That I caused notice to be given to the said guardian to appear before me, and submit his inventory and account of said trust funds and property, duly CH. XIII.] ACCOUNTING OP GUARDIANS, ETC. 447 verified, and his papers and vouchers in support thereof. That the said guardian accordingly appeared liefore me witl\ said inventory and account, d;c., and that the same are hereto annexed, marked schedule A. I further report, that on such hearing, having examined the said guardian on oath, and witnesses produced by him, touching the said account and the items thereof, and his said papers and vouchers, I proceeded to take and state such account, and to ascertain the balance of such trust fund and property remaining in said guardian's hands ; and that the schedule hereto annexed, ' marked schedule B, is an exhibit of said account so taken and stated by me, making all just allowances to said guardian for his disbursements, fees, and commissions relative to his said trust; and for all payments and expenditures properly chargeable thereon ; and that my fees as referee in this matter are dollars. All which is respectfully submitted. Dated, Sc. L. F., Referee. [Annex the schedule, indorsed iy referee.] No. 252. OEDER OONFIEMIIfG EEPOET ABSOLUTELY, OR AS MODIFIED. See ante, Vol. I., p. 443. At a special term, Sc. [as in Wo. 6]. [Title as in No. 24T.] This matter having been brought to a hearing upon the report of L. F., Esq., the referee herein, to whom it was referred to take and state an account of the trust funds and property remaining in the hands of 0. D., as guardian of said infant, A. B., which report is dated the day of , 18 — , and upon the exceptions to said report : Now, therefore, after hearing counsel for the respective parties, on motion of T. C, of counsel for the petitioner, it is ordered that the said exceptions be and the same are hereby overruled, and the said report is in all things hereby ratified and confirmed. (*) [Or, that all of said exceptions but the first be and the same are hereby overruled, and the said first exception allowed, and said report modified and corrected accordingly; and that said report, as so modified, be and the same is hereby ratified and confirmed.] No. 253. CLAUSE DIEEOTINO REMOVAL OF GUARDIAN, AND EEFEEENOE TO APPOINT ANOTHEE GtTAEDIAN. See ante, Yol. I., p. 443. [Same as in last form to the asterisk (*). and then add :] And it is further ordered that the said guardian, 0. D., for tbe misconduct 448 APPENDIX OF FORMS. [CH. XIII. aforesaid, be and he hereby is removed from his guardianship and the further execution of said tnist. And that it be referred to L. F., Esq., referee afore- said, to nominate a suitable person for guardian to talie the place of the said 0. D., and that the said referee report to the court the security proposed by the person so nominated by him and the sufficiency thereof. No. 254. PETITION OF GUAEDIAN TO BE DISOHAB&ED FBOM HIS TBTTST. See ante, Vol. I., p. 441. [Title as in No. 247.] ' To the Supreme Court of the State of New York. The petition of 0. D., of, (fie, the general guardian of A. B., an infant, respectfully shows : That by an order of this court, bearing date the day of , 18 — , and duly entered in the oflSoe of the clerk of the county of , yonr peti- tioner was appointed general guardian of said infant, on executing and filing the security in said order mentioned. That such security was thereupon executed, and, on the day of , 18 — , duly filed in said clerk's office, and thereupon your petitioner entered upon the duties of his trust as such guardian. That, as such guardian, he took possession of the property of his said ward, consisting of, c&a. [statement of property]. That your petitioner has now on hand of said property, <&c. [state property on hand]. Your petitioner further shows that his health is such as to incapacitate him from the discharge of the duties of guardian [or, that private business renders it necessary that he should go to Europe, and that he will be com- pelled to remain out of this country for several months, or any other proper cause], and that it is necessary, for the benefit of the estate of the said infant, that another general guardian of the person and estate and effects of the said infant should be immediately appointed in the place and stead of yonr peti- tioner ; that your petitioner should account and close his guardianship in the premises pursuant to the rules and practice of the court, and pay over all proper amounts and balances (which he is willing and hereby offers to do), and that his sureties may be discharged. Your petitioner, therefore, prays that an order may be granted, whereby your petitioner may be required forthwith to account before a referee touch- ing the receipts and disbursements of his said guardianship, and pass his ac- counts before him ; that such referee may be directed to make to your peti- tioner all just allowances ; and that your petitioner, on paying over the amount of balance to be found due by a report of such referee, may be dis- charged from all his duties and responsibilities as such guardian; and that the bond entered into by your petitioner's sureties, and , may be there- upon considered as canceled, and they be discharged from all responsibility in the premises, and so that a new guardian may be appointed in the place of your petitioner, and that your petitioner may hand over all property, CH. XIII.] ACCOUNTING OF GUARDIANS, ETC, 449 documents, and papers in his possession to Lis successor in said trust, or such further or other order as the court shall think proper' to grant. And your petitioner will ever pray, &c. Dated, Sc. 0. D. No. 255. THE LIKE, BY NEXT FKIEND, TO HEMOTE A QUABDIAN FOR MIBOONDUOT. See ante, Vol. T., p. 443 ; 2 Van Sant. Eq. Pr. 643 [Same a^ in Wo. 248, to the (*) ; then proceed, showing the misconduct charged, e. g. :] That said guardian has received the whole of the trust property and funds, amounting, as appears by his inventory on file, to the sum of dollars, all of which is personal property, and which, since the filing of said inventory, he has reduced to money. That he neglects to keep them properly invested, hut mingles them with his own, and uses them for his own purposes. That said guardian is now in embarrassed circumstances, and, as your petitioner is informed and believes, is insolvent [or, has become of intemperate habits, &e., lu'the ease may 5e]. Wherefore, your petitioner prays that said guardian may be removed from his trust, and that another gnardian of the-person and estate of eaid infant, and also, &c. [proceed as in the prayer for relief in No. 248, adding the fur- ther prayer that said guardian he directed to pay over to such new guardian the lalance of the property and funds which shall ie ascertained by said re- port, and found remaining in his hands]. And your petitioner will ever pray, &c.. Dated, dc. A. B., [Add verifieation, &g., as in No. 248.] By E. L. B., his next friend. No. 256. NOTICE TO GTJAEDIASr THKREOIT. See ante, Vol. I, p. 441. [Same, suistanUally, as in No. 249- Vol. 11.-29 450 APPENDIX OF FOEMS. [CH. XIII. No. 257. OKDBE OF EEFEEENOE THEEEON. See ante, Vol. I., p. 441 ; 2 Van Sant. Eq. Pr. 644. [Same tis m No. 250, to the (*), then add .■] that it be referred to L. F., of, &c., to take proof of all the material facts set forth in said petition, and to report thereon with his opinion to the court, with all convenient speed. It is fnrther ordered, that such guardian do forthwith account before said referee for the trust funds and property and tJie revenue and proceeds there- of which have come to his hands as such guardian, and pass his accounts in full before said referee; and that, on such accounting, said referee make all just allowances to said guardian for his disbursements, expenditures, &c., which are properly chargeable on said trust fund, and report thereon to this court with all convenient speed. [If proper also., a clause may ie added, diTeating the referee to nominate a proper person to te appointed as substi- tuted guardian, and also to report upon the sujflcienay of the proposed sure- ties, and fixing the amount of the hond.^ No. 257(A). EEPOET OF EEFEEEB THEEEON. See ante, VoL L, p. 443; 2 Van Sant. Eq. Pr. 644. [Title as in No. 24-7.] To the Supreme Court of the State of New York'. In pursuance of an order in this matter, bearing date on, &c., by which it was referred to me to [state substance of order'], I, the subsci"iber, referee, as aforesaid, do respectfully report that, having been attended by said parties and their counsel, and having heard the proofs and allegations in regard to the matters so referred, find that all the material allegations set forth in said petition are true [or, that said guardian, the said C. D., did on, &c., setting forth specifically the facts so found]. And I further report that, from the facts so found by me, I am of the opinion that said 0. D. has mismanaged [or, is incapable, or, is an improper person to manage] said trust property and estate, find ought to be removed from such guardianship. And I further report that, &c. [proceed as in No. 251, from the (*) to the end. If the order direct an inquiry as to theproposed substituted guardian, insert as follows :] And I further report that I liave taken proofs and liave examined in regard to the person proposed on behalf of the petitioner for substituted guardian, and the sufiiciency of his proposed sureties ; and that 0. F. B., of, &c., the person so proposed, is in all respects a suitable and proper person to be appointed guardian, on his executing and filing with the clerk of CH. XIII. J ACCOUNTING OF GUARDIANS, ETC. 451 county, a duly acknowledged or approved bond, in the penal sum of dollars, being double the amount of the balance so remaining in said guar- dian's hands, with G. T. and L. P. S., of, &e., freeholders, residing in said county, being the persons so proposed as security, who have duly justified before me, and who, in my opinion, are ih all respects sufficient. All which is respectfully submitted. Dated, &c. G. S. 0. No. 258. OEDBE THEEEON, REMOVING GITAEDIAN, APPOINTING 8UOOHS80B, AND DIKBOT- ING PAYMENT OVER TO HIM OP TBOST FUND. See ante, Vol. I., p. 443 ; 2 Van Sant. Eq. Pr. 645. At a special term, &c. [as in No. 6]. [Title as in No. MT]. On reading and filing the report of S. G. G., referee herein, dated, (&c. ; and whereby he reports tliat, Sc. [recite substance of report] ; and on proof that no exceptions have been filed to such report within the time prescribed by the rules; and after hearing A. N. W., Esq., of counsel for and on behalf of the above infant, and J. W. F., Esq., for the said guardian, it is ordered and adjudged that the said C. D. be, and he is hereby discharged from the further performance of his trust as guardian of the person and estate of the said infant A. B. ;. that the said 0. F. B. be, and he is hereby appointed guar- dian of the said infant, on executing the bond in such amount and with such sureties as so reported by the said referee, for the faithful execution of his trust ; and that he be deemed fully appointed after he and his sureties shall have executed such bond, and it shall have been duly acknowledged or proved, and be approved as to its form and execution by the said referee [or, by one of the justices of this court], and been filed by the clerk of this court, in the county of . And it is further ordered that the said 0. D. pay over to the said 0. F. B. (*), within days after he shall have so given and filed such security, as aforesaid, the balance of property in his hands, according to the said referee's report, and surrender to the said 0. F. B. all the property, real and personal, of the said infant in his hands. And in default of his doing so, in whole or in part, the said infant, by his next friend, is at liberty to move for an attachment or to put the bond of the said 0. D. in suit, as he may be advised. And, inasmuch as the present reference and appointment of a new guardian has been caused by the misconduct of the said 0. D., it is also ordered and adjudged that tlie said 0. D. pay all and every the costs and disbursements of the same, namely, dollars, to the attorney of the infant, and to the referee dollars ; in all, dollars ; and that execution go therefor. But which sum, in the first instance, may be made good and paid by the said 0. F. B., out of the first moneys which shall come to his hands. 452 APPENDIX OF FORMS. [CH. XIII. and in paying tlie same that he take receipt therefor, and be allowed the amount in hig accounts, but if the said amount shall be paid by or made out of the said 0. D. by execution, then the amount shall be paid to the said 0. F. B., to make good the amount paid in the mean time by him. IV. Forms on Sales of Infants' Estates. No. 258.(A) PETITION FOE OEDEE TO SELL IN BEHALF OF INFANTS. See ante, Tol. I., p. 449. In Supeeme Couet [or other court] : To the Supreme Court of the State of New York {or. To the County Court of the County of ; or, to the Court of Common Pleas of the City and County of New York] : The petition of A. B., an infant over the age of fourteen years, and of E. B., an infant under the age of fourteen years, by C. B., their mother and next friend, respectfully shows : That your petitioner, A. B., is an infant of the age of sixteen years and upward, and resides at — . — , in the county of , and has no general guardian. That your petitioner, E. B., is an infant of the age of. twelve years, and resides at -, aforesaid, and has no general guardian ; and that the said infants are two of the children and heirs at law of W. B., late of, iSx., deceased ; and that as such heirs at law they are each entitled to an undivided fifth part, subject to the right of dower of the said C. B., their mother, of a lot of land situated in the town [or, city] of , in tlie county of , and State of New York, and bounded and described as follows : [insert description]. That the said lot of land is worth about $ — ■ — ; but is wholly unproductive, being wild and unimproved [or, that tlie said lot of land is worth about the sum of $ , and produces an annual income of $ ]. That the brothers of your petitioners, R. B., J. B., and S. B., own the other three-fifths of the real estate above described, and threaten to commence proceedings against your petitioners for the partition thereof. And your petitioners further show that they do not own any other real estate than that above described ; and that they have no personal estate of any kind, or to any amount whatever, except their necessary wearing apparel [or, that each of them is the owner of an undivided fifth part of another piece or parcel of land, situated, Se., which is worth about $-: ; but which is entirely unimproved and unproductive; and that your petitioners are each the owner of the following personal property, to wit: The said A. B., is, So., and the said E. B., is, <&c. [state the property, its situation and value]. And that the property, real and personal, above mentioned, is the only property owned by your petitioners, or in which they have any interest]. CH. XIII.] SALES OF INFANTS' ESTATES. 453 And your petitioners further show, that the said 0. B., the mother of the said infants, as the widow of the said W. B., deceased, tlie father of said infants, is entitled to dower in the real estate ahove described, and that she has no means of support for herself and her said infant children, except what she and they may acquire hy their industry ; and that it is necessary the said premises, or some part thereof, should be sold, and the proceeds, or some part thereof, be applied toward the necessary education and maintenance of said infants. And the said 0. B. hereby oilers to unite in the sale of said premises, and to release her right of dower therein, upon condition that one- third of the purchase-money be securely invested, and the annual interest thereof be paid to her during her natural life ; or that a gross sum be paid to her in lieu thereof, equal in value to her life estate therein, to be ascertained upon the principle of life annuities. Your petitioners, therefore, pray, that the said real estate may be sold by and under the direction of this court ; and that W. R., of the town [or, city] of , counselor at law, who is tlie uncle of [or, who is in no way related to] the said infants, may. be appoiniid their special guardian for the purpose of selling the interests of said infants in said real estate. And J. N. D. and T. L., of, <&a., gentlemen, are proposed as sureties for the said W. R. as such special guardian, to join with him in a bond, in such penalty, and upon such condition, as shall be required. 0. B. A. B. State of New York, ) County of • , ) ' On this day of , 18—, before me personally appeared 0. B. and A. B., above named, and being severally sworn, each for herself deposes and says that she has read [or, heard read] the above petition subscribed by her, and knows the contents thereof, and that the same is true of her own knowl- edge, except as to the matters which are therein stated on information or belief; and that as to those matters, she believes it to be true. J. H. F., Justice of the Peace. CONSENT OF GUARDIAN. I hereby consent to be appointed the special guardian of the above peti- tioners, for the purposes mentioned in the above petition. Dated, &e. W. R. Witness, L. P. 0. No. 259. AFFIDAVIT OF DISINTEBESTBD PEESONS. See ante, Vol. I., p. 449. State of New York, County of , E. F., farmer, of the town [or, city] of , in said county, and G. H., of the same place, being severally sworn, each for himself, deposes and says, 454 APPENDIX OF FORMS. [CH. XIII. t.liat he is acquainted with A. B. and E. B., the petitioners named in the annexed petition, and also with their property, ^vnd the situation and value thereof. That he has read [or, heard read] the said petition, and knows the contents thereof, and that the facts and circumstances therein stated are true, according to his best knowledge and belief. [Or, that he is acquainted with A. B. and E. B., infant children of W. B., late of, cfec, deceased ; that they reside in the town [or, city] of , in said county; that the said A. B. is an infant over the age of fourteen years, and has no general guardian, and the said E. B. is an infant under the age of fourteen years and has no general guardian. That he is also acquainted with the real estate de- scribed in the petition of said infanta, hereto annexed, and with the situa- tion and value thereof. That the said real estate is worth about dollars, but is wild and unimproved, and wholly unproductive. That in the opinion of deponent a sale of said real estate would be for the benefit of said infants, and that his reasons for that opinion are the same as those stated in said petition.] E. F. Sworn, &c. • G. H. No. 260. OEDER OF EEFEEBKOE, AND FOE APPOINTMENT OF GHAKDIAN. See aute, Vol I., p. 453. At a special term,. Sc. [as in No. 6]. In the matter of the application of A. B. and E. B., infants, for leave to sell their real estate. On reading and filing the petition of A. B., of, «6e., an infant over the age of fourteen years, who has no general guardian, and of E. B., an infant under the age of fourteen, who has no general guardian, by 0. B., their mother and next friend, dated the day of , 18 — , praying that the real estate therein described may be sold, by and under the direction of this court ; and that W. R., of, Sc, be appointed special guardian, for the purpose of conducting the sale ; and on reading and filing the affidavits of E. F. and G. H., verifying the material facts and circumstances alleged in said petition; and it appearing satisfactorily to the court that there is reasonable ground for the application, it is, on motion of L. P. 0., attorney for the said petition- ers, ordered, that the said W. K. be, and he hereby is, appointed the special guardian of the said infants for the purposes of the application, upon execut- ing and filing with the clerk of the county of the bond of the said W. R., and of J. N. D., and T. L., to each of the said infants, in the penalty of S — , conditioned for the faithful performance, by the said W. R., of the trust reposed in him as such guardian, and for paying over, investing, and accounting for all moneys that shall be received by such guardian, according CH. XIII.J SALES OF INFAJSTS' ESTATES. 455 to the order of any court having authority to give directions in the premises ; and that he will observe the orders and directions of the court in relation to such trust ; which bond shall be approved of, as to its form and manner of execution, by a justice of this court, signified by his approbation indorsed thereon. And it is further ordered that it be referred to L. F., Esq., of, &a., to ascertain the truth of the matter.^ stated in said petition, and whether a sale of the premises therein described, or any and what part thereof, would be beneficial to the infant, and the particular reasons therefor; and to ascer- tain the value of the said premises, and of each separate lot or parcel thei-eof, and the terms and conditions upon which it should be sold; and whether the said infants, or either of them, is in absolute need of any and what part of the proceeds of the sale for his support and maintenance, over and above the income thereof, and his other property, together with what he might earn by his own exertions ; and also to ascertain the value of the life estate of 0. B., the mother and next friend of said infants, in the said premises, on the principle of life annuities, by reason of her right of dower in said premises. And it is further ordered, that no proceedings be had before said referee until tlie special guardian produces a certificate of the clerk, in due form, that the security herein required has been duly proved, or acknowledged and filed, agreeably to this order. No. 261. BOND OP SPBOIA.L GUAEDIAN. See ante, Vol. I., p. 452. Know all men by these presents, that we, W. R., counselor at law, of the town [or, city] of , in the county of , and State of New York, and J. N". D. and T. L., gentlemen, of the same place, are held and firmly bound unto A. B., in the penal sum of $ , to be paid to the said A. B., his heirs, executors, administrators, or assigns ; for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , 18 — . Whereas, by an order of the Supreme Court of the State of New York [or other court], made on the day of — — , the ahove-bounden W. R. was appointed the special guardian of A. B., an infant, over the age of four- teen years, for the purpose of selling the real estate of said infant, mentioned in said order, upon the execution of the bond therein required : Now, therefore, the Condition of the above obligation is such, that if the above- boiinden W. R. shall faithfully perform the trust reposed in him as such special guardian, and shall pay over, invest, and account for all moneys that shall be received by him, according to the order of any court having au- thority to give directions in the premises ; and shall observe the orders and 456 APPENDIX OF FORMS. [CH. XIII. directions of the court in relation to such trust, then the above obligation to be void, otherwise to remain in full force and effect. Sealed and delivered W. E. [Seal.] in presence of J. N. D. [Seal.] G. D. T. L. [Seal.] ACKNOWLEDGMENT OP BOND. State of New York, ) County of , ) On this day of , 18 — , before me personally came the above- named W. R., J. N. D., and T. L., to me known to be the individuals de- scribed in and who executed the above instrument, and severally acknowl- edged that they executed the same. J. H. F., Justice of the Peace. AFFIDAVIT OF SURETIES. f York, ) State of New York, County of J. N. D., of the town [or, city] of , in said county, and T. L., of the same place, the sureties named in the foregoing bond, being severally sworn, each for himself, deposes and says, that he is a resident and householder \or, freeholder] within the State of New York, and is worth the sum of % over and above all debts and responsibilities which he owes or has incurred, and exclusive of property exempt from execution. ^ Sworn, &c. J. N. D. T. L. OEKTiFioATE OF APPROVAL [to 5« indorsed on land']. I approve of the within bond, as to its form and manner of execution, and as to the sufficiency of the sureties. Dated this day of , 18 — . A. B., Justice of the Supreme Court. No. 262. OEETIFIOATE OF CLEEK. (a) See ante, Vol. I., p. 453. [Title as in No. 260.] I do hereby certify that the bond required by the order of this conrt, made on the day of , 18 — , to be given by W. E., the special guardian appointed by the court in this matter, has been duly proved \or, (o) This certiflcate, when obtained, is to be annexed to the referee's report. Sup. Court Sules^ Mo. 67. OH. XIII.] SALES OF INFANTS' ESTATES. ' 457 acknowledged], and filed in my office, agreeably to the said order. And I further certify that the said bond was approved as to its form and manner of execution, and the sufficiency of the sureties, by A. B., Esq., justice of the Supreme Court. Dated this day of , 18—. H. S., Clerk of County. No. 263. EEFEEEB'8 ebpoet. See ante, Vol. I., p. 454. [Title as in M. 260.] To *he Supreme Court of the State of New York [or other proper court]. In pursuance of an order made in this matter on the day of , 18 — , by which it was referred to me to ascertain the truth of the facts stated in the petition in this matter, and to examine and report thereon, agreeably to the said order, and to ascertain the value of the life estate, of C. B. in the said premises, on the principle of life annuities, I, the subscriber, the referee aforesaid, do respectfully report, that I have been attended by L. P. C, the attorney for the petitioners, who, before pro- ceeding with said reference, produced before me the certificate of the clerk of this court, that the bond required to be given by W. E., the special guar- dian appointed in this matter, had been duly proved [or, acknowledged] and filed in his office agreeably to the said order, and that the said bond had been approved by A. B., Esq., justice of the Supreme Court, which certificate is hereto annexed. And I further report that in my opinion a sale of the whole of the real estate belonging to said infants, and described in said petition, would be for the benefit of said infants, and that the reasons for my opinion are as follows : [state the particular reasons which in the opinion of the referee render a sale of the premises necessary or proper]. And I do further report, that I have taken testimony and examined into the matters alleged in said petition, and from the testimony so taken, and such examination, I am satisfied, <^c. [state all the facts in detail, required to be ascertained and reported, and substantially as follows .•] that the said real estate, described in said petition, is worth dollars [if there is more than one lot, state the value of each separately] ; that it is exceedingly unpro- ductive, and yields only an annual income to said infants of about dol- lars ; tliat in my opinion it will be for the interest of the said infants to have the said real estate sold upon the following terms and conditions, viz.: That so much of the proceeds of their shares or interests in the said premises as may be necessary to pay their respective proportions of the gross value of the right of dower of their mother, 0. B., therein, and the costs of these pro- ceedings be paid by the purchaser on the delivery of the deed ; and that the payment of the residue of the purchase-money of the interests of said in- 458 APPENDIX OF FORMS. [CH. XIII. fants be secured by the bond of the purchaser and a mortgage upon tlie said premises, to be given to the treasurer of the county of [or, to W. R., the special guardian aforesaid], in trust for the said infants, conditioned to pay the interest thereon, semi-annually, at the rate of seven per cent, per annum, and tlie principal in two equal installments, one of which shall be paid when the said A. B. shall arrive at the age of twenty-one years, and the other on the day when the said E. B. shall arrive at full age. I do further report that the said infants are not in absolute need of any part of the proceeds of said sale for their support and maintenance, over and above the interest or income thereof, and their other property, together with what they may earn by their own exertions. And I do further report that 0. B., the mother of the said infants, who is entitled to a right of dower in said premises, is willing to join in the said sale; and that I have ascertained the value of her life estate in the premises, on the principle of life annuities; and that the present value of the same is dollars. All of which is respectfully submitted. Dated, dc. L. F., Referee. No. 264. OKDBE AXJTHORIZmO OnAEDIAN TO OOHTEACT. See ante, Tol. I., p. 454. [Title as in No. 260.] At a special term, &c. [as in No. 6]. On rending and filing the report of L. F., Esq., the referee in this matter, appointed by an order of this court, dated the day of , 18 — , and which report is dated the day of , 18 — , from which report it ap- pears satisfactoi'ily to this court that the interests of tlie said infants will be promoted by a sale of their shares of the real estate described in the petition in this matter ; Now, on motion of L. P. 0., attorney for said infants, it is ordered that the said report be, and the same is hereby, confirmed. And it is'-further ordered that W. R., the special guardian of said infants, be, and he is liereby, autliorized and empowered to contract for the sale and conveyance of all the right, title, and interest of the said infants in and to such real estate, at a price not less than the sum specified by said referee in his report as tbe value thereof, and upon the terms and conditions therein specified. And it is also further ordered, that before executing any deed or instrument of conveyance of the said premises to the purchaser or purchasers thereof, tlie said guardian report to this court, upon oath, the terms and conditions of the agreement made by him for the sale of said premises. CH. XIII.J SALES OF INFANTS' ESTATES. 459 No. 265. KEPORT OF SPECIAL GTTAKDIAN, OF AGEEKMBNT TO BELL. See ante, Vol. I., p. 455. [Title as in N'o. 260.] , To the Supreme Court of the State of New York [or other proper court]. In pursuance of an order of this court, made in the above matter, on tlie day of -, 18 — , authorizing and empowering me, as the special guar- dian of the infants above named, to contract for the sale and conveyance of all the right, title, and interest of the said infanta in and to the real estate mentioned and described in the petition of the said infants in this matter, dated the day of , 18 — ; and to report upon oath the terms and conditions of the agreement made by me witli the purchaser or purchasers, before executing any deed or instrument of conveyance of the said premises; I, the said special guardian, do certify and report, that I have entered into a written agreement (subject to the api)roval of the court), with B. P., of, <£c., for the sale of all tlie right, title, and interest of the said infants in and to the said real estate, upon the following terms and conditions : The said B. P. to pay therefor the sum of $ , as follows : So much of the said pur- chase-money as may be necessary to pay the respective proportions of such infants, of the gross value of the right of dower of their mother, 0. B., therein, together with tlie costs of these proceedings, on the delivery of the deed ; and the payment of the residue of the said purchase-money to be secured by the bond of the purchaser, and a mortgage upon the said premises, to be given by him to the treasurer of the county of , or to such other person as the court may direct, in trust for the said infants, conditioned to pay the interest thereon, semi-annually, at the rate of seven per cent, per annum, and the principal in two equal installments, one of which shall be payable on the day when the said A. B. shall arrive at the age of twenty-one years, and the other on the day when the said E. B. shall arrive at that age. I do further report that the said 0. B. has executed a release of all her right of dower in and to the undivided two fifth parts of said premises owned by said infants, which release is hereto annexed ; and that the gross value of such right of dower in the premised owned by said infants is dollars; and the costs and expenses of these proceedings amount to dollars; after deducting which sums from the amount of the purchase-money, as aforesaid, there will remain the sum of dollars due the said infants col- lectively, to be secured as aforesaid, or dollars to each. And I further report that the above are the best terms upon which I could sell the said property ; and that, in my opinion, the premises are an ample security for the payment of the residue of the purchase-money aforesaid, and the interest thereon, as aforesaid. All which is respectfully submitted. W. R. Dated this day of , 18 — . 460 APPENDIX OF FORMS. [CH. XIII. County of , sa. W. R., the special guardian above named, being duly sworn, says, that he has read the above report, subscribed by him, and knows the contents thereof, and that the matters therein stated are true. Sworn, de. W. E. No. 266. OKDBR 0ONFIEMIN& EBPOET OP GUARDIAN, AND DIKEOTING A OONVKTANOB. See ante, VoL I., p. 455. At a special term, die. [as in No. 6]. [Title as in No. 260.] On reading and filing the report of W. R., the special guardian of the infants above named, made in pursuance of the order of this court, dated the day of , 18 — , stating that he had entered into a written agreement, subject to the approval of this court, with B. P., for the sale of all the right, title, and interest of the said infants in and to the real estate mentioned in said order, upon the terms and conditions specified in the said report; and that C. B., the mother of said infants, had executed an effectual release of her right of dower in said premises. Now, on motion of L. P. C, attorney for the said petitioners,' it is ordered that the said report, and the agreement therein mentioned, be and tlie same are hereby ratified and confirmed. It is further ordered, that the said special guardian, in the name of said infants, execute, acknowledge, and deliver to the said B. P. a good and sufficient conveyance of all the estate, right, title, and interest of the said in- fants in and to the premises aforesaid, upon his complying with the terms and conditions upon which, by the said agreement, the deed was to be delivered; and that the bond and mortgage to be executed by said purchaser, be execu- ted to the treasurer of the county of [or, to the said special guardian] ; and that the said mortgage be duly recorded in the clerk's [or, register's] office of said county, and the fees for recording paid thereon. And it is further oi'dered, that out of tlie purchase-money paid by the said B. P., upon the delivery of the deed, the said special guardian pay the sura of dollars to C. B. for her right of dower in the shares of tlie said infants in the premises, and take her receipt therefor ; and that he pay to the attor- ney for the petitioners the sum of dollars for the costs and expenses of these proceedings. And it is further ordered, that the moneys which shall be received by the treasurer of tlie county of , from time to time, for interest upon the bond and mortgage given by the purchaser, be paid over by him to the special guardian aforesaid, to be- applied by such special guardian to the maintenance and education of said infants [or, if the hand and mortgage are taken in the name of the special guardian, then : that the moneys which shall be received CH. XIII.J SALES OF INFANTS' ESTATES. 461 by suoh special guardian, from time to time, for interest upon ttie bond and mortgage given by the pnrcliaser, be applied by him to the maintenance and education of said infanta.] No. 267 DEED BY SPECIAL aXTAEDIAN. See ante, Vol. I., p. 456. This indenture, made the day of , 18 — , between A. B. and E. B., of, (fee, infant children of W. B., late of, &c., deceased, by W. E., their special guardian, parties of the first part, and B. P., of, &c., party of the sec- ond part. Whereas a petition was heretofore presented to the Supreme Court of the State of New York \or other proper coiirt], by the said A. B., an infant over the age of fourteen years, and having no general guardian, and said E. B., an infant under the age of fourteen years, and having no general guardian, by 0. B., their mother and next friend, praying for a sale of the right, title, and in- terest, of the said infants in the real estate therein mentioned ; and whereas suoh proceedings were afterward had in the said court, upon the said petition, that by an order of said court, made on the day of , 18v— , the said W. E. was appointed the special guardian of the said infants, for the pur- poses of the said application, upon his giving the security therein required ; and whereas such security, duly acknowledged and approved, was subse- quently filed by the said guardian, in the proper oflflce; and whereas, by an- other order of the said court, made on the day of , 18 — , the said W. E. was authorized and empowered to contract for the sale and conveyance of the right, title, and interest of the said infants in such real estate, at a price not less than that specified in the referee's report referred to in said order, and upon the terms and conditions therein mentioned. And whereas, in pursu- ance of the last-mentioned order, the said special guardian afterward made his report to the said court, dated the day of , 18 — , stating that he had entered into an agreement, subject to the approval of said court, with B. P., of, <£'c., for the sale of all the right, title, and interest of the said infants, in and to the said real estate, upon the terms and conditions therein mentioned; and whereas, by another order of said court, made on the day of , 18 — , it was ordered that the said report of such special guardian, and the agreement therein mentioned, be and the same were thereby ratified and con- firmed, and that the said special guardian, in the name of said infants, execute, acknowledge, and deliver to the said B. P. a good and suflSoient conveyance of all the estate, right, title, and interest of the said infants in and to the said premises, upon his complying with the terms and conditions upon which, by the said agreement, such deed was to be delivered. And whereas, the said B. P., the purchaser aforesaid has complied with the said terms and condi- tions ; Now, therefore, this indenture witnesseth, that the said parties of the first 462 APPENDIX OF FORMS. [CH. XIII, part, by their special guardian aforesaid, in virtue of the several orders afore- said, and in pursuance of the statute in such case inaxie and provided, for and in consideration of the sum of dollars to him in hand paid, at or before the ensealing and delivery of these presents, by the party of the second part, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, remised, released, and conveyed, unto the said party of the second part, his heirs and assigns forever, all the right, title, and interest of the said infants, . parties of the first part, of, in, and to the following described real estate and premises, situated in the town [or, city] of , in said county of , viz.: The undivided two-fifths of all that certain piece or parcel, Sc. [insert descrip- tion], to have and to hold the said premises with the appurtenances unto the saiJ party of the second part, and his heirs and assigns forever. In witness whereof, the parties of the first part, by their special guardian, aforesaid, have hereunto set their hands and seals, the day and year first above written. Sealed and delivered A. B. [l. s.] in presence of E. B. [l. s.] L. P. 0. by W. E., their Special Guardian. No. 368. RELEASE OF WIDOw's DOWBB, ANNEXED. See ante, Vol. I., p. 461. • Know all men, by these presents : That 1, C. B., of, &c., widow of W. B., deceased, for and in consideration of the sum of dollars to uie in hand paid, at or before the ensealing and delivery hereof, by B. P., of, cfec, the receipt whereof is hereby acknowledged, have granted, bargained, and sold, remised and released and quit-claimed, and by these presents do arant, bar- gain, sell, remise, release, and quit-claim unto the said B. P., his heirs and as- signs, all that, &c. [insert description]. To have and to hold the said premises, with the appurtenances, unto the said B. P., his heirs and assigns, to and for the use and behoof of him and his heirs and assigns forever. And the said 0. B., for herself, her heirs, executors, and administrators, doth covenant and agree to and with the said B. P., his heirs and assigns, that she hath not done any act whereby, or by means whereof, the said above-described prem- ises now are, or at any time have been, charged, incumbered, or affected in any manner whatever. In witness whereof, the said 0. B. has hereunto set her hand and seal this the day of , 18—. Sealed and delivered in 0. B. [l. s.] presence of A. B. [Add acknowledgment or proof, as in No. 44.] CH. XIII.J SALES OF INFANTS' ESTATES. 463 No. 269. aUABDIAN's FINAL REPORT. See ante, Vol. I., p. 462. {Title as in Ifo. 260.] To the Supreme Court of the State of N"ew York [or other court]. I, W. E., the special guardian of the above-named infants, having been directed by an order of this court, dated the day of , 18 — , to exe- cute, acknowledge, and deliver, in the name of said infants, to B. P. of, Sc. [recite substance of order], do respectfully report : That I have executed, acknowledged, and delivered, in the name of said infants, to the said B. P., a good and sufficient deed of said premises, he hav- ing complied with the terms and conditions of the said agreement; that I have paid the said sum of dollars for the dower right of 0. B. and have taken a receipt therefor; and that I have paid the said sum of dollars to L. P. C, attorney for the petitioners herein, and have taken a receipt therefor. I do farther report that I have taken the bond and mortgage of the said B.P. for the sum of dollars, covering the said premises, which bond and mortgage is executed to the treasurer of the county of [or as the ease may le], and tliat the same has been left by me in the clerk's [or, register's] office of said county, to be recorded, and the fees for recording paid thereon. All which is respectfully submitted. Dated, &c. W. E., Special Guardian. [Add verification as in No. 265.] No. 370. ORDER OONFIEMINa FINAL REPORT. See ante. Vol I., p. 462. At a special term, &c. [as in No. 6]. [Title as in No. 260.] On reading and filing the report of W. E., special guardian of, &c., bear- ing date the day of , 18 — , and on motion of L. P. 0., attorney for said guardian, it is ordered that the said report be, and the same hereby is, in all things ratified and confirmed. 464 APPENDIX OF FORMS. [CH. XIII. V. Forms in Peocebdings to Compel Specific Peefoem- ANCE of CoNTEACT OF AnCESTOE. No. 271. PETITION TO COMPEL SPECIFIC PEEFORMANOE OP CONTEACT OF ANOESTOE. See ante, Vol. I., p. 464 To the Supreme Court of the State of New York [or, to the County Court of the County of , or, to the Court of Common Pleas of the City :ind County of New York] : The petition of A. B., of, &a., respectfully shows: That on the day of , 18 — , J. K., of, Sc, now deceased, duly entered into a written contract with L. M.. of the same place, hy which the said J. K., for a good and vahiable consideration, covenanted and agreed to convey to the said li. M., on the day of • , 18 — , the following described premises, situated in the town of , in the county of , and State of New York, viz.: [desc'iibe premises]. That the said L. M., in consideration of the promises and agreements on the part of the said J. K., covenanted and agreed to pay to the said J. K., on the said day of , 18 — , the sum of dollars, and also on that day to execute and deliver to said J. K. the bond of the said L. M., in the penalty of dollars, conditioned to pay to the said J. K, on the day of , 18—, the sum of dollars, with interest thereon annually, and also his mortgage, covering the premises aforesaid, and conditioned as aforesaid, a copy of whicli contract is hereto annexed, marked "A," and to which, for greater particularity, your peti- tioner refers. Your petitioner further shows, that the said J. K. died on the day of , 18 — , without performing the said contract, and leaving three adult and tliree infant children him surviving. That, as heirs of the said J. K., the said children are now seized of the said premises in fee. That the names of said adult children are L. K., E. K., and B. K., and that they reside in aforesaid. That the names of said infant children are A. K., who is now aged five years; C. K., who is now aged ten years; and E. K., who is now aged fifteen years. That said infant children reside in afore- said, and have no general guardian. Your petitioner further shows, that he was duly qualified and appointed, by the surrogate of the county of , as the executor of the last will and testament of the said J. K. [or, as the administrator of the estate of the said J. K. {a)], late of aforesaid, deceased, on the day of , 18 — . That your petitioner is desirous that a specific performance of the said contract, on the part of said , infants, should be decreed by the court. (a) The application may also be made by the surviving party to the contract, or any other person interested in it. 2 Hev. Stat. IM, see 169, cf/nte. Vol. I., p. 463. OH. xiilJ speotfio peefoemance. 465 That the said L. M. is also willing that such performance should be decreed, as are also the said adult children, as will more fully appear by the written consent of said L. M. and said adult children, which is hereto annexed, marked "B." Your petitioner therefore prays that an order may be entered, directing the said infant children to convey to the said L. M. all their right, title, and interest in and to the said premises, which they derived from the said J. K., as aforesaid, according to the terras of said contract, upon the performance, by the said L. M., of the covenants and agreements to be performed by him in and by said contract, or that the guardian aA litem of said infants execute such conveyance in the name of such infants, upon the performance by said L. M. aforesaid. And for such other or further Order or relief in the prem- ises as may be just. A. B. [Add verification as in No. 258, and annex schedules mentioned in the petition.^ No. 272. NOTICE OF MOTION TO COMPEL SPEOTFIO PERFOKMANOE BY INFANTS, ETC. See ante, YoL I., p. 464 In Supreme Coitrt [or other court}. In the matter of an application to compel a specific performance by infants of the contract of their ancestor to convey land. Sir: Take notice, tliat I shall move this court, at the next special term thereof, to be held at the Court House in , on the day of next, at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order that [follow, substantially, the prayer in the last form]. And for such other or further relief in the premises as may be just. Tours, &c., L. P. C, Att'y for Petitioner. To L. M., &c. No. 273. order diekoting specific performance. See ante, Vol. I., p. 464. [Title as in last form.] At a Special Term, Ac. [as in No. 6]. On reading and filing the petition of A. B., executor of the estate of J. K., . deceased, dated the day of , 18—, showing that, &e. [rficite the substance of the petition] ; and on reading and filing due proof of the service of said petition, and notice of motion, on L. M. [and other parties inter- VOL. n.— 30 466 APPENDIX OF FORMS. [CH. XIII. ] ; and after hearing L. P. 0., of counsel for the petitioner, W. I. B., of counsel for L. M., and others above mentioned; and J. L., the guardian ad litem of A. K., C. K., and E. K., infant children of said J. K., deceased. (*)• It is ordered that J. L., the guardian ad litem of said infants, in the name of said infants, execute, acknowledge, and deliver to L. M., above men- tioned, a good and sufficient conveyance of all the estate, right, title, and interest of the said infants in and to the premises aforesaid, upon his com- plying with the terms and conditions to be performed on his part under the contract aforesaid. It is further ordered, Se. [add clause in reference to coats, following the direction of the court.] yi. EoRMs IN Proceedings to compel Infant Trustees to CONVEY. No. 274. PETITION TO COMPEL INFANT TRUSTEE TO CONVEY. See ante, Tol. I., p. 470. State of New York, ) In Supreme Oottrt. j To the Supreme Court of the State of New York. The petition of A. B., of, (fee, respectfully shows: That he is the general guardian of 0. D. (a), an infant residing at, &c. ; that the said infant is seized and possessed of the following lands and ])reraise3, situated in the town of , in the county of- -— , and State of New York, and described as fol- lows : [insert description] ; which said lands and premises are held by the said infant in trust only, for E. F. and G. H., of, &c. That, &c. [here set forth the character of the trust, and the particular facts to show that the infant should cowuey the premises, Sc, &c.] Your petitioner therefore prays, that an order may be entered, directing the said infant to execute a conveyance of the lands and premises aforesaid, with the appurtenances, to the said E. F. and G. H., and their heirs and as- signs, forever, or that the guardian of such infant execute such conveyance in the name of such infant. And for such further or other relief as may be just. A. B. [Add verification as in No. 258.] (a) The petition may also be presented hj any person in any way interested In the tmst prop- erty, or in its transfer or conveyance. 2 JSev. Stat. 194, sec. 167. CH. XIII.] TO COMPEL COKVEYANCE. 467 No. 275. NOTICE OP MOTION TO COMPEL INFANT TETTSTEK TO CONVEY. See ante, Vol. I., p. 410. In Sdpeeme Couet. In the matter of an application to compel C. D., aa infant trustee, to convey real estate. Sir, — Take notice, that I shall move this court at the next special term thereof, to be held at the Court House in , on the day of next, at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order that \ follow sulstantially the prayer in the petition, ante, No. 274]. And for such other and further relief as the court may think proper to grant, which motion will be founded upon the petition, with a copy whereof you are herewith served. Dated, &c. Yours, &c., L. P. 0., Att'y for A. B., Guardian, &c. To [names o/pwrties interested]. No. 276. OEDEK DIEEOTINO OONVETANOB BY INFANT TEUSTEES. See ante, Vol. I., p. 470. [Follow substantially No. 273 to the (*) and then proceed :] It is ordered, that .1. L., the guardian ad litem of said infant, in the name of said infant, execute, acknowledge, and deliver to E. F. and G. H. above named, a good and sufficient conveyance of all the estate, right, title, and interest of the said infant, as trustee as aforesaid, in and to the following premises, described in said petition, viz. : [in,sert description]. It is further ordered that the said E. F. and G. H. pay to the said guar- dian ad litem dollars costs of this proceeding [or other direction in refer- ence to costs]. 468 APPENDIX OP FOEMS. [CH. XIV. CHAPTER XIV. FORMS m PROCEEDINGS BY AND AGAINST INSOL- VENT DEBTORS. No. 282. APPLICATION TO APPOINT TEUSTEE8 OP BSTATE OF DEBTOR OONPINED FOR CRIME. See ante, ToL I., p. 496. To D. P. I., Justice of the Supreme Court [or other officer]. The undersigned, A. B., of, Sc, a creditor [or, relative] of 0. D. [or, a relative of E. D., wife of 0. D.], hereby makes application for the appoint- ment of trustees to take charge of the estate of said 0. D., who is now im- prisoned in the State prison at , in the State of New York ; which applica- tion is made under and in pursuance of article second, of title first, of chapter fifth, of part second of the Revised Statutes. A. B. No. 283. AFFIDAVIT TO ACCOMPANY THE ABOTE APPLICATION. See ante, Yol. I., p. 49G. State of New York, i County of , J ' A. B., of said county, being duly sworn, deposes and says, that 0. D., the person named in the annexed certified copy of sentence of conviction, is now actually imprisoned in. the State. prison at , in the State of New York, under and in pursuance of the said sentence of conviction. That this deponent is a creditor [or, relative] of the said C. D. [or, a relative of E. D., wife of said C. D.], and that the said C. D. is indebted to this de- ponent [or, to E. F., of, Sc] in the sum of dollars, on account for goods, wares, and merchandise sold and delivered to the said 0. D. by this deponent [or, by the said E. F.] A. B. Svvorn to, <&c. [as in No. 286], \ Annex a certified copy of the sentence o/ conviction.] CH. XIV.] TWO-THIED ACT. 469 No. 284. APPOINTMBNT OF TKTJSTBBS. See ante, Vol. I., p. 496. "Whereas, A. B., a creditor [or as the ease may le] of C. D., a debtor confined for crime, did, on the day of , 18—, make application to me for the appointment of trustees to take charge of the estate of the said 0. D., and did also produce a copy of the sentence of conviction of the said 0. D., duly certified by H. S., clerk of the court of [name of court he/ore which the conviction was had], under his seal of office, by which court the said sentence of conviction was passed, together with an affidavit of the said A. B., showing that he is a creditor [or, relative] of the said 0. D. [or, a relative of E. D., wife of said C. D.], and that the said 0. D. is actually im- prisoned under the said sentence, and is indebted to the said A. B. [or other person] in the sum of dollars. Now, therefore, I, A. 0. H., justice of the Supreme Court [or other officer] do, in pursuance of the authority to me given by article two, of title one, of chapter five, of part second of the Revised Statutes, hereby appoint L. M. and O. P., two fit persons, to be trustees of the estate of the said 0. D., with such powers concerning the estate of the said 0. D. as are conferred by the said statute. Given under my hand this day of , 18 — . A. 0. H. No. 285. PETITION FOE DISOHARSE FROM DEBTS — TWO-THIED ACT. See ante, Vol. I., p. 500. To the Honorable D. P. I., Justice of the Supreme Court [or other officer The petition of Gr. L., an insolvent debtor and an inhabitant, now actually residing within the city and county of New York [or, other place], and others whose names are hereunto subscribed, creditors of the said insolvent, residing within the United States, respectfully shows : That the said G. L., by reason of many unforeseen circumstances, has become insolvent, and wholly unable to Day his debts ; wherefore, he and your other petitioners are desirous that his estate should be distributed among his creditors in payment of their debts so far as the same will extend ; and for that purpose pray that all his estate, real and personal, may be assigned and delivered to W. M., of, <£c., as assignee, 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, further, that the said G. L. may be 470 APPENDIX OF FORMS. [CH. XIV. discharged from his debts in the manner authorized by tlie statutes of this State concerning " Vohintary assignments made pursuant to the application ijf an insolvent and his creditors." Dated, &e. Gr. L. A. B $ [Insert opposite each sig- C. D $ nature the amount due to E. F. & Co % the creditor.] [jy the creditor has, in his own name or in trust for him, any mortgage, judgment, or other security, or assignment hy way of security, for securing the payment of his demand, then add to his signature the following : And the mortgage [or, judgment, or other security, as the case may te, describing if], held by me as security for the said debt, which mortgage is dat«^ on, &c., and was executed by to , is hereby relinquished to the assignee to be appointed in these proceedings, for the benefit of all the creditors of the said insolvent.} No. 286. AFFIDAVIT OF RESIDENCE OF INSOLTBNT, TO BE ANNEXED TO PETITION. See ante, Vol. I., p. 508. City and County of New York, ss. : I, N. B. O., of said city and county, Jo swear that G. L., in the annexed petition named, is an inhabitanj^otually residing within the city and county and State of New York. Sworn to before me, this N. B. 0. day of , 18 — . R. J. T., Notary Public [or other officer authorized to taie affidavits]. No. 387. AFFIDAVIT OF OEEDITOB TO BE ANNEXED TO PETITION. See ante. Vol. I., p. 604. State of New York, ) City and County of New York, \ ^^' A. B., of said city and county, one of the petitioning creditors of G-. L., an insolvent debtor, being duly sworn, says : That the sum of dollars, law- ful money of the United States, being the sum affixed to the name of this deponent subscribed to the petition annexed hereto, is justly due to him [or, will become due to him on the day of , 18 — ], from the said insol- vent, for [or, on a promissory note given for] goods, wares, and merchandise sold and delivered by him to the said insolvent [or as the fact may le, setting CH. XIV.] TWO-THIRD ACT. 471 out the nature of the demand, and whether arising on any written security or otherwise, and the general ground and consideration of the indebtedness], and that nrither this deponent, nor any person to his use, has received from said insolvent, or from any other person, payment of any demand, or any part thereof, in money, or in any other vfay whatever, or any gift or reward what- soever, upon any express or implied trust or confidence, that he should become a petitioner for the said insolvent. A. B. Sworn to, &c. [as in No. 286]. No. 288, LIKE AFFIDAVIT OF CEKDITOK WHO IS A MEMBEB OF A FIKM. See ante, VoL I., p. 504 State of New York, ) ^^ City and County of New York, ) D. E., of said city and county, one of the members of the firm or copart- nership of E. F. & Co., and who as one of the copartners, and in their behalf, has subscribed to the petition the name or firm of their said copartnership, as petitioning creditors of G. L., 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 the said copartnership sub- scribed to the petition annexed hereto, is justly due \or, will become due on the day of , 18 — ] to the said copartnership from the said insolvent, for \or, on a promissory note given for] goods, wares, and merchandise sold and delivered by them to the said insolvent [or, as the fact may he, setting out the nature of the demand, and whether arising on any written security or otherwise, and the general ground and consideration of the indebtedness], and that neither this deponent, nor any member of said firm, nor any person to his or their use, has received from the said insolvent, or any other person, payment of any demand, or any part thereof, in money or in any other way whatever, or any gift or reward whatsoever, upon any express or implied trust or confidence that he or they should become a petitioner or petitioners for the said insolvent. D. E. Sworn, Sc. [as in No. 286]. No. 289. SOHEDUI-E OF CEEDIT0R8. See ante, Vol. I., p. 506. A full and true account of all the creditors of G. L., an insolvent debtor, with the place of residence of each, the sum owing to each of them by the 472 APPENDI^^ OF FORMS. [CH. XIV. said insolvent, the nature of each debt or demand, with the true cause and consideration thereof, and the place where the same accrued. Residence. Amount. Nature of debt, with the true or.use and consideration there- of, and whether arising oq written security, on account, or otherwise. Accrued at Statement of any existing judg- ment, mortffagy, or collateral or other security for the payment of any such debt. OreditorR. Dollars. Cents. « No. 290. iNVBNTOKT OF PEOPBRTT [teing part of Schedule, and to ie annexed to No. 289]. ■ See ante, Vol. I., p. 506. A full and true inventory of all the estate, both real and personal, in law and equity, of G. L., an insolvent debtor, of the incumbrances existing thereon, and of all the books, vouchers, and securities relating thereto. [Insert them.] No. 291. insolvent's affidavit. See ante, "Vol. I., p. 505. City and County of New York, ss. : I, G. L., do swear [or, affirm, as the ease may he] that the account of my creditors, and the inventory of my CH. XIV.J TWO-THIRD ACT. 473 estate, whicli are annexed to my petition, and herewith delivered, are in all respects just and true; and that I have not, at any time, or in any manner whatsoever, disposed of, or made over, any part of my estate, for the future benefit of myself or my family, or in order to defraud any of my creditors ; and that I have in no 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. G. L. Sworn to before me, this day of , 18 — , D. P. I., Justice of Supreme Court [or other officer before whom the proceedings are commenced]. No. 292. OEDEE TO SHOW OAUSK. See ante. Vol. I., p. 509. Upon reading the petition of G. L., and creditors of G. L., an insolvent debtor, and the schedule and aflSdavita annexed thereto, it is ordered that all the creditors of the said G. L. show cause, if any they have, before me, (a) on the day of next, at o'cjock in the noon, at the cham- bers of the Supreme Court, in the City Hall, New York [or other place], why an assignment of the said insolvent's estate should not be made, and he be discharged from his debts, pursuant to the provisions of the statute for the discharge of an insolvent from, his debts. Notice of which is to be published for six weeks [or, ten' weeks, as the case may ie], in the State paper, and in the newspaper printed in the city [or, village] of , entitled the [name the newspaper. Add, also, if necessa/ry : and also in the newspaper printed in the city of New York, entitled the ]. And I do hereby further direct that notice of this order be served, either in person or by letter, on each of the creditors of the said insolvent, G. L., residing in the United States, and whose place of residence is known to the said G. L. And the service of the notice of this order shall be made on each of the said creditors in person, or by letter, addressed to him by mail, at his known and usual place of residence. If such service shall be personal, then it shall be at least twenty days, and if by mail, then forty days, before the said day of next. Dated, Sc. D. P. I., Justice of Supreme Court [or other officer]. (a) If the officer making the order be a judge of a county court, and not of the degree of counselor at law, the order should require cause to be shown, at the term of the court to be held next after the expiration of the time of publication of the notice thereof; and the order should specify the time and place at which the term will be held. Ante, vol. L, p. 509. 474 APPENDIX OF FORMS. [CH. XIV. No. 293. NOTICE TO OBEDITORS. See ante, Yol. I., p. 510. To A. K. [name of creditor.} You ^ill please take notice, that on the day of , 18 — , an order was granted by the Honorable D. P. I., justice of the Supreme Court [or, county judge, or as the case may ie], on the petition of G. L., of, Sc, an Insolvent debtor, and so many of his creditors residing within the United States whose debts amounted to at least two-thirds of all the debts owing by the said G. L., to creditors residing within the United States, requiring all the creditors of the said G. L. to show cause before him at the chambers of the Supi-eme Court, in the City -Hall, New York [or other place'], on the day of , 18 — , at — o'clock in the noon of that day, why an as- signment of the estate of the said G. L. should not be made, and he be dis- charged from his debts [and from the debts of R. C. & Co., of which he was a member], pursuant to the provisions of the third article, of title first, of chapter fifth, of part second of the Revised Statutes. Dated, Sc. G. L., Insolvent, No. 294. NOTICE TO BE PUBLISHED. Sea ante, Vol. I., p. 510. Notice of application for the discharge of an insolvent from bis debts pursuant to the provisions of article third, of title first, of chapter fifth, of the second part of the Revised Statutes. G. L., applicant. Notice first published on the day of , 18 — , Creditors are required toappear before D. P. I., justice of the Supreme Court [or other officer] at the chambers, of the Supreme Court, in the City Hall, New York, on the day of , 18—, at — o'clock A. M. Dated, (fee. No. 295. AFFIDAVIT OF SEKVICK OF NOTICE. See ante, Vol. I., p. 510. State of New York, ) City and County of New York, ) ^^• L. M., of said city and county, being duly sworn, says, that on the day of , 18 — , he served upon A. B., 0. D., and E. F., and each and every of them, a copy of the annexed notice to creditors, by delivering to the said CH. XIV.] TWO-THIRD ACT. 475 persons, and each and every of them, personally, a true copy of the said notice. [If the service was hy depositing in the post-office^ say :] That on the day of , 18 — , he served upon A. B. a copy of the annexed notice to creditors, by depositing a true copy thereof in the United States post-office in the city of New York \or other place'], properly folded and directed to the said A. B., at his place of residence, to wit, at , and paying the postage on the same. Sworn, &c. [as in No. 286]. L. M. No. 296. AFFIDAVIT OF PTTBLICATION OF NOTICE TO 0EEDIT0K8. See ante, Vol. I., p. 511. State of New York, v City and County of New York, E. F., of. said city, being duly sworn, says: That he is, and during the whole time hereinafter mentioned has been, the printer [or, foreman, or, principal clerk of the printer] of the , a newspaper printed in said city and county, and that the annexed printed notice to creditors was published in tlie said newspaper six [or, ten] weeks successively, at least once in each week; which publication commenced on the — — day of , 18 — , and ter- minated on the day of , 18 — . Sworn, &e. [as in No. 286]. E. Y. No. 297. DEMAND OF A JURY AND SPECIFICATIONS OF OBJECTIONS. See ante, Vol I., pp. 513, 514. In the'matter of the application of G. L. to be discharged from his debts. To D. P. I., Esq., Justice of the Supreme Court [or other officer or court} : I, A. B., one of the creditors of the said G. L., do hereby object to the discharge of said G. L. as an insolvent debtor, and demand that the case of the said G. L., returnable before you this day, be heard and determined by a jury. And I do hereby specify the following grounds of my objections to such discharge : 1. That the petition herein is not signed by so many of the creditors of the said G. L, residing within the United States, as have debts in good faith owing to them by such debtor, then due or thereafter to become due, and 476 APPENDIX OF FOEMS. [CH. XIV. amounting to at least two-thirds of all the debts owing by him to creditors residing within the United States. 2. That the said G. L., in order to obtain his discharge, has procured 0. D., one of the persons signing his petition herein, to become a petitioning creditor for the sum of dollars and upward, not due to him from the said G. L. 3. That, &a. [set out any other otjections in detail which the creditor ma/y hm>e\. Dated, &e. A. B. No. 298. OEDEis THBEEUPON. See ante, Vol. I., p. 513. [Title as in last/arm.] A. B., one of the creditors of G. L., an insolvent debtor, having demanded that the case of the said insolvent be heard and determined by a jury, and having filed with me [or, the clerk of this court] a specification in writing pf the grounds of his objections to the discharge of said G. L., as an insolvent debtor : It is ordered, that the case of the said insolvent be heard and deter- mined by a jury. [If the- application is to a court, add: and that the said jury be drawn, in the same manner as for the trial of civU causes, from the jurors summoned and attending this court.] No. 299 SUMMONS rOE JURY. See ante, Vol. I., p. 514. The People of the St.ite of New York, to the SherifiT of the County of [or, to any one of the Constables of the County of , or, Marshals of the City of , in the County of ], greeting. Whereas, on the day of , 18 — , on the application of G. L., an insolvent debtor, I issued an order that the creditors of the said G. L. show cause before me, on the day of , 18 — , why an assignment of the estate of the said G. L. should not be made, and he be discharged from his debts, pursuant to the provisions of chapter five, of part second of the Revised Statutes. And whereas, on the return day of such order, A. B., one of the credi- tors of the said insolvent, objected to such discharge, setting forth in writing the grounds of his objections thereto, and demanded that the case of the said insolvent slionld be heard and determined by a jury. I have therefore nominated eighteen reputable freeholders of the county CH. XIV.] TWO-THIED ACT. 477 of ■ , to form a jury for the purpose of hearing and determining the case of the said insolvent, wiiose names are as follows : [insert names of jurors]. You are, therefore, hereby commanded to summon the persons so nomi- nated by me, to appear before me at [insert place for hearing], on the day of , 18 — , at o'clock -. m., for the purpose of hearing and deter- mining the said case. Witness my hand, this day of • , 18 — , D. P. I., Justice of Supreme Court, [or other officer]. No. 300. ASSIGNMENT. See ante, Vol. I., p. B18. Know all men, by these presents : That I, G. L., an insolvent debtor, did. in conjunction with so many of my creditors residing within the United States whose debts in good faith amount to two-thirds of all the debts owing by me to creditors residing within the United States, present a peti- tion to D. P. I., justice of the Supreme Court [or other officer], praying for relief, pursuant to the provisions of the statute authorizing an insolvent debtor to be discharged from his debts; whereupon the said justice ordered notice to be given to all my creditors to show cause, if any they had, before him, at a certain day and place, why the prayer of the said petition should not be granted ; which notice was duly published and served as required by law ; and no good cause appearing to the contrary ; and the said justice, being satisfied that I have in all things conformed to those matters required by the said statute, has directed an assignment of all my estate to be made by me for the benefit of all my creditors. Now, therefore, know ye : That, in conformity to the said direction, I have granted, released, assigned, and set over, and by these presents do grant, re- lease, assign, and set over, unto W. M., of, Sa., assignee nominated to receive the same, all my estate, real and personal, both in law and equity, in posses- sion, reversion, or remainder, and all books, vouchers, and securities relating thereto, to hold the same unto the said assignee to and for the use of all my creditors. [1/ necessary, except from the assignment such articles of wearing apparel and bedding as in the opinion of the officer shall he reasonable and necessary for the insolvent and his family to retain. Also the arms and ac- couterments required by law.] In witness whereof, I have hereunto set my hand and seal, this day of , in the year one thousand eight hundred and . Sealed and delivered in _, -. ^ . G. L. [l. 8.] the presence or [Add aclcnowledgment or proof of execution, as in No. 44.] 4.78 APPENDIX OF FORMS. [CH. XIV. No. 301. assignee's certifioate. See ante, Vol. I., p. 619. I, W. M., of, &e., do hereby certify, that G. L., an insolvent debtor, has this day granted, conveyed, assigned, and delivered to me, for the use and benefit of all his creditors, all his estate, real and personal, both in law and eqnity, in possession, reversion, or remainder, and all books, vouchers, and se- curities relating to the same, except such articles of wearing apparel and, bed- ding as are reasonable and necessary for the said insolvent and his family to retain, and also his arms and accouterments. In witness whereof, I have hereunto set my hand and seal, this day of , in the year one thousand eight hundred and . W. M. Executed in the presence of [two witnesses]. [Add proof of execution of certificate J>y one of the witnesses, as in No. 44.]. No. 302. clerk's oertifioatb of recording of assignment. See ante, Vol. I., p. 520. I, H. W. G., clerk of the county of , do hereby certify that an assign- ment of all the estate, real and personal, both in law and eqnity, in posses- sion, reversion, and remainder, and all books, vouchers, and securities relating thereto of G. L., an insolvent debtor, made by the said G. L. to.W. M., to and for the use of the creditors of the said G. X., and dated the day of , 18 — , was duly recorded in the clerk's ofBce of said county, on the — - day of , 18—. In witness whereof I have hereunto subscribed my name and affixed my official seal, this day of , 18 — . [Seal.] H. W. G., Clerk. No. 303. assignee's oath of office. See ante, Vol. I., p. 519. I, W. M., having been appointed assignee of G. L., an insolvent debtor, do swear [or, affirm] that I will well and truly execute the trust by that ap- pointment reposed in me, according to the best of ray skill and under- standing. W. M. Sworn to, &c. [as in No. 286]. CH. XIV.] TWO-THIED ACT. 479 No. 304. DISCHARGE. See ante, Vol. I., p. 521. To all to whom these presents shall come or may conceri»: I, D. P. I., justice of the Supreme Court of the State of New York [or other officer], send greeting: Whereas, G. L., an insolvent debtor, residing within the city and county of New York [or- other place], did, in conjunction with so many of his creditors, residing within the United States, as have debts in good faith owitig to them by the said insolvent, amounting to at least two-thirds of all the debts owing by him to creditors residing within the United States, present a petition to me, praying that the estate of the said insolvent might be assigned for the benefit of his creditors, and he be dis- charged from his debts, pursuant to the provisions of the statute authorizing an insolvent debtor to be discharged from his debts: whereupon I ordered notice to be given, as required by law, to all the creditors of the said insol- vent, to- show cause, if any they had, before me, at a certain time and place, why an assignment of the said insolvent's estate should not be made, and he be discharged from his debts, proof of the service whereof on such of the creditors of said insolvent, whose places of residence are known to the insol- vent, as required by law, and of the publication whereof, hath been duly made. And, whereas, it satisfactorily appearing to me that the proceedings on the part of the creditors are just and fair, and that the said insolvent has conformed in all things to those matters required of him by the said statute, I directed an assignment to he made, by the said insolvent, of all his estate, real and personal, both in law and equity, in possession, reversion, or remainder, to W. M., assignee nominated by the creditors to receive the same ; and the said insolvent having, on the day of , 18 — , made such assignment, and produced to me a certificate thereof, executed by the said assignee, and duly proved, and also a certificate of the clerk of said county of , that such assignment is duly recorded in his ofllce : Now, therefore, know ye, that, by virtue of the power and authority in me vested, I do hereby discharge the said Insolvent from all his debts, and from^ im- prisonment, pursuant to the provisions of the said statute. In witness whereof, I have hereunto set my hand, the day of , in the year of our Lord one thousand eight hundred and . D. P. I., Justice of the Supreme Court [or other officer]. No. 305. OEETIOEAEI TO BEMOVB PEOOBEDINGS INTO SUPEEME OOUET. See ante. Vol. I., p. 533. [Same, with necessary alterations, as in No. 94. See also No. 92 for form of affidavit on which to apply for certiorari.] 480 APPENDIX OF FORMS. [CH. XIV. No, 306. PETITION FOR DI80HAE&E FKOM IMPEISONMKNT ON EXEOtTTION. See ante, "Vol. I., p. 547. To the Supreme Court of the State of New York [or other court] : The petition of L. L., of, &c., shows to the court, that he is a prisoner, confined in the jail of the county of , on an execution against the person, issued out of this court, in a civil action wherein W. 0. is plaintiff, and your petitioner is defendant; and in which action judgment was rendered against your petitioner for the sura of dollars, on the day of , 18 — . That the said sum of dollars is now due and unpaid on said execution [if the im2}ruonment is for a sum exceeding Jive hundred dollars, add : and that your petitioner has been imprisoned on said execution for more than three months]. Yonr petitioner further shows, that annexed hereto, marked as schedules " J. " and " 5," is a just and true account of all his estate, real and personal, in law and equity, and of all charges affecting the same, both as such estate and charges existed at the time of his imprisonment, and as they exist at the time of preparing this petition, together with a just and true account of all deeds, securities, books, and writings whatsoever relating to the said estate, and the charges thereon, with the names and places of abode of the witnesses to such, deeds, securities, and writings. Tour petitioner, therefore, prays, that an order may be made directing the sheriff of said county to bring your petitioner into court on a day assigned for that purpose ; and that your petitioner may be discharged from his said imprisonment on his compliance with the provisions of the statute ; and that your petitioner may have such further or other relief as he may be entitled to under the provisions of the statute authorizing debtors, imprisoned in execu- tion in civil causes, to be discharged from imprisonment. Dated, Sc. [Signature o/prisoner.] [Annex schedules as follows :] Schedule "A," referred to in the petition annexed. A just and true account of all the estate, real and personal, in law and equity, an^ of all charges affecting the same, of L. L., an imprisoned debtor, as the same existed at the time of his imprisonment, as stated in said peti- tion, together with a just and true account of all deeds, securities, books, and writings whatsoever relating to the said estate and the charges thereon, with the names and places of abode of the witnesses to such deeds, securities, and writings, according to the best of his knowledge, information, and belief. Real estate, as follows : [set it out]. Personal estate, as follows : [set it out]. Charges affecting the said estate, as follows: [state the charges in full]. C?H. XIV.] DISCHARGE FROM IMPRISONMENT. 481 Account of all deeds, securities, books, and- writings relating to the said estate, and the charges thereon, and the names and places of abode of the witnesses to the same, as follows: [set out the account in full]. Schedule "^," re/erred to in the petition annexed. [Sameform as schedule " A" except in the place of the words "at the time of his imprisonment, as stated in said petition," insert the words, "at the time of preparing the said petition."] No. 307. NOTICE TO CKEDTT0E8. See ante, Vol. I., p. 549. SuPEEME CotiRT \or Other court]. In the matter of L. L., an imprisoned debtor. To "W. 0. Sir,— Please to take notice that I shall present to the Supreme Court {or other court], at the next special term thereof, to be held at the Court House at , in the county of , on the day of , 18 — , at ten o'clock in the forenoon, or as soon thereafter as counsel can be heard, the petition, together with the account annexed thereto, with copies whereof yon are herewith served ; and that I shall then and there apply to the said courtthat the prayer of the said petition be granted. Dated, &e. Yours, &c., L. L. No. 308. AFFIDAVIT TO BE IlfDOKSED ON PETITION. See ante, VoL I., p. 549. County of , ss. 1, the within-named petitioner, do swear [or, affirm, as the case may Je], that the witliin petition and account of my estate, and of the charges thereon, .ire in all respects just and true ; and that I have not, at any time or in any manner, disposed of or made over any part of my property with a view to the future benefit of myself or my family, or with an intent to injure or de- fraud any of my creditors. '-'• ^■ Sworn to before me this day of , 18 — , D. P. I., Justice of Supreme Court * [or other officer holding the eour([. Vol. XL— 31 482 APPENDIX OF FORMS. [O" XIY. No. 309. AFFIDAVIT OF BEETIOB OF PBTITION, AOOOTTNT, AND NOTICE. See ante, VoL I., p. 549. [Sam,e as in No. 295, icith necessary alterations.] No. 310. OBDEB TO BEINO PEI80NER BEFOEB THB OOTTET. See ante, Vol. I., p. 549. [Title as in No. 807.]- At a special terra, Sc. [as in No. 6]. The said L. L., having presented his petition to this court, praying for an order directing the sheriff of the conntj of to bring him, the said L. L., into this court on a day assigned for that purpose, and that the said L. L. be discharged from his imprisonment upon an execution issued out of this court in an action wherein W. 0. is plaintiff and the said L. L. is defendant; (*) and due proof being made to the court of the service npon the said W. 0. of a copy of said petition, and of the account annexed thereto, with the notice of the presentation of the same. It is ordered, that the sheriff of said county of bring the said L. L. before this court, at the present special term tliere- of, now sitting at the Court House in the village of , in said county, on the day of , 18 — , at ten o'clock in the forenoon of that day. No. 311. OEDEE DIRECTING ASSIGNMENT. See ante, Vol. I., p. 550. [Same as in last form to the asterisk (*), and then as follows] ; and the said order having been duly issued, and the said L. L. brought before the court in pursuance thereof; and the court having heard and determined the proofs and allegations of the parties, and being satisfied that the petition and ac- count of the said L. L. are correct, and that his proceedings are just and fair; It is therefore ordered, that an assignment be made by the said imprisoned debtor to A. B., of. So., who is hereby appointed assignee to receive the same, of all the said debtor's property, except such articles as are exempt by law from levy and sale on execution. CH. XIV.J DISCHAEQE FEOM IMPRISONMENT. 483 No. 312. ASSIGNMENT TO BE INDORSED ON PETITION. See ante, Vol. I.,, p. 550. Whereas, I, L. L., did present the within petition to the Supreme Court [or other court], and an order having been duly made thereupon, requiring the sheriff of the county of to bring the said L. L. before the said court at the special term thereof, held at the Court House in the village of , in said county, on the day of , 18—, and the said sheriff having complied with the said order ; and the court, thereupon, after hearing the proofs and allegations of the parties, having ordei-ed the said L. L. to make an assignment of all his property, except such articles as are by law exempt from levy and sale on execution, to A. B., of, (fee, who was appointed as- signee to receive the same. Now, therefore, in consideration thereof, and in conformity to the order of said court, I have assigned and transferred, and hereby do assign and transfer, unto the said A. B., as such assignee, all the property owned by me, except such articles as are exempt by law from levy and sale on execution. No. 313. OEKTIFICATE OF ASSIGNEE. See ante, Vol. I., p. 651. I, lA. B., duly appointed assignee of the property of L. L., an imprisoned debtor, do hereby certify that the said L. L. has this day actually delivered to nie all the property directed to be assigned to me by an order of the Supreme Court [or other court], dated the day of , 18 — . Dated, <&c. A. B., Assignee. Witness. [Add achnowledgment or proof of signature, as in No. 44.] No. 314. OEDEE DISCHAEGING PEISONEK. See ante, Vol. I., p. 551. [Title as in No. 307.] At a special term, &c. [as in No. 6].. The said L. L. having presented his petition to this court, praying for an order directing the sheriff of the county of to bring him, the said L. L., into this court on a day assigned for that purpose, and that the said L. L. be 484 APPENDIX OF FOHMS. [CH. XV. (lisoharged from his imprisonment upon an execution issued out of the said eourt in an action wherein W. C. was plaintiff and the said L. L. was defend- ant j and the said order having been duly issued, and the said L. L. brought liefore the court in pursuance thereof; and the court having heard and de- termined the proofs and allegations of the parties; and being satisfied that the petition and account of the said L. L. are correct, and that his proceed- ings have been just and fair ; and having thereupon made a further order directing an assignment to be made by the said L. L., of all his property, ex- cept such articles as are exempt from execution, to A. B., of, cfcc, who was appointed assignee to receive the same ; and the said assignment having been duly made; and satisfactory evidence having been furnished to the court that the said property has been actually delivered to the said assignee [or, and security, approved by the court, having been given by the said L. L. for the future delivery of said property to the said assignee] : It is, therefore, hereby ordered, that the said L. L. be, and he is hereby, discharged from his imprisonment under and in pursuance of the execution aforesaid. CHAPTER XV. FORMS IS ACTIONS AND PROCEEDINGS AGAINST LEGATEES, HEIRS, JOINT DEBTORS, Etc. I. Forms xn Pkocekdings against Heibs, Joint Dbbtoes, etc. No. 315. SUMMONS AGAINST HEIBS, DEVI8EB8, BTO. See ante, Vol. I., pp. 589, 599 \ Title of the cause in wMeh judgment was rendered.] To E. F., G. H., and J. K., heirs [or as the case may ie] of E. F., defendant above named : You are hereby summoned and required to show cause, within twenty days after the service of this summons upon you, why the judgment entered in the above-entitled action, on the day of , 18 — , in the clerk's office of the county of , in favor of A. B., plaintiff above named, against I". 1.'., defendant above named, for dollars, damages and costs, should iH)t be enforced against the estate of the said R. F., in your hands, to wit: against that piece or parcel of land situated, &c. [describe the estate]. Dated, Sc. E. B., Att'y for Plaintiff, [adding his address]. CH. XV.j PROCEEDINGS AGAINST HEIRS, ETC. 486 No. 316. SUMMONS AGAINST JOINT DEBT0K8. See ante, Vol. I., p. 607. [Title of the cause in which judgment was rendered.l To E. F., defendant above named : You are hereby summoned and required to show cause, within twenty days after the service of this summons upon you, why you should not be bound by the judgment entered in the above-entitled action, on the day of , 18 — , in the clerk's oflBce of the county of , in favor of A. B., plaintiff above named, against 0. D. and E. F., for dollars, damages and costs, in the same manner as if you had been originally summoned therein. E. B., Att'y for Plaintiff, Dated, &c. [adding his address}. No. 317. AFFIDAVIT TO ACCOMPANY SUMMONS. See ante, Vol. I., p. 607. [Title of the cause.] , County of , ss. : E. B., attorney for the plaintiff above mentioned, being duly sworn, deposes and says : He is the person subscribing the above summons, as attorney for the plaintiff. That the judgment mentioned in said summons has not been satisfied, to deponent's knowledge or information and belief; and that the amount now due upon said judgment is the sum of dollars, with interest thereon from the day of , 18 — . Sworn, &€. E. B. n. FoEMS IN Actions against Next of Kin, Heiks, etc. No. 318. COMPLAINT — CEBDITOE AGAINST NEXT OP KIN. See ante, Vol. I., p. 584. [Title of the cause as in No. 165,] The complaint of the above-named plaintiff, by A. N. W., his attorney, sho.ws to the court : That, &c. [set forth a cause of action against the ancestor of the defend- ant., showing, also, that the debt is due and unpaid; and then proceed:] The plaintiff further shows, upon information and belief, (*) that on the day of , 18 — , at , in the county of , the said 0. D. [the decedent] 486 APPENDIX OF FORMS. [CH. XV. died intestate, and that afterward, and oq or about the day of , 18 — , letters of administration upon his estate were duly issued to R. D., by the surrogate of the county of , in this State, whereby the said R. D. was duly appointed administratrix of all and singular the goods, chattels, and credits of the said deceased [or, that on the day of , 18 — , at the town of , in the county of , the said C. D. departed this life, leaving a last will and testament, by which R. D. was appointed sole executrix of the estate of the said deceased. That the said will was duly proved and admitted to probate by the surrogate of the county of , and letters testamentary thereupon were thereafter duly issued by him to the said R. D.] The plaintiff further shows upon information and belief, that the defend- ant is one of the next of kin of the said intestate, and that the sMd administra- trix, prior to the commencement of this action, paid over to said defendant assets of said estate, amounting to the sum of dollars. Wherefore, the plaintiff demands judgment against the defendant for the amount of his aforesaid claim, with interest thereon from the day of , 18 — , or so much of said amount as the moneys received by the de- fendant, as aforesaid, will pay of the same. A. K W., Att'y for Plaintiff. [ Verification as in No. 169.] No. 319. COMPLAINT — CEEDITOK AGAINST LEdATEE. See ante, Tol. I., p. 587. [Title, Sc, as in last form to the asterisJ: (*) and then as follows:] that on the day of , 18 — , at the town of , in the county of , the said C. D. departed this life, leaving a last will and testament, by which K. D. was appointed sole executrix of the estate of the said deceased. That the said will was duly proved and admitted to probate by the surrogate of the county of •, and letters testamentary thereupon were thereafter duly issued by him to the said R. D. The plaintiff further shows, upon information and belief, that, in and by his said will, the said 0. D. bequeathed a legacy of dollars to the de- fendant; and that, before the commencement of this action, the said execu- trix paid to the defendant, as such legatee, the sum of dollars, out of said estate, being the amount of such legacy. The plaintiff further shows upon information and belief, that no assets have been delivered by the said executrix to the next of kin of the said de- ceased, or any of them. Wherefore, the plaintiff demands judgment against the defendant for the amount of his said claim, with interest thereon from the day of , 18 — , together with the costs of this action. A. N. "W., Attorney for Plaintiff. [Add 'cerification as in No. 169.] CH. XV.] PROCEEDINGS AGAINST HEIRS, ETC. 487 No. 320. COMPLAINT — OEBDITOE AGAINST HBIB. See ante, VoL I., pp. 589, 595. [Title of the cause as in No. 165,] The complaint of the above-named plaintiff, by A. N. W., his attorney shows to the court: That, &c. [set forth a catue of action against theancestor of the defendant, showing, also, that the delt is due and unpaid, and then proceed :'] And the plaintiff further shows, upon information and belief, that on the day of ; 18 — , at the town of , in the county of , 0. D. above named, departed this life, intestate ; and that more than three years before the commencement of this action, to wit: on the day of , 18 — , letters of administration were duly issued upon the estate of the said intestate, by the surrogate of the county of , in this State, whereby R. D. was duly appointed administratrix of the goods, chattels, and credits of the said deceased. The plaintiff further shows, upon information and belief, that the de- fendant is the only heir of the said deceased ; and that the following described premises descended from the said deceased to the said defendant, as such heir, viz. : \i7isert description of real estate.l The plaintiff further shows, upon information and belief, that the personal assets of the said deceased were insufficient to pay the plaintiff's claim, as aforesaid. "Wherefore, the plaintiff demands judgment, that the premises above de- scribed be sold, and that the plaintiff's aforesaid claim, with the interest upon the same, be paid out of the proceeds of such sale, together with the plaintiff's costs of this action. A. K W., Attorney for Plaintiff. [Veriflcation as in No. 169.] 488 APPENDIX OF FORMS. [CH. XVI. CHAPTER XVI. FORMS UNDER LIEN LAWS IN FAVOR OF MECHANICS AND OTHERS. I. FOEMS tTNDEE LlEN LaW FOE THE CiTT OF NeW YoeK, No. 321. NOTICE OF HEN BY CONTEAOTOE. See ante, Tol. I,, pp. 625 to 628. To W. C. O., Esq., Olerk of the Oity and County of New York: Sir : Take notice that I, A. B., residing at No. Street, in the city of New York, have a claim against E. F., now diie [or, which will be due on the day of , 18 — ], amounting to the sum of dollars, for three months' labor performed for the said E. F., as a carpenter and joiner [or, for large quantities of lumber furnished to the said E. F.], in pursuance of, or in conformity with, an agreement with him. That the said labor was performed [or, the said materials were furnished] in erecting the building and appurtenances [or, in altering, improving, and repairing the building and appurtenances] situated on Street, in said city, and known as No. on said street [or, situated on Street, in said city, on the northerly side thereof, and on a lot twenty-iive feet front, commencing two hundred feet easterly from the Fifth Avenue, a diagram of which is annexed hereto, or, accompanying this notice]. That three months have not elapsed since the performance and completion of such labor [or, since the said materials were furnished]. That the said E. F. is the owner of the said building and appurtenances, and lot on which the same stand, and which lot and premises are situiited on Street aforesaid, and are known and described as lol- lowB : [insert brief description of the premises, hy street, number, or a diagram or boundary, or by a reference to maps open to the public, so as to furnish information to persons examining titles']. Also take notice (*) that I have and claim a lien on the building and appurtenances above mentioned, and upon the lot of land upon which the said building and appurtenances stand, pursuant to the provisions of an act of the Legislature of the State of New York, entitled, "An act to secure the payment of mechanics, laborers, and persons furnishing materials toward the erection, altering, or repairing of buildings in the city of New York,'' passed May 5th, 1863. - Dated, &e. A. B., Claimant. A. N. W., Att'y for Claimant. CH. XVI.] LIEN LAW : NEW YORK CITY. 489 City and County of New York, ss. : A. B., being duly sworn, says : He is the claimant above named; that the foregoing notice of claim, and state- ment therein, is true to his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. Sworn to, die. A. B. No. 322. NOTICE OF LIESr BY OTHER PERSON THAN THE OONTBAOTOE. See ante, Vol. I., pp. 625 to 628. To W. C. C, Esq., Clerk of the City and County of New York : SiH : Take notice that I, C. D., residing at No. Street, in the city of New York, have a claim against A. B., now due [or, which will be due on the day of , 18 — ], amounting to the sum of dollars, for three months' labor performed for the said A. B., as a carpenter and joiner [or, for large quantities of lumber furnislied to the said A. B.], in pursuance of an employment, or an agreement, between me and the said A. B. That the said A. B. is the contractor of E. F., hereinafter named ; and the said labor was performed [or, the said materi.ils were furnished] in erecting the building and appurtenances [or, in altering, improving, and repairing the building and appurtenances] situated in the ward, in said city, on the lot hereinafter more particularly described, and known as No. Street. That the said E. F. is the owner of the said building and appurtenances, and lot on which the same stand ; and that the said labor was performed [or, the said materials were furnished] in erecting the building and appurtenances [or, in altering, improiving, and repairing the building and appurtenances] aforesaid, and in pursuance of, or in conformity with, the terms of the con- tract between, the said A. B. and the said E. F. [or, in pursuance of an employment by the said E. F. of the said A. B. ; or, in accordance with the directions of the said E. F., owner, aforesaid; or, in accordance with the directions of S. F., the agent of the said E. F., owner, aforesaid]. That three months have not -elapsed since the performance and com- pletion of such labor [or, since the said materials were furnished]. That the said lot and premises are known and described as follows : [in- sert brief description of the premises, as in last form]. Also take notice, that, So. [conclude substantially as in last form from the asterisk (*), including the verification of the notice}. 490 APPENDIX OF FORMS. [CH. XVI. No. 323. OONTEAOTOE's notice op FOKE0L08TTEK OF LIEN. See ante, Vol I, pp. 631 to 635. In Supeemk Oottht [or other court] : A. B. against e! F. and K. S. To E. F. above named, the owner of the building and premises hereinaf- ter mentioned, and R. S., having a lien or incumbrance thereon: Take notice, that I, A. B. above named, residing at, cfcc, have a claim against you, the said E. F., amounting to the sum of dollars, with inter- est thereon from the day of , 18 — , for three months' labor per- formed for you as a carpenter and joiner [or, for large quantities of materials furnished to you], in pursuance of, or in conformity with, an agreement with you ; and which labor was performed [or, materials were furnished] in erect- ing the building [or, in altering, improving, and repairing the building] No. — and appurtenances, owned by you, the lot upon which the same stand being bounded and described as follows: [insert description as in notice of lien]. Also take notice (*), that within three mouths after the performance and completion of such labor [or, the furnishing of such materials], to wit : oh the day of , 18 — , I duly filed with the clerk of the city and county of New York the notice required by law to effect a lien on the building and premises above mentioned, for the amount of the claim, as aforesaid. You will also take notice, that you are required to appear before this court at, Sc, on the day of , 18 — , at 10 o'clock a. m., then and there to answer this notice ; and, in default thereof, the said claimant will apply to the court for judgment against you, the said E. F., for the amount claimed, as aforesaid, to wit, for the sum of • dollars, and interest thereon from the — '— day of , 18 — , with the costs of the action ; and that the said judgment be enforced against the said building and premises. Dated, Se. A. B., Claimant. A. N. W., ATt'y for Claimant. CH. XVI.J LIEN LAW : NEW YOBK CITY. 491 No. 324. NOTICE OF THE rOREOLOSUBB OF LIEN BY OTHER PBESON THAN A OOH- TKAOTOE. See ante, Vol. I, pp. 631 to 635. In Sttpeeme Oouet [or other court] : 0. D. against E. F. and R. S. To E. E. above named, owner of the building and premises hereinafter mentioned, and to R. S., having a lien or incumbrance thereon : Take notice, that I, 0. D. above named, residing at. So., have a claim against A. B., of , in said county, who was the contractor with you, the said E. F., for the erection of the building and appurtenances hereinafter mentioned, amounting to the sura of dollars, with interest thereon from the day of , 18 — , for three months' labor performed for the said A B., as a carpenter and joiner [or, for large quantities of materials furnished to the said A. B.], in pursuance of an agreement with him ; and which labor' was performed {or, which materials were furnished] in erecting the building No. — and appurtenances, owned by you, the lot upon which the same stand being bounded and described as follows : [insert description as in the notice of lien]. Also, take notice, So. [as in last form from the asterisJc]. No. 325. affidavit of the seeviob of the notice. See ante, Vol. I., p. 635. [Title.] City and County of New York, ss. : H. S., of said city and county, being duly sworn, deposes and says : That on the day of , 18 — , he personally served a copy of the annexed notice upon E. F., the owner mentioned therein, by delivering the same to, and leaving the same with, the said E. F., at his residence No. , in said city. And deponent further says, that he knew the person so served to be the person mentioned and described in said notice as owner and defendant therein. H- S. Sworn, die. 492 APPENDIX OF FORMS. [CH. iVl. No. 326. COMPLAINT, OB STATEMENT OP CLAIM, OIT CONTEAOTOE AGAINST OWNEE. See ante, Vol. I., p. 639. [Title of the cause, as in No. 323.] The complnint of A. B., the plaintiff, shows to the court: That ou the day of , 18 — , at, &c., the plaintiff, by virtue of a contract with the defendant, E. F., sold and delivered to the said defendant certain building materials, oonsiatingof , of the value of d!>llarj. That, by the terms of said contract of sale, .the said sum of dollars became due to the plain- tiff on the day of , 18 — ; but the defendant, E. F., has not paid the same, and is now justly indebted therefor to the plaintiff. That the said ma- terials were used in erecting a building and appurtenances situated in the ward of the city and county of New York, on, &c. [descrihe the situation of the premises] : and which building and premises were, at the time of making the said contract, and until the filing of the notice of lieu hereinafter men- tioned, the i)roperty of the defendant, E. F. The j)laintiff further shows : That on tlie day of , 18 — , the said plaintiff duly filed with the clerk of the city and county of New York a notice of lien claimed upon said premises for the indebtedness aforesaid ; which notice was duly verified, and specified the amount of the claim, as above stated, and also specified the defendiint, E. F., as tlie person against whom the claim was made, and as tlie owner of said building, and which building was therein described by the street and number, as aforesaid. The plaintiff further shows, up')n information and belief, that the defend- ant R. S. has, or claims to have, some interest in, or lien upon, the said building and premises, or some part tliereof. Wherefore, the plaintiff deman,lsjudgra3nt directing a sale of the interest of the defendant in the building, appurtenances, and premises, aforesaid, to the extent of the right of the defendant at the time the notice of lien was filed, as aforesaid ; and directing also, that the proceeds of such sale be ap- plied to tlie payment of the costs of these proceedings, and the plaintiff's claim, as aforesaid, and that the residue of the proceeds, if any, l)e paid to the clerk of the city and county of New York, to abide the further order of the court. The plaintiff also demands judgment against the defendant, E. F., for the sum of dollars, aforesaid, with interest thereon from the day of , 18 — , besides the costs of this action. A. N. W., Attorney for Plaintiff. OH. XVI.] LIEN LA"W : NEW YORK CITY. 493 No. 327. COMPLAINT, OE STATEMENT OF CLAIM, AGAINST BOTH OWNKE AND OONTEAOTOE. See ante, VoL I., p. 639. In Supheme Oouet [or other court] City and County oe New Yoek. CD. against A. B., E. R, and R. S. The complaint of 0. D., the plaintiff, shows to the court : That on the day of , 18 — , the defendant, A. B., entered into a contract with the defendant, E. F., for the erection of [or, was employed by tlie defendant, E. F., to erect] a building and appurtenances upon the premises hereinafter described; by the terms of which contract [or, employment] it was agreed th^t, (6c. [state the terms of contract or employment]. And the plaintiff further shows : That the said contract has been per- formed by the said defendant, A. B., and the defendant, E. F., is justly in- debted to the said A. B., upon the same, in the sum of dollars. That between the — ^ day of , 18 — , and the day of , 18 — , the said plaintiff, in pursuance of an agreement theretofore entered into by him with the defendant, A. B., and in conformity to the terms of the contract [or, employment] above mentioned, performed labor for the defendant, 0. D., as a cai-peuter, to the value of ■ dollars. That, by the terms of the agree- ment between the plaintiff and the defendant, A. B., the said sum of dollars became due on the day of -, 18 — ; but the said defendant has not paid the same, or any part thereof, and is now justly indebted there- for to the plaintiff. That the said labor was performed in erecting [or, alter- ing, or, repairing, or, improving] a building and appurtenances, situated in the ward of the city and county of New York, on, Sa. [describe the situation of the premises]. Tliat the said building and premises were at the time the said labor was performed, and until the filing the notice of lien here- inafter mentioned, the property of the defendant, E. F. And the said plaintiff further shows : That on the day of , 18 — , he duly filed with the clerk of the city and county of New York a notice of lien claimed upon said premises for the indebtedness aforesaid, which notice was duly verified, and specified the amount of the claim, as above stated, and also specified the defendant, A. B., as the person against whom the claim was made, and the defendant, E. F., as the owner of said building, and which building was therein described by the street and number, as aforesaid. The plaintiff further shows, upon information and belief, that the defend- ant, R. S., has, or claims to have, some interest in, or lien upon, the said building and premises, or some part thereof. 494 APPENDIX OF FOKMS. [CH .XVI. Wherefore the plaintiflf demands judgment, directing a sale of the interest of the defendant, E. F., in the building, appurtenances, and premises above described, to the extent of the right of the said defendant at the time the notice of lien was filed, as aforesaid; and directing, also, that the proceeds of such sale be applied to the payment of the costs of these proceedings, and to the payment of the plaintifFs claim, as aforesaid ; and that the resi- due of such proceeds, if any, be paid to the clerk of the city and county of New York, to abide the further order of the court ; and the said plaintiff also demands judgment against the defendants A. B. and E. F., for the sum of dollars aforesaid, with interest from the day of , 18 — , together with the costs of these proceedings. A. N. W., Attorney for Plaintiff. No. 328. JTTDGMBNT ON FAILITBE OF OWITBB TO APPEAE. See ante, Vol. I., pp. 635, 649. [Title of the cause.'] At a special term, <&c. [as in No. 6]. The above-named A. B., having acquired a lien against the defendant, E. F., as owner, on the day of , 18 — , for the snm of dollars, in pursuance of the statute, upon the building and premises hereinafter de- scribed ; and the said defendant having failed to appear on the — — • day of , 18 — , as required by the notice to enforce such lien, duly served on the defendant, on the day of , 18 — . And the court having made an order on the said day of , 18 — , that a writ of inquiry issue to the sheriff of the city and county of New York [or, that it be referred to M. F., of the city and county of New York], to assess the amount of the plaintiff's claim and damages therein ; and the said sheriff having, on the day of , 18 — , by the oaths of twelve good and lawful men, duly assessed the amount thereof, and having found the same to be the sum of dollars, as appears by the inquisition duly returned [or, and the said referee having, on the day of , 18 — , made his report in writing, wherein it appears that he has assessed the amount thereof, and found the same to be the sura of dol- lars, as will more fully appear by the said report, on file with the clerk of this court]. Now, on motion of A. N. "W., attorney for the said plaintiff, it is ordered, adjudged, and decreed that judgment be recovered by the plaintiff herein for the sum of dollars damages, and dollars costs, amounting, in all, to dollars. And it is further ordered, adjudged,and decreed, that the right of the said defendant, E. F., in the building and premises upon which said lien ex- ists, to wit : All that certain piece or lot of land, &c. [describe the premises], to the extent of the right of the defendant, at the time the notice of lien was CH. XVI.] LIEN LAW : GENEBAL ACT. 495 filed as aforesaid, be sold at public auction, in the manner prescribed by law, and that the said sheriff be, and he hei'eby is, directed to apply the proceeds of such sale to the payment of the costs of these proceedings above men- tioned, and to the payment of the amount of tlie plaintitf's claim, as assessed as aforesaid ; and that the residue of said proceeds, if any, be paid to the clerk of the city and county of New York, to abide the further order of this court. It is further ordered, that the said sheriff make a report of such sale, and tile it with the said clerk, witli all convenient speed; and that, if the proceeds of such sale be insuflBcient to pay the amount of this judgment, with the interest and costs, as aforesaid, the said sheriff specify the amount of such deficiency in his report of sale, and that the plaintiff have execution against the real and personal property of the defendant for such deficiency. No. 329. SATISFACTION OF LIEN. See ante, Vol. I., p. 630. I do hereby certify that a certain lien for labor performed [or, materials furnished], filed in the oflSce of the clerk of the city and county of New York, on the day of , one thousand eight hundred and , at — o'clock in the noon, in favor of A. B., claimant, and against the building and lot situate in the ward of said city, on, Sc. [describe their situation], owned by E. F., upon a claim against one 0. D., contractor, is paid, satisfied, and discharged. A. B. [Add acknowledgment or proof in the usual form. See No. 44.] II. FoEMS inn>EE the Geneeal Law ts favoe of Mechanics, etc. No. 332. conteaotob'b notice op lien. See ante. Vol. I, p. 661. To J. W. M., Town Clerk of the Town of , in the Oonnty of . Take notice, that I, A. B., a resident of the village of , in said county, have a claim against E. F., of said village, amounting to the sum of dol- lars, for three months' labor performed for the said E. F., as a carpenter and -1:96 APPENDIX OF FORMS. [OH. XVI. joiner [or, for large quantities of lumber furnished to the said E. F.], in pur- suance of an agreement with him. That the said labor was performed [or, the said materials were furnished] in erecting the building. No. , and appurtenances, situated on Main Street, in said village; and thirty days have not elapsed since the performance and completion of such labor [or, since the said materials were furnished]. That the said E. F. is the owner (*) of the said bnilding and appurtenances, and the lot and premises upon which the same stand, which said lot and premises are situated in the town of , aforesaid, and are known and described as follows: [describe premises]. Also take notice, that I have and claim a lien upon said building and appurtenances, and the lot upon which the same stand, as security for the amount due me, as aforesaid, in pursuance of the statute in such case made and provided. [Olaimanfs signature.] ' No. 333. NOTICE OF LIEK BT OTHEB PEESON THAN CONTEAOTOE. See ante, Vol. I., p. 661. To J. W. ,M., Town Clerk of the Town of , in the County of . Take notice, that I, C. D., a resident of the village of , in said county, have a claim against A. B., who was the contractor with E. F., of said vil- lage, for the erection of the building and appurtenances hereinafter men- tioned, amounting to the sum of dollars, for three months' labor performed for the said A. B., as a carpenter and joiner [or, for large quantities of lumber furnished to the said A. B.], in pursuance of an agree- ment with him. That the said labor was performed [or, the said materials were furnished] in erecting the building No. and appurtenances situated on Main Street in said village ; and thirty days have not elapsed since the performance of such labor [or, since the said materials were furnished]. That the said E. F. is the owner, i&o. [conclude as in the last form, from the No. 334. oontraotoe's notiob to enfoeob lien. See ante, Vol. L, p. 666. Is SuPEBME Court [or, In the County Court, County]. A. B., Claimant, against E. F., Owner. To E. F. above named, owner of the bnilding and premises hereinafter mentioned : CH. XVI.] LIEN LAW: GENERAL ACT. 497 Take notice, that I, A. B., above-named, residing ■within the county of , have a claim against you, amounting to the sum of — — dollars, with interest thereon from the day of last, for three months' labor ])erformed for you as a carpenter and joiner [or, for large quantities of lumber furnished to you], in pursuance of an agreement with you, the same being fully set forth in the bill of particulars hereto annexed ; and which labor was performed [or, which materials were furnished] in erecting the building No. , and appurtenances owned by you, situated on Main street (*) in the village of , in the town of , ia said county, the lot upon which the same stand being bounded and described as follows : [deseriie premises]. Also take notice, that within thirty days after the performance and com- pletion of such labor [or, the final furnishing of such materials], to wit, on the day of , 18 — , I duly filed, with the town clerk of said town of , the notice required by law to efiect a lien on the building and premises above mentioned, owned by you as aforesaid, for the amount of the claim above stated, to wit, for the sum of dollars, and interest as aforesaid. You will also take notice, that you are required to appear in person, or by attorney, within thirty days after the service of this notice, and answer the same, and to serve upon me, or my attorney, a copy of your answer, together with a notice of any set-off that you may have; or,- in default thereof, I will take judgment against you for the amount claimed as afore- said, to wit, the sum of dollars, and interest thereon from the day of , 18 — , together with the costs of this action. L. P. C, Attorney for Claimant. A. B., Claimant. Dated, c. [conclude as in the last form from, the asterisk]. [Signed,] 0. D., Claimant. O. P. 0., Att'y for Claimant. [Annex hill of particulars, as in No. 336, ante.] No. 348. OLAIMANT's bill op PAETIOtJLAES IN JUSTICE'S 00T7RT. See ante, Vol. I., p. 613. [Same as in No. 336, ante. No. 349. AFFIDAVITS OP 8EBTI0E OP NOTICE, ETC., ON FAILURE TO APPEAR IN justice's COURT. See ante, Vol. I, p. 673. [For forms of affidavits of service of notice, personal and ly publication, and of affidavit of facts justifying service ly publication, see Nos. 337, 338, 339, ante.] No. 350. affidavit OP owner's DEFAULT IN JUSTICE'S COURT. See ante, Vol. I., p. 614. [Title.] County of , ss. : A. B. above named [or, L. P. C, attorney for A. B. above-named], being duly sworn, says : He is the phiintiff [or, attorney for the plaintiff] in the above action. That this action was commenced to enforce a lien against real property owned by the defendant above named ; and the notice commencing the same is returnable before W. B. B., Esq., justice of the peace, at his office in the town of , on the day of , at ten o'clock A. M., as will more fully appear by said notice hereto annexed. And deponent further says: That the said E. R has not appeared before 506 APPENDIX OF FOEMS. [CH. XVI. the said justice as required by said notice, and that one hour and over has elapsed since the time fixed in said notice for the appearance of said de- fendant. ■ [Signature of deponent] Sworn, Sc. No. 351. ownee's answeb, bbfobe justice. ' See ante, Vol. I., p. 674. [Title as in suit lefore a justice ; and then proceed the same as in 2fb. 342, ante, including the verification and bill of particulars there given.] No. 353. NOTICE EEQUIEIN& CLAIMS TO BE PKBSENTED. See ante, Vol. I., p. 616.' To all persons having claims under any of the provisions of the act en- titled " An act for the better security of mechanics and others erecting build- ings in the counties of Westchester, Oneida, Oortlandt, Broome, Putnam, Rockland, Orleans, Niagara, Livingston, Otsego, Lewis,Orange, and Dutchess," passed April 17, 1854 [and the act to extend the provisions of the above- re- cited act to all the counties of this State, except the city and county of New York and the county of Erie, passed April 14, 1858], against the building No. , and appurtenances, owned by the undersigned, and the land upon which tlie same stand, and which is situated in the town of , in the county of , and is described as follows : [insert irie/ description of prem- ises], at the time of the first publication of this notice (to wit: the day of , 18—). Take notice, that you are required to present the said claims, with vouchers in support thereof, to W. B. B., Esq., a justice of the peace of said town, at his oflBoe, in said town, on or before the 17th day of November next [or, on or before 10 o'clock a. m., of the 17th day of November next]. Dated, Sc. E. P., Owner. No. 353. NOTICE EEQUIEING CLAIMANT TO COMMENCE AN ACTION. See ante, Vol. I., pp. 654, 6'; 7. To A. B. [or, 0. D.], claimant: You will take potice, that you are re- quired, within twenty days after the service of this notice, to commence an CH. XVI.] LIEN LAW : GENERAL ACT. 507 action to enforce a lien, created by you on the day of , 18 — , against the building No. and appurtenances, antl the lot upon which the same stand, owned by E. F., to secure an alleged claim for dollars, alleged to exist against the said E. F., as owner [or, against A. B., as contractor]. The building and premises above mentioned are described in the notice creating said lien, as follows: [insert description]. Dated, So. E. F., Owner, [or, T. C, Attorney for E. F., the owner above named ; or, A. B., Contractor ; or, C. D., Sub-Contractor]. No. 354. AFFIDAVITS OF SKKVIOE OF NO. 353, AND THAT ACTION IS NOT COMMENCED. See ante, Vol. I., pp. 654, 611. County of , ss. : H. S., of , in said county, being duly sworn, says: That, on the day of , 18 — , he personally served a notice, of which the above is a copy, upon A. B. [or, 0. D.], the claimant mentioned therein, by delivering the same to, and leaving the same with, the said A. B. [or, C. D.], at his residence, in the village of , in said county. And deponent further says, that he knew the person so served to be the person mentioned and described in said notice as claimant therein. Sworn, dc. H. S. County of , ss. : E. F., being duly sworn, says : That more than twenty days have elapsed since the service of the notice mentioned in the affidavit of H. S., hereto annexed ; and that no action has been commenced against him to enforce the lien mentioned in said notice. Sworn, &e. E. F. No. 355. SATISFACTION OP LIEN. See ante, Tol. I., p. 678. [Same substantially as in No. 329, ante.'\ 508 APPENDIX OF FORMS. [CH. XVI. m. FoEMS nr Pboceedings to acquire Liens against Ships and Vessels. No. 357. SPE0IFI0ATIO1I8 OF LIEN. See ante, Tol. I., p. 685. City and County of , ss. : A. B., of said city, being duly sworn, deposes and says: He claims a lien upon the ship "Admiral," a sea-going and ocean-bound vessel \or other description of the »«««eZ], her tackle, apparel, and furniture, for a debt amounting to dollars, contracted by C. D., master [or, owner, &c,, as the case may he] of said vessel, within the State of New Yorlt, for the following purposes: On account of work done [or, materials, or, other articles, furnished, in this State], for or toward the building [or, repairing, or, fitting, or, furnishing, or, equipping] such vessel [or, for such provisions and stores, furnished within this State, as were fit and proper for the use of such vessel at the time when the same were furnished ; or, on account of the wharfage and expenses of keeping such vessel in port, including the expense incurred in employing persons to watch her; or, on account of loading, or unloading ; or, for advances made for the purpose of procuring necessaries for such vessel ; or, for the insurance of such vessel ; or (if the debt aw.ounts to $25 or upward), on account of the towing or piloting of such vessel ; or, on account of the insurance, or premiums of insurance, of or on such vessel, or, of or on the freight of such vessel]. And deponent further says, that the following are specifications of the said lien, consisting of a bill of particulars of his aforesaid demand [or, consisting of a copy of the written contract under which the said work was done], and containing a statement of the amount claimed to be due from said vessel, viz. : [set out the items, with amounts, &c., inJuU]. And deponent further says, that the said specifications are correct, ac- cording to his best knowledge, information, and belief. Sworn, <£c. A. B. E. L. S., Attorney for Applicant. No. 358. , APPLICATION FOE WAEEANT. See ante, Vol. I., p. 687. In the matter of the attachment of ! the ship "Admiral," her tackle } apparel, and furniture. | To the Hon. W. H. L., Justice of the Supreme Court : The application of A. B. shows, that he has due to him a debt amounting CH. XVI. J LIEN LAW: SHIPS AND VESSELS. 509 to dollars, contracted by 0. D., master [or, owner, dc, a« the ease may he] of the ship "Admiral," a sea-going and ocean-bound vessel [or other description of the vessel], her tackle, apparel, and furniture, within the State of New York, for the following purpose: On account of work done, in said State, for or toward the building of said vessel [or for any other of the pur- poses stated in the last form]. The said applicant further shows, that the said debt is a lien upon said vessel, her tackle, apparel, and furniture, and was contracted by 0. D., the master [or, owner, or as t?ie case may he] of said vessel, within the said State, to wit, at the city of New York, for the purpose aforesaid, on the day of , 18 — ; that the said debt amounted to the sum of dollars, and that the same is justly due to the said applicant, over and above all payments and just deductions; that the following are the items composing said debt, viz. : [set out the itcTns ; or, if they are numerous, say : that the items composing said debt are set forth in the account or schedule annexed hereto, and forming a part of this application]. And the said applicant further shows, that the said debt was, on the day of , 18 — , by an assignment in writing, prepared and executed in due form of law, assigned and transferred to the said applicant, who is now . the holder and owner of the same. That six months have not expired since said debt was contracted [or, that the said debt was contracted on the day of , 18 — , and, at the ex- piration of six months from that date, the said vessel was absent from the port at which such debt was contracted ; and that ten days have not expired since said vessel next returned to the said port] ; that the said vessel left the port at which such debt was contracted on the day of , 18 — ; and that the said applicant did, on the— — day of , 18 — , and within twelve days after such departure, cause to be drawn tip and filed, in the office of the clerk of tlie city and county of New York, specifications of such lien, consisting of a bill of particulars of his demand [or, consisting of a copy of the written contract under which the said work was done], and containing a statement of the amount claimed to be due from said vessel, the correctness of which was duly sworn to by said applicant. [If the lien is upon a vessel navigating the western or north-western lakes, instead of the last paragraph, insert the following : That six months after the first day of January next succeeding the time such debt was contracted, have not expired [or. That the said debt was contracted on the day of , 18 — , and, during the six months after the first day of January next succeeding the time such debt was contracted, the said vessel was absent from the port at which such debt was contracted, and that ten days have not expired since the said vessel next returned to the said port] ; that the said applicant did, on the day of — — , 18 — , and by the first Tuesday of February next succeeding the time such debt was contracted, cause to be drawn up and filed, in the office of the clerk of the county of Brie, specifica- tions of such lien, consisting of a bill of particulars of his demand [or, con- sisting of a copy of the written contract under which the said work was 510 APPENDIX OF FORMS. [CH. XVI. done], and containing a statement of the amount claimed to be due from said vessel, the correctness of which was duly sworn to by said applicant.] Wherefore, the said applicant prays for a warrant to enforce the said lien against the said>essel, her tackle, apparel, and furniture, and to collect the amount of his aforesaid demand, pursuant to the provisions of the statute pro- viding for the collection of demands against ships and vessels, passed April 24, 1862, and the acts amendatory thereof. Dated, cfcc. A. B. E. L. S., Att'y for Applicant. City and County of New York, ss. : A. B. being duly sworn, deposes and says : He is the applicant in the foregoing application named ; that the said application is true, to his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to he true. Sworn, <£«. A. B. No. 359. APPLICATION FOE WARRANT AGAINST PEOOEEDS. See ante, Vol. I., pp. 687, 695. [Same as in last form,' except that hefore the prayer insert the following clause .•] And the said applicant further shows, that th6 said vessel has been seized by the sheriff of the city and county of New York, under a warrant issued on the day of , 18 — , by the Hon. W. H. L., justice of the Supreme Courtj on the application of E. F. ; that the said vessel, together with her tackle, apparel, and furniture, has been sold by the said sheriff, and that the proceeds of such sale amount to dollars, which now stand in place of said vessel, and have not been distributed. No. 360. inrDBETAEING BT APPLICANT. See ante, Vol. I., p. 688. [Title as in No. SS8.] A. B. having applied to W. H. L., one of the justices of the Supreme Court, for a warrant to enforce the lien of said applicant upon the ship " Ad- miral," and to collect the amount of his demand : We, A. B., of No. 30 Street, in the city of New York, and S. D., of No. 32 Street, in the same city, merchants, do undertake, pursuant to the statute in such case made and provided, in the sum of dollars, that if the said applicant do not, within three months from the delivery hereof to CH. XVI.J LIEN LAW: SHIPS AND VESSELS. 511 the said officer, prosecute any bond which raay be given upon the discharge of such warrant, or if the said applicant, in any action brought upon such bond, be finally adjudged not to have been entitled to such warrant, they will pay all costs that raay be awarded against the said applicant, not exceeding the said sum of dollar^, and any damages that may be sustained by reason of the seizure of such vessel under such warrant, not exceeding fifty dollars. [Add proof or acknowledgment, and affidavit of surety, as in No. 44.] Appkoval \to he indorsed] : I approve of the within undertaking. W. H. L., Justice, tfcc. No. 361. WARRANT OF ATTACHMENT. See ante, Tol. L, p. 688. To the Sheriff of the City and County of New York, greeting: Whereas, A. B. has this day presented an application to me, duly verified, exhibiting an account of his demand against the ship "Admiral," now at the port of New York, within the State of New York, whereby it appears that a lien exists upon the said vessel, her tackle, apparel, and furniture, for the sum of dollars ; and in which he prays for a warrant to enforce the said lien, and to collect the amount of his demand, pursuant to the provisions of the statute providing for the collection of demands against ships and vessels. And the said A. B. having delivered to me the undertaking required by law, to be filed by me. You are commanded, therefore, to attach, seize, and safely keep the said vessel, her tackle, apparel, and furniture, to satisfy such claim, if established to be a lien upon such vessel according to law, and to make return of your proceedings under this warrant to me within ten days after you shall have made such seizure. Witness my hand at the City Hall, in the city of New York, the day of ,18—. W. H. L., E. L. 8., Justice of the Supreme Court. Attorney for Applicant. No, 362. NOTIOB TO PAETIES INTERESTED — TO BE PtTBLISHED. See ante, Vol. I, p. 689. [Title as in No. 358.] Notice is hereby given, that on the day of , 18 — , a warrant of attachment was issued by the Hon. W. H. L., justice of the Supreme Court 512 APPENDIX OF FOEMS. [CH. XVI. in and for the city and county of New York, for the sum of dollars, on the application of A. B., directed to the sheriff of said city and county, com- manding him to attach, seize, and safely keep the ship "Admiral," then at the port of New York, to satisfy the claim of the said A. B. specified therein at dollars ; and that the said vessel, her tackle, apparel, and furniture will be sold for the payment of the claims against her, unless the master, owner, or consignee thereof, or some person interested therein, appear and discharge such warrant according to law, within thirty days from the first publication of this notice. Dated, t&c. Yours, &o., E. L. S., Attorney for Applicant. No. 363. NOTIOB OF APPLICATION TO DI80HAEGE WAHBANT. See ante, VoL I., p. 689. [Title as in No. 358.] To A. B. [or, to E. L. S., Attorney for A. B.] Take notice, that J shall apply to the Hon. W. H. L., justice of the Supreme Oou^t, at chambers in the City Hall, New York, on the day of , 18 — , at ten o'clock in the forenoon, for an order to discharge the warrant issued by him in this matter on the day of , 18 — ; and that the following are the names, places of residence, and places of business of the sureties in the bond proposed to be given by me to obtain such discharge, viz. : S. D., residing at No. 93 Livingston Street, Brooklyn, and doing busi- ness at No. 161 Broadway, New York, and L. P., residing at No. 13 Bond Street, and doing business at No. 44 Broad Street, New York. Dated, &e. Yours, &c., 0. D., Owner of said vessel. No. 364. BOND TO OBTADf DI80HAKGE OF WAKHANT. See ante, Tol. I., p. 690. [Title as in No. 358.] Know all men, by these presents, that we, 0. D., residing at No. , in the city of New York, owner of the ship "Admiral," S. D., residing at No. 93 Livingston Street, in the city of Brooklyn, and L. P., residing at No. 13 Bond Street, in the city of New York, are held and firmly bound unto A. B., of said city, his executors, administrators, and assigns, in tlie sura of dol-- lars, lawful money of the United States; for which payment well and truly CH. XVT.] LIEN LAW : SHIPS AND VESSELS. 513 to be made, we bind ourselves, our, and each of our, heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , 18 — . "Whereas, the sheriff of the city and county of New York has seized the ship "Admiral," her tackle, apparel, and furniture, by virtue of a warrant issued on the application of A. B., claiming to have a lien thereon under the provisions of the act entitled "An act to provide for the collection of de- mands against ships and vessds," passed April 24, 1862. Now, therefore, the condition of this obligation is such, that if the obli- gors above named will pay the amount of any and all claims and demands which shall be established to be due to the said A. B., and to have been a subsisting lien upon such vessel, pursuant to the provisions of the act afore- said, then this obligation to be void, otherwise, to remain in full force and virtue. Sealed and delivered in 0. D., [l. a.] presence of S. D., [l. b.] 0. P. L. P., [l. 8.] [Add proof or acknowledgment, and affidavit of sureties, as in No. 44.] No. 365. OBDEB DISOHAEGING WAKEANT. See ante, Vol. L, p. 690. [Title as in No. S58.] ■, A warrant of attachment having heretofore been issued by me to the sheriflf of the city and county of New York, pursuant to the provisions of the act entitled "An act to provide for the collection of demands against ships and vessels," passed April 24, 1863, on the application of A. B. against the ship "Admiral," her tackle, apparel, and furniture; and the said vessel having been seized by the said sheriff, and 0. D., the owner of said vessel, having applied to me to discharge the said vessel, and executed a bond ac- cording to law, which has been delivered by me to the said A. B., and the taxed fees of the sheriff having been paid : Now, on motion of T. C, attorney for said cPwner, I do hereby order that the said warrant be, and the same is hereby, discharged. W. H. L., Justice of the Supreme Court. Vol. II.— 33 514 APPENDIX OF FORMS. [CH. XVI. No. 366. COMPLAINT ON BOND. See ante, Vol. I., p. 691. [Title substantially as in No. 165.] The plaintiff complains of the defendant, and showa to the court : That, as the plaintiff is informed and beliefes, the defendant, C. D., was the owner of the ship ''Admiral," at the several times hereinafter named, and that the said ship was a sea-going and ocean-bound vessel. That the said 0. D., on the day of , 18 — , contracted a debt to the plaintiff, within this State, on account of work done and materials furnished in this State, for or toward the repairing, fitting, furnishing, or equipping said vessel [or as the nature of the debt may Se], which said work and materials were of the value of dollars, and that there was justly due the plaintiff upon the said account, on the day of , 18 — , the sum of dollars, .over and above all payments and just deductions. The plaintiff further shows, that on the day of — — , 18 — , and within twelve days after the departure of said vessel from the port at which -euch debt was contracted, the said plaintiff caused to be drawn up specifica- tions of his lien upon the said vessel (the correctness of which was duly sworn !to iby the plaintiff), and filed the same in the clerk's office of the city and rc&unty of New York, in which county the said lien was created ; and that •the said claim was a subsisting lien upon the said vessel at the time of the exhibition thereof, as hereinafter mentioned. That the said vessel left the port'of New York on the day of , 18 — , and did not return until the day of , 18 — . Th« plaintiff further shows, that on the ^ — - day of , 18 — , the said plaintiff, pursuant to an act entitled " An act to provide for the collection of -demands against ships and vessels," passed April 24, 1862, duly applied to fthe Hon. W. H. L., one of the justices of the Supreme Court, in the city .«nd couBty of New York (that being the county within which the said vessel ?then was), for a warrant to enforce the said lien, and to collect the amount 'thereof:; .that the said application was in writing, duly verified by the plain- tiff, and exhibited by whom and when such debt was contracted, and for what vessel:; the items composing such debt ; the amount claimed, and that the same wjis justly due to the plaintiff over and above all payments and jnst deductions, and the time anjl place when and where the specifications of such debt were filed. That thereupon the said officer issued his warrant to the sheriff of the city and county of New York, commanding him to attach, seize, and safely keep such ship, her tackle, apparel, and furniture, to satisfy such claim, if established, to be a lien according to law, and to make return of his proceedings under such warrant to the said oflBcer within ten days after such seizure. That the said sheriff did, in pursuance of such warrant, forthwith execute the same, and seized the said vessel as therein directed, That, thereupon C. D., owner of the said vessel, on the day of . Cfl. XVI.] LIEN LAW : SHIPS AND VESSELS. 515 18 — , and before any order for the sale of said vessel was made, applied to the said justice for an order to discharge the said warrant, and thereupon the said C. D. and the other defendants, S. D. and L. P., duly executed and delivered to the said justice a bond to the creditors prosecuting such war- rant, a copy of which is annexed hereto, marked as " Schedule A," whereby they bound themselves, jointly and severally, to pay the plaintiff the sum of dollars, subject to the condition expressed in said bond ; and that thereupon the said warrant was discharged. And the plaintiff further shows, that the condition of said bond has been broken by the defendants, and assigns, as a breach of the condition of said bond, that the plaintiff's said claim has not been paid, nor any part thereof; and that the whole amount thereof is due to the plaintiff, with interest thereon from the day of , 18 — . Wherefore, the plaintiff demands judgment against the defendants for the said snni of dollars, with interest thereon from the day of , 18 — , together with the costs of said attachment, and the costs and allow- ances of this action. E. L. S., Attorney for Plaintiff. [Add verification, if desired, as in No. 169.] No. 367. AFFIDAVIT TO OBTAIN ORDBB OF SALE. See ante, Vol. 1, p. 692. [Title as in No. 358.] City and County of New York, ss. : A. B., being duly sworn, says : He is the applicant for the warrant of attachment in this proceeding ; which warrant was issued against the ship "Admiral," by the Hon. W. H. L., one of the justices of the Supreme Court, on the day of , 18 — , and directed to the sheriff of the city and county of New York ; and that the said ship, together with her tackle, apparel, and furniture, was seized by the said sheriff on the same day. That thirty days have elapsed since the first publication of the notice required by the 9th section of the act entitled " An act to provide for the collection of demands against ships and vessels,'' passed April 24, 1862, under which the said proceeding was taken ; that the amount of deponent's claim is dollars ; that the same has not been satisfied, and that the said vessel has not been discharged. And deponent further says, that, 8(c. [set forth the other unsatisfied claims, if any, which have been exhiiited agaiTist the vessel ; and annex to the affidavit proof of the publication of the notice above mentioned. See form of affida/nit of publication. Appendix, No. 190, with necessary alteration^]. Sworn, <&e. A. B. 516 APPENDIX OF FORMS. [CH. XVI. No. 368. A.FFIDATIT, NOTICES, ETC. See ante, Vol. I., p. 692. [If the application for the order of sale is made upon proof of the per- gonal service of the notice required by the 9th section of the statute, and of notice to the owner, &c., follow the affidavit in the last form, omitting the clause in reference to the expiration of thirty days ; and, instead of annexing proof of the publication of notice, annex proof of the personal -service of the notices required by the statute [ante, Vol. I., p. 692]. For forms, see Appendix, No. 337.] The following form of notice of application for the order of sale may be used : [Title as in No. 358.] To 0. D., owner, and to, <&e. [the other creditors]. Take notice, that I shall apply to the Hon. W. H. L., justice of the Su- preme Court, at chambers, in the City Hall, New York, on the day of , 18 — , at ten o clock in the forenoon, for an order to the sheriif of the city and county of New York, directing him to sell the ship " Admiral," her tackle, apparel, and furniture, to satisfy the claims which I have against the said ship, &o., under the provisions of the act entitled " An act to provide for the collection of demands against sliips and vessels,'' passed April 24, 1862. Yours, &c., A. B. Dated, dc. No. 369. OEDEE DIEEOTING SALE. See ante, Vol. I., p. 692. [Title as in No. 358.] A warrant of attachment against the ship '' Admiral" having been issued by me on the day of , 18 — , on the application of A. B., pursuant to an act entitled " An act to provide for the collection of demands against ships and vessels," passed April 24, 1862, directed to the sheriff of the city and county of New York ; and the said vessel having on the same day been seized by the said sheriff; and more than thirty days having elapsed since the first publication of the notice required by the ninth section of said act; and the claim of the said A. B. not having been satisfied, and the said vessel not luiving been discharged; I do hereby direct the said sheriff to proceed and sell tlie said vessel, her tackle, apparel, and furniture. And I do hereby declare that the amount deemed necessary to be raised, to satisfy all unsatisfied liens which have been exhibited against the said vQssel, is the sum of dollars. CH. XVI.] LIEN_ LAW : SHIPS AND VESSELS. 517 I do further order, that notice be published in the (that being tlie newspaper in which the notice of seizure was published), once a week for three weeks, requiring all persons who have any liens upon the said vessel by virtue of the provisions of the said statute, and the master, owner, agent, or consignee, and all other persons interested in the said vessel, to appear before ine at the chambers of the Supreme Court, in the City Hall, New York, on the day of , 18 — , at 10 o'clock in the forenoon [or, before L. F., Esq., referee, on the day of , 18 — , at his office. No. 128 Broadway, New York], to attend a distribution of the proceeds arising from the sale of such vessel, her tackle, apparel, and furniture. [And I do hereby further direct that the said distribution be made before the said L. F., who is hereby appointed referee for that purpose.] W. H. L., Justice of the Supreme Court. No. 370. NOTICE OP DISTBIBTJTION— TO BE PUBLISHED. See ante, Vol. I., p. 695. [Title m in ITo. 358.] Notice is hereby given that the ship "Admiral," her tackle, apparel, and furniture, will be sold by the sheriff of the city and county of New York, on the day of , 18 — , at 12 o'clock at noon, on board of said vessel, at Pier No. — East Eiver, New York, by virtue of a warrant directed to the said sheriff on the day of , 18 — , pursuant to the provisions of an act entitled " An act to provide for the collection of demands against ships and vessels," passed April 24, 1862; and that all persons having any liens upon the said vessel, by virtue of the provisions of the said act, and the- master, owner, agent, or consignee, and all other 'persons interested in the said vessel, are required to appear before the Hon. W. H. L., justice of the Supreme Court, at chambers, in the City Hall, New York, on the day of , 18 — , at 10 o'clock a. m. [or, before L. F., Esq., referee duly ap- pointed for that purpose, on the day of , 18 — , at his office. No. 128 Broadway, New York], to attend a distribution of the proceeds arising from the sale of such vessel, her tackle, apparel, and furniture. Dated, Se. E. L.' S., Attorney for Attaching Creditor. No. 371. sheriff's eetcen. See ante, Vol. I., p. 693. [Title as in No. 358.] To Hon. W. H. L., Justice of the Supreme Court : I, J. K., sheriff of the city and county .of New York, to whom, on the application of A. B., a warrant of attachment, against the ship "Admiral," 518 APPENDIX OF FORMS. [CH. IVL was issued on the day of , 18 — , under the provisions of the act entitled, "An act to provide for the collection of demands against ships and vessels," passed April 24, 1862, do return, tliat on tlie day of , 18 — , I seized the said vessel, her tackle, apparel, and furniture. I further return, that on the day of , 18 — , I received an order, dated on that day, directing me to proceed and sell the said vessel, her tackle, apparel, and furniture ; that I thereupon proceeded to sell, and did sell, the said vessel, her tackle, apparel, and furniture, upon the same notice, in the same manner, and in all respects subject to the provisions of law in case of the sale of personal property upon execution ; which sale took place on board of said vessel, in the city of New York, on the day of , 18 — ; and that S. S. was the purchaser of said vessel, her tackle, apparel, and furniture, at the sum of dollars. That my fees and expenses in seizing, preserving, watching, and selling said vessel have been duly taxed, and amount to the sum of dollars; and that the proceeds of said sale, after deducting such fees and expenses, amount to dollars. I further return, that I have not seized the said vessel by virtue of any other warrant than that above mentioned [or, i/'iAere are other warrants, state in whose iehalf, and for what sums respectively, and the time of his reception thereof]. Dated, &c. J. K., Sheriff. No. 372. ANSWER CONTESTING APPLICANT'S CLAIM. See ante, ToL I., p. G94. [Title as in No. 358.] 0. D., the owner {or, master, &c. ; or, a person having an interest in the proceeds] of the ship "Admiral," contests the claim which has been exhib- ited by A. B. against the said vessel, and makes the following objections tliereto : 1. He denies the allegations in the written application of the said A. B., that, &c. [set out the matters intended to he controverted]. 2. He further shows, by way of defense to the said claim, that, &c. [set up matters of defense ; as, payment, do.] C. D. City and County of New York, ss. : C. D., the owner named in the above answer, being duly sworn, says, that the said answer is true to the best of his knowledge and belief. Sworn, Sc. 0, d_ • CH. XVI.] LIEN LAW : SHIPS AND VESSELS. 51w No. 373. OEDEK OF KBPBKBNOE. See ante, Vol. I., p. 695. [Title as in No. 358.] The issue in this matter, between A. B., applicant, and 0. D., owner and contestant, is hereby referred to L. F., Esq., to hear and determine the same. Dated, &c. W. H. L., Justice, <6c. No. 374. OBDEB DJEBOTINO DISTEIBUTIOV. See ante, VoL I., p. 696 [Title as in No. 358.] It appearing to me that due notice has been published requiring all persons who have any liens upon the ship " Admiral," under the provisions of the act entitled " An act to provide for the collection of demands against ships and vessels," passed April 24, 1862, and the master, owner, agent, or consignee, and all other persons interested in the said vessel, to appear before me on the day of , 18 — , to attend a distribution of the pro- ceeds arising from the sale of said vessel, her tackle, apparel, and furniture. And the said parties having appeared before me at the time stated in said notice; and the various claims found to be subsisting liens upon the said vessel, having been exhibited to me ; Now, therefore, it is ordered that the claims aforesaid, amounting, re- spectively, to the sums hereinafter mentioned, be paid by the sheriff of the city and county of New York, out of the proceeds of the sale of said vessel, in the following order : 1. To A. B., the sum of dollars, and interest thereon from the day of , 18 — ; and also the sum of dollars, being the costs, expenses, and allowances awarded to the said A. IJ. in this matter. 2. To E. F., the sum, dee. [as heforel. Dated, &c. W. H. L., Justice. No. 375. LIKE OBDEB, WHEBE CLAIMS HAVE BEEN CONTESTED. See ante, Vol. I, p. 696. At a special term, &e. [as in No. 6]. [Title Of m No. 358.] It appearing to the court that the amount of all the claims which have been exhibited in this matter against the ship ''Admiral," and which are 520 APPENDIX OF FORMS. CH. XVI.] found to have been subsisting liens upon the said vessel at the time of ex- hibiting the same, have been finally determined. Now, on motion of E. L. 8., .attorney for A. B., applicant, after hearing T. C, attorney for the owner, it is ordered, that the proceeds of the sale of said vessel be distributed and paid by the sheriff of the city and county of New York, as follows : 1. To A. B., the sum of dollars, and interest thereon from the day of , 1 8 — . 2. To E. F., the sum, d;c. [as iefore]. It is further ordered, that the said sheriflf pay to the said A. B. the sum of dollars for his costs, expenses, and allowances in this matter [or other provision as to coats\. No. 376. tlKB OEDEE, IN EESPEOT TO PEIOE UNOOITTESTED CLAIMS. See ante, ToL I., p. 636. [Title, &e., as in last form.] It appearing to the court that the claim of A. B. in this matter, amount- ing to dollars, is a valid and subsisting lieu upon the ship -'Admiral," her tackle, apparel, and furniture; that the said claim is uncontested; and that the same is entitled to be paid out of the proceeds of the sale of said vessel prior to the claims of E. F. and G. H., both of which are contested. It is now, on motion of E. L. S., attorney for the said A. B., after hearing T. C, attorney for the other parties interested, ordered that the sheriff of the city and couptv of New York pay the said A. B., out of said proceeds, the anionnt of Lms aforesaid claim, to wit: dollars, and interest thereon from the day of , 18 — , together with dollars costs and ex- penses. No. 377. LIKE OEDEE, IN EE3PECT TO SUBSEQUENT UNCONTESTED CLAIMS. See ante, Vol. I., p. 696. [Title, Sc. as in last form.] It appearing to the court that the claim of A. B. against the ship "Admiral," amounting to dollars, has been contested. by the owner of said vessel ; and that the subsequent claim of E. F., amounting to dollars, has not been contested ; and that those are the only claims against the said vessel ; and it appearing also, that the proceeds of the sale of said vessel, iiow in the hands of the sheriff of the city and county of New York, amount to dollars, and that, after deducting an amount sufficient to pay the said contested claim, with the costs, there will remain a surplus of such proceeds applicable to the payment of such subsequent uncontested claim : Now, on motion of T. 0., attorney for E. F., after hearing E. L. S., at- CH. XVI.] LIEN LAW: SHIPS AND VESSELS. 521 torney for A. B., and J. W. F., attorney for the other parties interested, it is ordered, that the said sheriff pay out of such surplus the claim of the said E. r., amounting to dollars, with the interest upon the same, from the day of , 18 — , together with dollars, costs and expenses. No. 378. NOTICE OF APPLICATION FOE SURPLUS PKOOEEDS. See ante, Vol. I, pp. 696, 69T. [Title as in N . 358.] Kotioe is hereby given, pursuant to an act entitled " An act to provide for the collection of demands against ships an^ vessels," passed April 24, 1862, that the ship " Admiral " was sold under and by virtue of a warrant issued in this matter, on the day of , 18— ; that the proceeds of said sale amounted to dollars, and that a surplus thereof remains after paying all claims which have been exhibited and payable out of such proceeds ; which surplus amounts to dollars; and that CD., the late owner.of said vessel, will apply to the Hon. W. H. L., one of the justices of the Supreme Court, at the chambers of the said court, in the City Hall, New York, on the day of , 18— , at 10 o'clock in the forenoon, for an order directing the said surplus proceeds to be paid over to him, as the person entitled thereto. Dated; &c. A. N. "W., Attorney for said 0. D. No. 379. APPLICATION TO DISOHAEaE LIEN NO WARRANT ISSUED. See ante, Vol. I., p. 697. [Title as in No. 358.] To Hon. W. H. L., Justice of the Supreme Court : The a|iplication of C. D. shows that he is the owner of the ship" " Ad- miral"; that A. B., on the day of -, 18 — , filed in the clerk's office of the city and county of New York specifications of his lien upon the said ship, and that no warrant has yet been issued to enforce the same ; that the amount of the lien claimed by him to be subsisting ftgainst the said vessel is the sum of dollars, and interest thereon from the day of , 18 — ; that the said applicant has a defense to the said lien ; and that the grounds of such defense are [set out the grounds of defense]. (*) That the said applicant desires the discharge of said lien, and his proposed sureties for the same are 8. D., residing at No. 93 Livingston Street, Brook- lyn, whose place of business is at No. 161 Broadway, New York, and L. P., residing at No. 13 Bond Street, and whose place of business is at No. 44 Broad Street, New York. 522 APPENDIX OF FOBMS. [CH. XVI. Wherefore the said applicant prays for leave to discharge the said lien, upon giving bonds pursuant to the statute. Dated, &c. 0. D. [Add verification as in No. 358, amd annex to the application the following notice .•] [Title as in No. 358.] To A. B : Take notice that an application, of which the annexed is a copy, will be presented to Hon. W. H. L., justice of the Supreme Court, at the City Hall, New York, on the day of , 18 — , at ten o'clock a. m. Yours, &c., A, N. "W., Attorney for C. D. Dated, &e. No. 380. OUDKE GEANTING LEAVE TO BOND THE CLAIM. See ante, "Vol. I., p. 697. [Title as in No. 358.] It appearing by the application of 0. D., that he is the owner of the ship " Admiral " ; that, &e. [recite the matters in the last form to the asterisk (*), and then as follows :] It appearing further, by due proof, that a copy of the said application, with notice of the time and place of presenting the same, was served on the said A. B. on the day of , 18 — , and no just cause being shown in opposition thereto ; It is now, on motion of T. C, attorney for the said owner, ordered, that the said owner have leave to bond the said claim. It is further ordered that the said bond be made in the penal sum of dollars, and that the sureties therein justify before me on days' notice to A. B., the person having said lien. W. H. L., Justice of the Supreme Court. Dated, Se. No. 381. ORDEB DIEECTIKft DI80HABGE OF LIEN. See ante, VoL I., p. 697. [ Title as in No. 358.] Leave having been given by me, by an order made herein on the day of , 18 — , to bond the ship " Admiral " ; and such bond, approved by me, having been duly executed and delivered to A. B., the person having the lien on said vessel, I do hereby direct that the said lien, amounting to dol- lars, of which specifications were filed in the clerk's office of the city and county of New York, on the day of , 18 — , be marked by said clerk as discharged ; and that the same shall cease to be a lien upon tlie said vessel. W. H. L., Justice, &c. Dated, Sc. CH. XVII.j SPECIAL PARTNERSHIPS. 523 No. 382. A88I&NMBNT OF LIBN. See ante, Vol. I., p. 698. In consideration of dollars, to me in hand paid by G. H., of the city of New York, I have assigned and transferred, and hereby do assign and transfer, unto the said Gr. H., his heirs and assigns, my debt and lien against tlie ship " Admiral " and her owners, whereof specifications were filed in the office of the clerk of the city and county of New York, on the — - — day of , 18 — . The said debt amounts to dollars, and interest thereon from the day of -, 18 — , and is for goods furnished, Sc. [describe the debt]. In witness whereof, I have hereunto set my hand and seal this day of , 18- . A. B. CHAPTER XVII. FORMS IN LIMITED PARTNERSHIPS, AND COMPRO- MISES BY JOINT DEBTORS. No. 383. OBETIFIOATE OF FORMATION OF LIMITED PAETNBE3HIP. See ante. Vol. I., p. 704. This is to certify, that we, whose names are severally undersigned, are desirous of forming, and do hereby form, a limited partnership, pursuant to the laws of the State of New York. 1. The name or firm under which such partnership is to bo conducted is " Smith and Jones " [or, " John J. Smith and Company " ; or, " John J. Smith & Co."]. 2. The general nature of the business intepded to be transacted by such partnership is the general dry goods business, on commission or otherwise. 3. The names of all the general and special partners interested in said business are John J. Smith, Albert Jones, Seth Rogers, and William Brown. The said John J. Smith is a general partner, and his place of residence is in the city and county and State of New York ; the said Albert Jones is also a general partner, and his place of residence is in the city of Brooklyn, in the county of Kings, and State of New York ; the said Seth Eogers is a special 524 APPENDIX OF FORMS. [CH. XVII. partner, and liis place of residence is in Salem, in the county of Washington, and State of New York ; and the said William Brown is also a special partner, and his place of residence is in North Adams, in the State of Massachusetts. 4. The amount qf capital which each of the said special partners has con- tributed to the common stock of said partnership is as follows : The said Seth Rogers has contributed the sum of dollars, and the said William Brown has contributed the sum of dollars. 5. The period at which the said partnership is to commence, is the day of ^ 18 — , and the period at which it will terminate is the day of , 18—. Witness our hands this day of , 18—. John J. Smith. Albeut Jones. Seth Eogees. [Attach U. S. Rev. Stamp.] William Beown. City and County of New York, ss. : On this day of , 18 — , before me personally came the above-named John J. Smith, Albert Jones, Seth Rogers, and William Brown, to me known to be the individuals de- scribed in and who executed the above certificate, and severally acknowl- edged that tliey executed the same. [Signature, So., of Officer.] No. 384. AFFIDAVIT OF A GENEEAL PAETNEE. See ante, Vol I., p. 705. State of New York, i Oity and County of New York, j John J. Smith, of said city and county, being duly sworn, deposes and says : He is one of the general partners named in the certificate hereto an- nexed, and that the sums specified in the said certificate to have been con- tributed, by each of the special partners therein named, to the common stock of the said partnership, have, and each and every of them has, been actually and in good faith paid in cash. . Sworn, c6c. John J. Smite. [Attach U. S. JRev. Stamp.] No. 385. DESieNATION, BY CLEEK, OF NEWSPAPERS IN WHICH TO PUBLISH NOTICE. See ante, Vol. I., p. 706. Let the terms of the limited partnership between John J. Smith, Albert Jones, Seth liogers, and William Brown, be published in the and , two news])apers published in the city and county of New York. Dated, dec. H. G., County Clerk. OH. XVII.] SPECIAL PAKTNEESHIPS. 525 No. 386. NOTIOB OF THE TERMS OF PAETNKESHIP — TO BE PUBLISHED. See ante, Vol. I., p. 706. LIMITED PAETNEESHIP. Notice is hereby given, that a limited partnership has been formed by the nndersigned, pursuant to the laws of the State of New York. That the name or firm under which such partnership is to be conducted is [insert the firm name\ ; that the general nature of the business intended to be transacted by such partnership is {insert if\ ; that the names of all the general and spe- cial partners interested in the said business are \insert the names] ; that the said John J. Smith is a general partner, and his place of residence is in the city and county of New York ; and that the said Albert Jones is also a general partner, and his place of residence is in the city of Brooklyn and county of Kings ; that the said Seth Rogers is a special partner, and his place of residence is in Salem, in the county of Washington; and that the said William Brown is also a special partner, and his place of residence is in North Adams, in the State of Massachusetts; that tlie amount of capital which each of said special partners has contributed to the common stock is as follows : the said Seth Rogers has contributed the sum of dollars, and the said William Brown has contributed the sum of dollars; that the period at which the said partnership is to commence is the day of , 18 — , and the period at which it will terminate is the day of 18—. ^^^^^' <^<'- J""^ J- S^'™' I General Partners. Albeet Jones, ) SETn RoGEES, ) gpg^i^i Partners. William Beown, ) [For affidavit of puhlication of notice, sec ante. No. 190.] No. 387. OlAirSE rtJ PAETNEE8HIP AGEEEMKNT, PEOVIDIKfG FOE CONTINIJANOB OF BUSINESS BY SUBVIVING PAETNEE8. See ante, Vol. I., p. 120. [It is further agreed by and between the said partners, that in the event of the death of any of the partners, whether general or special, the partner- ship shall be continued by the survivors the same as if such partner had remained alive.] 526 APPENDIX OF FORMS. [CH. XVII. No. 388. NOTICE OP DIS80LDTI0N. See ante, Vol. I., p. 717. DISBOLtJTION OF LIMITED PAKTNEESHIP. Notice is hereby given that the limited partnership of "Smith & Jones," composed of the undersigned as general and special partners, is dis- solved by mutual consent. Dated, &c. {Signatures of partners, as in No. 386.] No. 389. OEKTIFICATE SHOWING ADDITIONAL SPECIAL PAETNEKS ADDED TO THE FIBM. See ante. Vol. I., p. T17. This is to certify, that the limited partnership formed on the day of , 18 — , under the name or firm of " Smith & Jones," has been altered or changed by adding to the firm one \or, two, or as the case may Je] special partner, viz. : James Smith, vt'ho resides at , in the county of . We further certify, that the amount of capital which has been contributed by the said James Smith to the common stock of said partnership is the sum of dollars. \If there is more than one additional special pa/rtner, state the amount contributed by each ; and attach U. S. Rev. Stamp.] Dated, tfec. John J. Smith, Albert Jones, General Partners. State of New York, ) City and County of New York, j John J. Smith above named, being duly sworn, deposes and says : He is one of the general partners in the firm of " Smith & Jones," mentioned in the above certificate ; and that the matters stated in the said certificate are true according to the best of his knowledge and belief. ' Sworn, <&c. John J. Smith. No. 390. NOTICE OF BALE BY SPECIAL PABTNBB. See ante, Vol. I., p. 718. To whom it may concern : Take notice, that I have this day sold and transferred to E. F., of , in the county of , all my right, title, and interest in and to the limited partnership firm of " Smith & Jones," in which firm I was a special partner, having contributed to the common stock of said firm the sum of dollars. Seth Rogers. Dated, <&c. CH. XVIII.J LUNATICS, HABITUAL DRUNKARDS, ETC. 527 No. 391. BBLEA8K OF ONE OF TWO OE MORE JOINT DEBTORS. See ante, Vol. I, p. 720. Whereas, John Jones and Henry Jones, of the city and county of New York, lately composing the firm of John Jones & Co., are indebted to me, the undersigned John J. Smith, of the same place, in the sum of dollars, upon a judgment duly recovered by me against them in the Supreme Court of the State of New York, which judgment was for dollars, an'd was docketed in the clerk's office of said city and county on the day of , 18 — [or, for goods, wares, and merchandise sold and delivered by me Vo the said firm, prior to the dissolution thereof]. And whereas, I have agreed with the said Henry Jones to release and discharge him from such indebtedness, under the authority of the act for the relief of partners and joint debtors, passed April 18, 1838. Now, therefore, in consideration of the sum of dollars, to me in hand paid by the said Henry Jones, at or before the execution of this release, the receipt whereof is hereby acknowledged, I have exonerated, released, and discharged, and do, in pursuance and under the authority of the statute afore- said, hereby exonerate, release, and discharge the said Henry Jones of and from all and every individual liability, claim, and demand whatsoever, arising from, or in respect to, the indebtedness aforesaid. Dated, <&c. John J. Smith. CHAPTER XVIII. FORMS IN" RESPECT TO IDIOTS, LIWATICS, HABITUAL DRUNKARDS, Etc. No. 393. PETITION FOB A COMMISSION OF LUNAOT. See ante, p. 6. In Supeemb Cottet [or other court] : In the matter of A. T. E., a supposed lunatic. To the Supreme Court of the State of New York [or, To the County Court of the County of ; or, To the Court of Common Pleas of the City and County of New York]. 528 APPENDIX OF FORMS. [CH. XVIII. The petition of H. R., of the town of , in the county of , respect- fully shows: That A. T. R., who resides in said town of , farmer, and who is the father of your petitioner, now is, and, for the space of two or more years last past, has been, so far deprived of his reason and understanding, as to be altogetlier unfit and unable to govern himself, or to manage his affairs, as will more fully appear by the affidavits hereto annexed. [If the supposed lunatic is a non-resident, then proceed : And yonr peti- tioner further shows, that the said A. T. R. is the owner of property situated within this State.] Your petitioner, therefore, prays that a commission, in the nature of a writ *de limatico inquirendo, may issue out of, and under, the seal of this court, to inquire of the lunacy of the said A. T. R., and to be directed to such persons as to the court may seem proper. L. P. C, Attorney. H. R. State of New York, / County of , ) On this day of , 18 — , before me personally appeared the above- named H. R., and made oath that he has read [or, heard read] the above petition subscribed by him, and knows the contents thereof, and that the same is true of his own knowledge, except as to thei matters which are therein stated to bo on his information or belief, and that, as to those matters, he believes it to be true. A. B. L., Justice of the Peace. AFFIDAVITS ANNEXED. [Title as in No. 393.] County of , ss. : R. T., of , in said county, being duly sworn, says: That he ia well acquainted with A. T. R., of said town of , and has been acquainted with him for ten years or more last past; that the said A. T. R., for the last six years, has at times been more or less affected by an alienation of mind, rendering him unfit, for the time being, to have the government of Iiimself, or the management of his affairs. And deponent further says, that he has seen the said A. T. R. frequently within tlie last two years; and that, according to the best of his judgment and belief, the said A. T. R. has been, during the whole of that time, of unsound mind and understanding. And deponent further says, that the language and actions of the said A. T. R., during the past two years, have been these of an insane person. That, &c. [set out the acts and language of the party indicating insanity or unsoundness of mind, &c.'\ And deponent believes that the said A. T. R. is still of unsound mind and understanding, and unfit for the government of himself, or the management of his affairs. Sworn, &c. R. T. [Title as in Ko. 893.] County of , ss. : G. A., being duly sworn, says: That he is a prac- ticing physician, and resides in the town of , In said county; that he CH. XVIII.] LUNATICS, HABITUAL DRUNKARDS, ETC. 529 13 acquainted with A. T. R., of said town of , and has attended him sev- eral times professionally within the last year, and has seen him frequently within the past two years. And deponent further says : That the said A. T. R., in the opinion of de ponent, is of nnsoundmind and understanding, and wholly unfit for the gov- ernment of himself, or the management of his property ; and that he has been in that state or condition for two or more years last past. That the grounds of deponent's opinion and belief are as follows : [set out reasons for the opin- ion, and the facts and circumstances showing insanity, or unsoundness of mind, in the party. 1 Sworn, &c. G. A. No. 394. PETITION POE COMMISSION ON THE GBOITND OF BXTEBMB OLD AGE. See ante, p. 6. [Title, Sc, as in No. 393.] The petition of H. R., of the town of •, in the county of , shows : That he is the nephew and one of the next of kin of J. D., of the town of , in said county ; that the said J. D. is of the age of ninety years and upward ; that by reason of such extreme age, she is so far deprived of her reason and understanding as to be altogether unfit and unable to govern herself, or to manage her affairs, as will more fully appear by the affidavits hereto annexed. Your petitioner, therefore, Ac. [conclude as in No. No. 395. PETITION FOK A COMMISSION OF IDIOOT. See ante, p. 6. [Title as in No. 393.] The petition of H. M., of the town of , in said county, shows : That he is a brother of L. M., of the town of , in said county. That the said L. M. has been from the time of his birth, and still is, wholly deficient in rea- son and understanding, and to all intents and purposes an idiot ; as, by the affidavits hereto annexed, will fully appear. Tour petitioner, therefore, prays that a commission, in the nature of a writ de idiota inquirendo, may issue to inquire of the idiocy of the said L. M., directed to such persons as to the court may seem proper. [Verijieation as in No. 393.] H. M. ToL. II.— 34 580 APPENDIX OF FOEMS. [CH. XVIII. No. 396. PBTITIOW FOR A OOMMISSIOIT AGAINST AN HABITtTAL DBTJNZAED. See ante, p. 6. [Title, (fee, as in No. 893.] The petition of J. P., of the town of , in the county of , shows : That 0. P., aged about thirty years, who resides in said town, and who is a brother of your petitioner, is an habitual drunkard, and has been such for six months, or more, last past. And your petitioner farther shows : That about one year ago, the said 0. P. began the use of intoxicating drinks, and shortly thereafter became quite intemperate. That for the six months last past he has been an habitual drunkard, and in consequence thereof has, during the whole of that time, been incapable of conducting his own affairs, and is still in the same condition ; as, by reference to the affidavits hereto annexed, will more fully appear. Your petitioner therefore prays that a commission may issue, to inquire of the habitual drunkenness of the said 0. P., to be directed to such persons as to the court may seem proper. J. P. [ Verification as in No. 393.] No. 397. PETITION BY 0VEB8EEES OF THE POOE FOB A COMMISSION ASAINST AN HABITUAL DKUNKAKD. See ante, p. 3. [Title, Sc, as in No. 393] The petition of R. F. and C. A. respectfully shows : That they are over- seers of the poor of the town of , in the county of . That 0. P., who resides in said town of — ■ — , farmer, is an habitual dninkard, and has been auoh for six months, or more, last past. That the said O. P. is aged about thirty years, and has a family, to wit : a wife and two children, who are dependent upon him and his property for support. That the said 0. P. is the owner of real estate situated in aforesaid, consisting of a small farm of about 80 acres, with dwelling-house, &c., thereon ; and also the owner of personal property, consisting of the usual stock, farming utensils, &c., necessary for the carrying on of said farm. That the said real estate is esti- mated to be worth about two thousand dollars ; but the same is incumbered by mortgage amounting to eight hundred dollars, and interest thereon for about one year. That the said personal property is believed to be worth about two hundred dollars. And your petitioners further show, that about one year ago the said 0. P. began the use of intoxicating drinks, and shortly thereafter became quite in- temperate ; and for the six months last past has been an habitual drunkard, CH. XVIII.] LUNATICS, HABITUAL DRUNKARDS, ETC. 531 and wholly incapable of the transaction of business ;• and is still in the same condition. And your petitioners further show, that in consequence of such habitual drunkenness, the said O. P. is rapidly spending his property, and is liable to be defrauded and plundered by others ; and that, if he is allowed to have the control and management of his property much longer, he will, as your pe- titioners believe, soon squander and be stripped of what now remains, and he and his family will become burdens to the town in which they reside ; which facts will more fully appear by the affidavits hereto annexed. Your petitioners, therefore, pray that a commission may issue to inquire into the fact of the habitual drunkenness of the said O. P., directed to such persons as to the court may seem proper. E. F. ) Overseers of [Verification as in No. 393.] 0. A. j the Poor. No. 398. OEDEE POK A OOMMISSIOIT. See ante, p. 1. [Title, as in No. 393.] At a special term, Sc. [as in No. 6]. On reading and filing the petition of H. E., of, <&c., dated the day of , 18 — , and the affidavits of E. T., of, cfcc, and G. A., of the same place, annexed to the said petition, and on motion of L. P. C, of counsel for the petitioner, it is ordered that a commission, in the nature of a writ de lunatico inquirendo, be issued out of and under the seal of this court, in the usual form, directed to L. F., counselor at law, J. M. F., physician, and J. A., gen- tleman, all of the county of , to inquire by a jury of the said county, and of the neighborhood where the said A. T. E. resides, of the lunacy of the said A. T. E. ; and that the sheriff of said county be instructed in said commission to summon such jury. And it is farther ordered, that the said commission be executed at, or at some convenient place near to, the residence of the said A. T. E. ; and that previous notice of the time and place of such execution be given to the said A. T. E.,.and to the person or persons having the care of him. And it is further ordered, that upon the execution of the said commission, the person or persons having the care or custody of the said A. T. E. do produce him before the said commissioners and jury, to be inspected and examined by them, whenever required to do so by such commissioners. 532 APPENDIX OF FORMS. [CH. XVIII. No. 399. COMMISSION TO INQUIRE OF LUNACY, ETC. See ante, p. T. The People of the State of New York, to L. F., J. M. F., and J. A., of the County of , greeting : Know ye, that we have assigned to you, or any two of yon, [l. s.] to inquire, by the oaths of good and lawful men of the county of • , by whom the truth of the matter may be the better known, whether A. T. E., of the town of , in said county, is a lunatic, or enjoys lucid intervals [or, is an idiot], so that he is not sufficient for the government of himself, or the management of his lands and tenements, goods and chat- tels [or, is incapable of conducting his own affairs in consequence of habit- ual drunkenness] ; and if so, from what time, after what manner, and how. And if the said A. T. K., being in that condition, has alienated any lands and tenements or not, and if so, what lands and tenements, to what person or liei'sons, when, where, after what manner, and how ; and what lands and tenements, goods and chattels, as yet remain to him ; and of what value the lands and tenements by him alienated, as well as those by hira retained, are, and how much the issues and profits thereof are worth by the year, and what is the value of his goods, chattels, and personal estate ; and who are the nearest heirs of the said A. T. R., who will be entitled to his estate in case of his death, and of what age. And therefore we command you, or any two of you, that at a certain day and place, or at certain days and places, which you for that purpose shall appoint, you diligently make inquisition in the premises ; and that you cause reasonable notice of the time and place by you appointed for that purpose, to be given to the said A. T. R. ; and that you send the inquisition which you shall thereupon make, under your seals, or the seals of any two of you, and the seals of those persons by whom it shall be made, distinctly and plainly, and without delay, to our Supreme Court [or other court], together with this writ. And by the tenor of these presents, we command the sheriff of the county of , that at a certain day and place, or at certain days and places, which you shall make known to him, he cause to come before you, or any two of you, so many and such good and lawful men of his bailiwick as you shall direct, by whom the truth of the matters aforesaid may be the better inquired into. Witness, E. H. R., one of the justices of said court, at , the day or , 18—. L. P. C., Attorney. N. B. M., Clerk. t Indorsed.] "By the Court," N. B. M., Clerk. CH. XVIII.] LUNATICS, HABITUAL DRUNKAEDS, ETC. 533 Return indorsed on Commission. The execution of this commission appears in the schedule hereunto an- nexed. Dated, Se. L. F. J J. M. F. > Commissioners. J. A. ) No. 400. PEEOEPT TO SHERIFF TO SUMMON A JURY. . See ante, p. 10. To the Sheriff of the County of . By virtue of a commission in the nature of a writ de lunatico inquirendo, issued out of and under the seal of the Supreme Court [or other court], bearing date the day of , 18 — , to us whose names are subscribed hereto directed, to inquire if A. T. R., of the town of , in the county of , be a lunatic or not. Tliese are therefore to require you to cause to come and appear before us twenty-four honest and lawful men of the county aforesaid, and of the neighborhood where the said A. T. R. resides, on the day of next, by ten o'clock in the forenoon of the same day, at the hotel kept by , in the village of [or, at the school-house in School District No. , in the town of , aforesaid], then and there upon their oaths to inquire of the lunacy of the said A. T. R. ; and of all such matters and things as shall be given them in charge by virtue of said commission. Hereof fail not at your peril. Given under our hands and sea,ls this day of , in the year of our Lord one thousand eight hundred and . [Signatures and seals of Commissioners.'] sheriff's EETUHsr [to be indorsed on precept]. The execution of this precept appears in the panel hereto annexed. H. R. C, Sheriff. SCHEDULE OF JURORS [to I>e annexed to return], Fames of the jurors summoned to inquire according to the tenor of the ■precept annexed. [Ifames of Jurors.] No. 401. NOTICE TO LUNATIC, ETC., OF EXECUTION OF COMMISSION. See ante, p. 11. [Title as in No. 393.] To A. T. R. Sir : Take notice, that a commission to inquire as to your lanacy [or, idiocy, or, habitual drunkenness], issued out of and under the 534 APPENDIX OF FORMS. [CH. XVIII. seal of tlie Supreme Court [or other court\ and directed to the undersigned, as commissioners, will be executed at the hotel kept by , in the village of [or, at the school-house in School District No. , in the town of aforesaid], on the day of instant, at 10 o'clock a. m. Dated, &e. [Signatures of Commissioners.'] No. 402. AFFIDAVIT OF SEEVIOE OF NOTICE. See ante, p. H. [Title as in No. 393.] County of , ss. : H. S., of , in said county, being duly sworn, says : That on the day of , 18 — , he served on A. T. E., of, Sc., a copy of the annexed [or, above] notice, by delivering the same to, and leaving the same with, the said A. T. E., at the town of aforesaid. And he further says, that he knew the person so named to be the person men- tioned and described in the said notice. Sworn, &c. H. S. No. 403. NOTICE TO PEODT70E LUNATIC, ETC. See ante, p. 11. [Title as in No. 893.] To S. E., and to all others having in their custody or power the above- named A. T. E. The undersigned, by virtue of a commission issued out of the Supreme Court [or otTier court], to inquire as to the lunacy [or, idiocy, or, habitual drunkenness] of A. T. E., of, &c., dated the day of , 18 — , do hereby require you to produce before us the said A. T. R., at the execution of said commission, at the hotel kept by , in the village of [or, at the school-house, in School District No. , in the town of aforesaid], on the day of , 18 — , at ten o'clock in the forenoon, there to be ex- amined and inspected by us ; and you are to give him notice accordingly. Given under our hands and seals, this day of , 18 — . [Signed and sealed iy Commissioners.] No. 404. SUBPOBNA FOE WITNESSES. See ante, p. 10. By virtue of a commission issued out of and under the seal of the Su- preme Court of the State of New York W other court], dated the day en. XVIII.J LUNATICS, HABITUAL DRUNKARDS, ETO. 535 of , 18 — , and directed to the undersigned, to inquire whether A. T. E., of the town of , in the county of , be a lunatic [or, idiot, or, an liabitual di-unkai-d], or not ; we, the undersigned, do hereby require yovi and each of you, personally, to be and appear before us at the execution ol the said commission, at the hotel kept by , in the village of , in said county [or, at the school-house in School District No. , in said town], on the day of- inst., at ten o'clock in the forenoon, then and there to testify those things which you, or either of you, know, touching the lunacy [or, idiocy, or, habitual drunkenness] of the said A. T. E. ; and all such other matters as shall be demanded of you by virtue of the said commission. Hereof fail not at your peril. G-iven under our hands and seals the day of — ■ — , 18 — . [Signatures and Seals of Commissioners.'} To S. R., B. E., and O. P. G., &c. No. 405. OATH TO JUKOES. See ante, p. 11. You do swear [or, affirm] well and truly to inquire touching the lunacy [or, idiocy, or, habitual drunkenness] of A. T. E., and of all such matters and things as shall be given you in charge by virtue of a commission issued out of and under the seal of the Supreme Court [or other court], and now here to be executed, and a true inquisition make according to evidence. No. 406. OATH OF WITNESSES. See ante, p. 11. You do swear [or, affirm], that the evidence you shall give touching the lunacy [or. idiocy, or, habitual drunkenness] of A. T. E., and as to who are his next of kin, and the nature, extent, and value of his real and personal estate, and all such other matters and things as shall be required of you, by virtue of a commission issued out of the Supreme Court [or other court}, to inquire into the said lunacy [or, idiocy, Ac.\ and now here to be executed, shall be the truth, the whole truth, and nothing but the truth. 536 APPENDIX OF FORMS. [CH. XVIII. No. 407. rNQtflSITION. See ante, p. 12. An inquisition, taken at the tiotel kept by , in the village of , in the county of [or, at the school-house, in School District No. — , in the town of ], on tlie day of , in the year one thousand eight hundred and , before L. F., J. A., and J. M. F., commissioners appointed by virtue of a commission in the nature of a writ de lunatico [or, idiota] in- quirendo, issued out of and under the seal of the Supreme Court of the State of New York \or other court], dated on the day of , 18 — , directed to the said commissioners, to inquire, among other things, of the lunacy of A. T. R., upon the oaths of J. S. M., &c. [insert the names of the jurors], good and lawful men of the said county, who, being summoned, sworn, and charged, upon their oaths, say, that the said A. T. E., at the time of taking this inqui- sition, is a lunatic, and of unsound mind, and does not enjoy lucid intervals, so that he is incapable of the government of himself, or of the management of his lands, tenements, goods and chattels ; and that he has been in the same state of lunacy for the space of two years last past. That the said A. T. R. has occasionally, for many years past, been afflicted witli mental alienation ; but what occasioned such mental alienation, or his present lunacy, the jurors aforesaid have no information, and know not. And the jurors aforesaid, upon their oaths aforesaid, further say, that whether the said A. T. R,, being in that state, has alienated any lands and tenements, or not, the jurors aforesaid know not [or, that the said A. T. R., being in the condition aforesaid, did, on or about the day of , 18 — , at the village of , in said county, convey, by warrantee deed, to one A. 0. R., of, &c., a certain lot owned by him in the village of , in said county, for the nominal consideration of dollars ; and the money actu- ally received by the said A. T. E., upon the sale of said lot, was only the sum of dollars, being not one-fifth of the actual value of said lot]. And the jurors aforesaid, upon their oaths aforesaid, do further say that the following lands and tenements, situated in the town of aforesaid, yet rem ain to him, the said A. T. E., to wit : [describe real estate]. That the said lands and tenements, above described, are worth about dollars; and the issues and profits thereof, by the year, are worth about the sum of dollars. And the jurors aforesaid, upon their oaths aforesaid, do further say that the following goods and chattels yet remain to the said A. T. R., to wit : [gim general description of the personal properly]. That the value of the said goods and chattels, of the said A. T. E., is about the sum of dollars. And the jurors aforesaid, upon their oaths aforesaid, do further say : That S. R. i;i the wife of the said A. T. R., and resides with him in — — aforesaid. That N. R., H. E., R. R., and J. R., are the children of the said A. T. E., aU of whom, except the said N. E., reside with said lunatic in aforesaid. That the said N. E. resides in , in the State of , and is aged about CH. XVIII.J LUKATICS, HABITUAL DRUNKARDS, ETC. 537 30 years. That the said H. E. is aged about 26 years ; the said E. E. is aged about 24 years ; and the said J. E. is aged about 21 years ; and that the said children will be entitled to the estate of the said A. T. E. in equal propor- tions, in case of his death. In witness whereof, as well the said commissioners, as the jurors afore- said, have to this inquisition set their hands and seals, the day and year first above written. [Signatures and Seals of Commissioners.] [Signatures and Seals of Jurors.] No. 408. NOTICB OF MOTION TO CONFIRM FINDING OF JUET. See ante, p. 15. [Title as in JSTo. 393.] Sir : — Take notice, that I shall apply to the next term of this court, to be held at the Court House, in , in and for the county of , on the day of next [or, instant], at the opening of the court on that day, or as soon thereafter as counsel can be heard, for a rule or order confirming the finding of the jury upon the oominifision heretofore issued in the above matter. Also take notice, that I shall, at the same time and place, apply for the appointment of a committee of the person and estate of said A. T. E. ; or for such other or further order or relief as the court may think proper to grant; which motions will be founded on the said commission and the return thereto, and the inquisition taken under such commission ; together with the petition, with a copy of which you are herewith served. Dated, &c. Yours, &c., L. P. C, Att'y for Petitioner. To A. T. E. above named [or, to 0. E. I., Att'y for said A. T. E.] No. 409. PETITION FOE APPOINTMENT OP COMMITTEE. See ante, pp. 16, 11. [Title, &c., as in No. 898.] The petition of H. E., of the town of , in the county of , respect- fully shows : That the commission heretofore issued out of this court, in pur- suance of an order made on the day of , 18 — , directed to L. F., J. A., and J. M. F., to inquire of the lunacy [or, idiocy, or, habituSEt drunken- ness] of A. T. E., of the town of aforesaid, who is the father, of your petitioner, has been duly executed and returned by the commissioners, and filed in the oflSce of the clerk of this court. That from the inquisition annexed 538 APPENDIX OF FORMS. [CH. XVIII. to the said commission, and returned therewith, it appears that the jury have found the said A. T. R. is a lunatic and of unsound mind [or, that the said A. T. R. is an idiot], so that he is incapable of the government of himself or the management of his lands, goods, and chattels, as by reference to said inquisi- tion wOl more fully appear. Tour petitioner therefore prays : That he may be appointed the committee of the person and estate of the said A. T. R., upon his giving security for the faithful performance of his trust as such committee, according to the statute, and in conformity with the rules and practice of the court [or, That a referee may be appointed to inquire and report who is a suitable and proper person to be appointed committee of the person and estate of the said A. T. R., and to approve of the bond and sureties offered by him]. And for such other or further order as the court may think proper to grant. [ Verification as in No. 393.] H. R. CONSENT ANNEXED. [Title as in Sfo. 393.] We, S. R., wife of A. T. R. above named, and R. R. and J. R., of, &c., children of the said A. T. R., do hereby consent that H. R., of, &c., be ap- pointed committee of the person and estate of said A. T. R. And we do hereby request the said court to appoint said H. R. as such committee. Dated, &c., [Signatures.] [Acknowledged or proved in usual form. See No. 44.] No. 410. OEDBE 00NFIEMIN& FINDIN& OF JUET, APPOINTING COMMITTEE, ETC. See ante, p. 11. At a special term, &c. [as in No. 6], In Sitpeeme Ootjet [or other court] : In the matter of A. T. R., a lunatic. On reading and filing the inquisition in the above matter, taken under a commission issued out of the Supreme Court [or other court], from which it appears that the jury have found the said A. T. R.is a lunatic, and of unsound mind [or, that the said A. T. R. is an idiot], so that he is incapable of the government of himself, or of the management of his lands, tenements, goods, and chattels; and from which it also appears that the said A. T. R. is possessed of certain real and personal estate in the said inquisition described. Now, on motion of L. P. 0., attorney for H, R., and on hearing 0. R. I., in behalf of said A. T. R., it is ordered that the finding of the jury upon the execution CH. XVlIlJ LUNATICS, HABITUAL DEUNKAEDS, ETC. 539 of the said commission, as set forth in said inquisition, be, and the same is hereby, confirmed. And on reading and filing the petition of H. E., a son of said lunatic, dated the day of , 18 — , praying for the appointment of a committee of the person and estate of said A. T. E. [and the consent of 8. E. and E. E. and J. E., the wife and two of the children of said A. T. E., that said H. R. be ap- pointed such committee], it is, on like motion, ordered, (*) that the said H. E. be, and he is hereby, appointed the committee of the person and estate of the said A. T. E., upon his filing with the clerk of this court a bond with two sufficient sureties, to be approved of hy a justice [or, judge] of this court, in the penalty of — - — dollars, and conditioned for the faithful performance of his trust as such committee, according to the statute and the mles and prac- tice of the court, and to account, whenever required, in conformity with such rules and practice. [If a reference is ordered to inquire as to the proper person to be appointed committee, &c., then from the (*) above, proceed as follows : That it be re- ferred to O. F. T., Esq., residing at , in the county of , to inquire and report who- is a suitable and proper person to be appointed committee of the person and estate of the said A. T. E., and also to inquire and report as to the form and penalty of the bond to be given by such committee, and the sufficiency of the sureties oifered by him. And it is further ordered, that the referee cause days' notice in writing to be served upon S. E. and R. E. and J. E., the wife and two of the children of the said A. T. E., residing in this State, of the time and place of executing the said reference ; and that the said referee report hereon with all convenient speed.] No. 411. eefeeee's eepokt as to committee. See ante, p. If. [Title as in No. 410.] To the Supreme Court of the State of New York [or. To the County Court of the County of ; or. To the Court of Common Pleas of the City and County of New York]. The undersigned, to whom it was referred, by an order of this court, dated the day of , 18 — , to inquire and report who is a suitable and proper person to be appointed committee of the person and estate of A. T. R. above named ; and as to the form and penalty of the bond to be given by such com- mittee, and the sufficiency of the sureties offered by him, do respectfully report : That before entering upon the execution of said order, I caused days' notice, in writing, to be given to S. JR. and R. R. and J. R., the wife and two of the children of the said lunatic, of the time and place of executing the same, to wit : on the day of , 18—, at ten o'clock a. m., at my office in the village of . That, at the time and place last aforesaid, I proceeded 540 APPENDIX OF FORMS. [CH. XVIII. to execute the said order of reference, in the presence of L. P. 0., Esq., at- torney for the petitioner, and R. E. and J. E. above named. That after hearing the parties present, and making the necessary inquiries, I am of opinion that H. R., of the town of aforesaid a son of said lunatic, is a suitable and proper person to be appointed the committee of the person and estate of the said lunatic. And I further certify and report that, in the opinion of the undersigned, the said H. R. should, before entering upon the said trust, execute and file with the clerk of this court his bond, in the penalty of dollars, being double the value of the property of the said A. T. E., as found by the inqui- sition of the jury, conditioned for the faithful performance of his trust as such committee, according to the statute, and to account, whenever required, in conformity with the rules and practice of this court. That the said H. R. proposed as his sureties W. T. F. and J. G. E., of, (fee. ; and having taken from each of them an affidavit as to his sufficiency, and made inquiries rela- tive thereto, I am satisfied that the sureties so proposed are sufficient ; each being worth the sum of dollars, over and above all debts and responsi- bilities he owes or has incurred. I further certify and report that I have indorsed upon the bond of the said H. E., signed by him and his sureties aforesaid, in the penalty aforesaid, and conditioned as aforesaid, my approval of its form and manner of execu- tion. All which is respectfully submitted. Dated, Sc. , O. F. T., Referee. No. 412. ORDBE OONPIEMINa KBFEEKb'b EBPOET. See ante, p. 17. [Title as in No. 410.] At a special term, &c. [as in No. 6]. On reading and filing the report of O. F. T., referee, dated the day of , 18 — , made in pursuance of an order of this court, dated the day of , 18 — ; and on motion of L. P. 0., attorney for the petitioner in this matter, no one appearing in opposition thereto, it is ordered, that the said report be, and the same is hereby, confirmed. And it is further ordered, that H. R., of, &c., be, and ie is hereby, ap- pointed the committee of the person and estate of the said A. T. R., upon his executing and filing with the clerk of this court the bond mentioned in said report, to wit, the bond of the said H. R., in the penalty of dollars, signed by W. T. F. and J. G. R., of, &c., as sureties, duly acknowledged, &c., according to the rules of the court, and conditioned for the faithful perform- ance, on the part of the said H. R., of the trust reposed in him as such committee, according to the statute, and that he will account, whenever re- quired, in conformity with the rules and practice of this court. And it is further ordered, that upon the filing of such bond, a commis- sion may be issued to such committee, under the seal of this court. CH. XVin.] LUNATICS, HABITUAL DEUNKAEDS, ETC. 541 No. 413. BOND OF COMMITTBB. See ante, p. IT. Know all men by these presents, That we, H. E., of the town of , in the county of , and W. T. F. and J. G. E., of the same place, are held and firmly bound unto N. B. M., clerk of the county of , and to his suc- cessor or successors in ofiioe, in the penal sum of dollars, to be paid to the said clerk, or to his successors aforesaid, for which payment well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , 18—. (*) Whereas, by an order of the Supreme Oourt [or other court], dated the day of , 18 — , the said H. E. was appointed committee of the person and estate of A. T. E., of, Sc, who, by an inquisition taken under a com- mission issued out of said court, had previously thereto been found to be a lunatic, upon his giving the bond required by the said order. Now, therefore, the condition of this obligation is such, that if the above- bounden H. E. shall faithfully perform the trust reposed in him as such com- mittee, according to the statute, and shall render an account Whenever required, in conformity with the rules and practice of the said court, and shall observe the orders and directions of the said oourt in relation to such trust, then this obligation to be void, otherwise to remain in full force and virtue. H. E. [L. s.] Signed and sealed "W. T. F. [l. s.] in the presence of A. B. J- G-. E. [l. s.] {AeknowledgTmnt or proof, and Affidmit of Sureties, as in -STo. 44.] No. 414. PETITION FOE LEAVE TO TEAVBEBB, OE FOB AN ISSUE. See ante, pp. 18 to 20. In Supeemb Ooitet [or other court} : ] In the matter of E. H., an alleged lunatic. i To the Supreme Court of the State of New York [or other court] : The petition of E. H., of, &e., respectfully shows. That on the day of last, at the city of New York, a notice was delivered to him, setting forth that a commission, to inquire as to his lunacy, issued out of this court, and directed to J. B., H. B., and W. A., as commissioners, would be exe- 542 APPENDIX OF FORMS. [CH. XVIII. cuted at the house kept by L. E., in the town of aforesaid, on the — day of , 18 — , at 10 o'clock a. m. That your petitioner was then resid- ing with his friends and relatives at the city of New York, which is distant more than two hundred miles from the place where the said commission was to be executed. That he proceeded at once to make preparation to leave that city for the purpose of attending the execution of said commission. That although he used every effortto arrive in said town of , where said commission was to be executed, prior to the said day of , 18 — , yet he did not arrive there until about 9 o'clock a. m. of that day ; too late to enable him to procure the attendance of several witnesses residing in the vicinity of tijat place, and who were material and necessary witnesses for your petitioner on the execution of said commission, as he verily believes. That tlie execution of said commission was proceeded with, by said com- missioners, at the time and place aforesaid. That immediately prior thereto, your petitioner applied to them for' a postponement thereof, to enable your petitioner to obtain the testimony of the said witnesses ; and made afHdavit before said commissioners to the materiality of said witnesses, and that he could not safely proceed to the trial of the question of your petitioner's lunacy without the benefit of their testimony • but the said commissioners refused to postpone said trial. That the said trial then proceeded as follows : D. H. was called as a witness for the prosecution, and testified as follows : \state the evidence, and proceed in same form as to other witnesses]. After the testimony was closed, the matter was submitted to the jury, under the charge of one of the commissioners, twelve of whom found an inquisition that your petitioner was a lunatic, and incapable of the govern- ment of himself, or the management of his affairs, as by reference to said inquisition will more fully appear. That four of said jurors dissented from the inquisition so found, and were in favor of finding your petitioner of sound mind and memory, as your petitioner is informed and believes. And your petitioner further shows, that upon the execution of said com- mission before the jury and commissioners, and in and about the house when and where the said trial was had, one J. 0. F., upon whose petition the said commission of lunacy was issued, pursued an insulting and irritating course toward your petitioner, telling your petitioner he lied, and using other un- Ijecoming, provoking, and insulting expressions ; and your petitioner says, that the anger exhibited by him under the influence of such conduct was contrasted with his usual ma er, and urged, and, as your petitioner believes, taken, as evidence of h ins mity. And your petitioner further shows, that D. H., of, c6c., who is a son of your petitioner, since the execution of the said commission, as your petitioner is informed and believes, has been appointed committee of the person and • estate of vour petitioner, and, as such, has taken possession and assumed the control of the whole real and personal estate of your petitioner. That the value of said property is about the sum of dollars. And your petitioner further shows, that he is of sound mind, and entirely competent to manage his own aflFairs and business (as appears by the affidavits OH. XVIII.j LUNATICS, HABITUAL DEUNKAEDS, ETC. 543 hereto annexed), and which your petitioner can fnlly establish by numerous individuals, physicians and others. Tour petitioner therefore prays that an order may he granted, allowing your petitioner to traverse the said inquisition, or that an issue may be awarded to try the fact of the lunacy of your petitioner, and whether he is incapable of the government of himself, or the management of his affairs ; and also that your petitioner be allowed out of his estate a reasonable sum to defray the costs and expenses of trying said issue, and the costs of this application, and for such other or further relief as the court may think proper to grant. M. F., Attorney for Petitioner. E. H. [Verification as in Wo. 393, to the end tliereof., and then continue as follows:] And I further certify that I have examined the said B. H., for the purpose of ascertaining the state of his mind, and whether he is capable of under- standing the nature or object of said petition ; and that he is apparently of sound mind, and capable of understanding the same. [If the alleged lunatic is blind, the officer should further certify as follows: And I further certify that, before the said petition was sworn to by said E. H., the same was carefully and correctly read over to him in my presence.] "W. B. B., Justice of the Peace. No. 416. AFFIDAVITS ON APPLICATION FOE AN ISSUE. See ante, pp. 19, 20. [Title as in Nb. 414.] City and County of New York, ss. : W. G., of said city, being duly sworn, says: That he is acquainted with E. H. above-named. That he saw said H. frequently during 1?he two months next previous to the execution of the com- mission in the above matter, during the most of which time, said H. boarded with deponent. That deponent has never seen anything in the conduct or language of said H., that induced him to believe he was insane. And depo- nent believes said H. is not insane ; but of sound mind and memory, and fully competent for the management of himself and his property. Swoi-n, &c. W. G. [Title as in No. 414.] County of , ss. : T. W., of, i&c, being duly sworn, says : That he is a practicing physician and surgeon, and has been, for twenty-five years last past. That he is acquainted with E. H., of , in said county. That he has had a personal interview with the said E. H. this day; and that, in the judgment of this deponent, the said H. is not a lunatic or an insane person. That deponent has frequently seen the said H., when it was said he was a lu- natic ; but this deponent could never discover that said H. was a lunatic or an insane person, and believes he is not, and has not been. Sworn, &e. T. W. 544 APPENDIX OF FOEMS. [OH. VIII. [Title as in No. 414.] County of , ss. : J. B., being duly sworn, says : He is a practicing physician and surgeon, and resides at , in said county. That deponent has been acquainted with E. H., of, «fcc., for more than twenty years last past, and for the last two years has been his family physician. That deponent has seen much of said H. within the last year or more, and has conversed with him frequently during that time. That deponent has always believed said H. was a man of sound mind and understanding. That deponent has seen and conversed with said H. within the last week, and deponent still believes said H. is of sound mind and memory, and fully competent to manage himself and his property. Sworn, &e. 3. B. No. 417. NOTICE OF MOTION FOE LEAVE TO TEAVBESB, ETC. See ante, pp. 18 to 20. [Title as in No. 414:.] Sir : — You will take notice that I intend to move this court, at the next special term thereof, to be held at the Court House in , in and for the county of , on the day of instant, at o'clock a. m., or as soon thereafter as counsel can be l>eard, for an order that [the commission and return thereon, and the inquisition, and all subsequent or other proceed- ings in this matter, be set aside for irregularity, with costs to be paid by J. C. F., on whose petition said proceedings were had, and in case the said proceed- ings shall not be set aside that] E. H. above named, have leave to traverse the inquisition in this matter, or that an issue be awarded to try the fact of the lunacy of said H. and whether he is capable of the government of him- self or the management of his affairs, and that said H. be allowed, out of his estate, a reasonable sum to defray the costs and expenses of trying said issue, and the costs of this application. And for such other or further relief as the court may think proper to grant ; which motion will be founded upon the inquisition in this matter, and upon the petition and affidavits, with copies of which you are herewith served. Dated, &c. Tours, &c. To D. H., Committee. M. F., Attorney for Petitioner. No. 418.. OEDEE DIEECTINa AN ISSUE. See ante, p. 20. [Title as m No. 414.] At a special term, &c. [as in No. 6]. On reading and filing the petition of E. H. above named, dated the day of , 18 — , praying for an order directing an issue to try the question CE. XVIII.] LUNATICS, HABITUAL DEUNEABDS, ETC. 545 whether the said E. H. is a lunatic, and incompetent for the government of himself or the management of his estate; and on reading and filing the affi- davits of W. Gr. and others, in support of said petition ; it is, on motion of M. F., attorney for said petitioner, after hearing J. 0. B., in behalf of the com- mittee of the said E. H., ordered, that an issue he made up and settled to try the question, whether E. H. above named be a lunatic, and mentally incapa- ble of the goveniment of himself, or the management of his affairs ; and that the said issue be tried at the next circuit to be held in and for the county of — — [or, at the term of this court commencing on the day of next]. And it is further ordered, that the attorney for said E. H. in the first instance prepare the issue, and submit it to the attorney of the said com- mittee and that if they cannot agree as to the form, &c., that application be made to the court; and that if the attorney for said E. H. shall omit to prepare such issue, and to serve the same on the attorney for the said com- mittee, within twenty days after service of a copy of this order, then the order for an issue shall be deemed discharged. And it is further ordered that the said committee pay to the attorney of said E. H. the sum of dollars ; and also pay to said E. H., or to his attorney, such further reasonable sums as shall be requisite to procure the attendance of witnesses upon the trial of said issue, and for the employment of proper counsel before the court and jury. No. 419. PETITION TO SUPERSEDE COMMISSION. See ante, p. 23. [Title as in M. 410.] The petition of E. H., of, Sc, respectfully shows : That your petitioner has been adjudged a lunatic and incompetent to manage his own affairs and property, by virtue of an inquisition of lunacy heretofore ordered by this court. That the property, real and personal, of your petitioner, has been placed in the care and custody of D. H., of, Se., who was appointed the committee of the person and estate of your peti- tioner; and the said D. H. is still such committee. And your petitioner further shows, that he is now of sound mind and understanding, and entirely competent to manage his own affairs and busi- ness, as appears by the aflSdavits hereto annexed, and which your petitioner can fully establish by numerous individuals, physicians and others. Your petitioner therefore prays, that he may be at liberty to attend in open court, or before a referee, for the purpose of being examined as to his sanity of mind, and his competency to manage himself and his property ; and that the said commission and inquisition, and proceedings therein, may be superseded forthwith ; and that a supersedeas may issue for that purpose, and that a referee may be appointed to take and state the account of said committee ; or for such other or further order as may be proper. [ Verification as in No. 414.] E. H. Vol. XL— 35 546 APPENDIX OF FOEMS. [CH. XVIIL AFFIDAVIT ANNEXED. [Title as in No. 410.] County of , ss. : 0. P. G., of , in said county, being duly sworn, says : That he is now, and has been for the last twenty-five years, a prac- ticing physician and surgeon ; that he is well acquainted with E. H., of, &c. ; and has been for the last few weeks in a situation to see him and converse with hira almost daily ; that deponent verily believes that the said H. is now perfectly sane and of sound mind, and competent in every respect to manage his own affairs and business. And deponent further says, that he believes the said H. has been of sound mind and competent to manage his own affairs for several weeks last past. O. P. 6. Sworn, «6c. No. 420. NOTIOB OF MOTION TO SUPEKSEDE COMMISSION. See ante, p. 23. [Title as in No. 410.] Sib : Take notice th^t a petition and affidavits, with copies whereof yon are herewith served, will be presented to the Supreme Court [or other court] at the next special term thereof, to be held at the Court House, in , on the day of instant, at the opening of the court on that day, or as soon thereafter as counsel can be heard ; and that, upon reading and filing the same, a motion will be made that the prayer of" said petition be granted ; or for such other or farther order as the court may think proper to grant. Dated, dc. Yours, &c., B. F. A., Attorney for Petitioner. To D. H., Committee, &c. No. 431. OEDKR TO SUPERSEDE COMMISSION. See ante, p. 23. [Title as in No. 410.] At a special term, &e. [as in No. 6]. On reading and filing the petition of E. H. above named, dated the day of , 18 — , praying that the commission, inquisition, &c., in the above matter, may be superseded ; and also, on reading and filing the affi- davits of 0. P. C, R. D. S., and R. T. F., in support of said petition, and upon examining the said E. H., in open court, as to his sanity of mind and competency of understanding, — it is, on motion of Mr. A., attorney for said E. H., no one appearing in opposition thereto, ordered, that the commission of lunacy issued against the said E. H., and the inquisition taken thereon, be, and the same is hereby, superseded and determined. [Or, that the com- mission of lunacy issued against the said E. H. be, and the same is hereby, suspended until the further order of this court.] CH. XVIU.] LUNATICS, HABITUAL DRUNKARDS, ETC. 547 No. 422. OBDEB OF BEFBEENOB ON MOTION TO SUPBESEDB COMMISSION. See ante, p. 23. [Title as in No. 410.] At a special term, dbc. [aa in No. 6]. On reading and filing the petition of E. H. above named, dated the day of , 18 — , praying for an order that the commission in this matter be superseded, and on reading and filing sundry aflidavits in support of said petition, and notice of motion ; and on motion of Mr. A., attorney for the petitioner, after hearing Mr. W., of counsel for the committee, it is ordered that it be referred to J. M., Esq., residing in the county of , to inquire and report whether the said E. H. is of sound mind and memory, and capable of the government of himself and the management of his affairs ; and whether the commission heretofore issued against the said E. H. as a lunatic, may with propriety be superseded, and the said E. H. be restored to his personal liberty and the management of his property ; that the said referee cause notice to be given of the time and place for conducting his examination, to the said E. H., and to D. H., committee of the person and estate of the said E. H. ; that the said referee be at- liberty to examine wit- nesses under oath ; and also personally to examine the said E. H., if he shall deem it advisable so to do ; and that the said referee report his opinion, formed from the said testimony and personal interview, with all convenient speed. No. 423. eefbeeb's eepoet theeeon. See ante, p. 23. [Title m in No. 410.] To the Supreme Court of the State of New York [or other court'] : In pursuance of an order of the Supreme Court [or other court], made in the above-entitled matter, dated the day of -, 18 — , by which it was referred to J. M., residing in the county of , to inquire and report whether, &c. [set out the substance of the order], I, the said referee, do report : That I have been attended by the said E. H. and his attorney, and by D. H., the committee of the person and estate of the said E. H., after due ser- vice upon them of the notice required to be given to them, as aforesaid, for thafrpurpose ; and, after taking proofs by the examination of witnesses pro- duced before me, and also after a personal examination of the said E. H., I, the said referee, am satisfied that the said E. H. is of sound mind and memory, and capable of the control of himself and the management of his, affairs. And I do further report, that the commission heretofore issued against the 548 APPENDIX OF FORMS. [CH. XVIII. said E. H., as a lunatic, may with propriety be superseded, and the said E. H. restored to his personal liberty and the management of his property [or, may with propriety be suspended until the further order of the court]. yi which is respectfully submitted. Dated, Sc. 3. M., Referee. No. 424. OEDEE SUPERSEDING COMMISSION ON EEFEEEB's EKPOET. See ante, p. 23. [Title as in No. 410.] At a special term, resence,] H, F., Justice of the Peace.' CH. XVIIl.] LUNATICS, HABITUAL DEUNKAEDS, ETC. 549 No. 426. PETITION FOB OKDER DIRKOTING PAYMENT OF CLAIM OUT OF LTJNATXO'S ESTATE. See ante, p. 26. In Supseme Oocet [or other court] : In the matter of the application of E. M. F. To the Supreme Oonrt of the State of New York [or other court] : The petition of E. M. F., of, &c., respectfully shows : That E. H., of, <6e., is justly indebted to your petitioner in the sum of dollars, with interest thereon from the day of , 18 — , for goods, wares, and merchandise furnished to him at his request, during the years 1856 and 1857. That an account of the goods, &c., so furnished, as aforesaid, is hereto annexed, marked schedule "A."' That the items mentioned in said account are in all respects correct ; that the goods, wares, and merchandise there charged were in fact delivered to the said E. H. at the times stated in said account, and that no part of said account has been paid or satisfied [except the sum of dpllars, which is credited therein]. And your petitioner further shows, that the said E. H. is also indebted to your petitioner in the further sum of dollars, with interest thereon from the day of , 18 — , for the services and disbursements of your peti- tioner, mentioned in the account hereto annexed, marked schedule "B." That the items in said account, last aforesaid, are in all respects correct ; that such services and disbursements have in fact been rendered or made, ^nd that no part of said account has been paid or satisfied [except the sum of dol- lars, stated therein]. And your petitioner further shows, that he is informed and believes that the said 'E. H. has been declared a lunatic by the Supreme Court [or other court], and that D. H., residing at , in said county, is now the committee if his person and estate; and that he has been such committee for several months last past. Your petitioner further shows, that he has duly presented the said accounts [or, has caused the said accounts to be duly presented] to the said committee, for payment ; but the said committee declined [or, refused, or, has neglected] to pay the same, or any part thereof; and the sum of dollars, with interest as aforesaid, is now justly due thereon to your petitioner. Your petitioner therefore_ prays, that an order may be entered directing the said committee to pay to your petitioner the amount of his accounts afore- said [or the balance due thereon], to wit : the sum of dollars, with in- terest thereon from the day of , 18—; or that a reference may be ordered to pass upon the said accounts ; or that your petitioner may have 550 APPENDIX OF FORMS. [CH. XVIII.- leave to bring, an action against the said committee to establish and adjust the said accounts, and the amount due him upon the same ; or for such other or further order as the court may think proper to make. K. M. F. A. N. W., Att'y for Petitioner. [ Verijieation as in No. 393.] Schedule ".4," referred to in the annexed petition. Schedule "5," re/erred to in the annexed petition. No. 427. NOTICE OF MOTION TO COMPEL PAYMENT OF OL&IM. See ante, p. 26. [Title as in last form.] SiE : Take notice, that I shall apply to the next special term of the Supreme Court [or other court], to be held at the Court House in , on the day of next, at the opening of the court on that day, or as soon thereaf- ter as counsel can be heard, for an order that the prayer of the petition hereto annexed be granted with costs, to be paid out of the estate of E. H., a luna- tic, or for such other or further order as the court may think proper to grant ; which motion will be founded upon the said petition, with a copy of which you are herewith served. Yours, &o.. Dated, tfic. A. N. W., Att'y for Petitioner. To D. H., Committee of E. H., a lunatic. No. 428. OBDSy THEEECTON See ante, p. 26. [Title as in No. 426.] At a special term, &c. [as in No. 6]. [Title, also, as in No. 410.] On reading and filing the petition of R. M. F., of, c6c., dated the day of , 18 — , praying for an order requiring D. H., committee of the person and estate of the above-named lunatic, to pay the accounts and demands stated in said petition, &c. ; and, after hearing A. N. W., Esq., attorney for the petitioner, and TJ. G. P., Esq., counsel for the said committee, it is ordered, (*) that the committee of the estate of E. H. above named pay' to the said peti- tioner, or to his attorney, within days from the service of a copy of this order upon him, the amount of the said petitioner's claims, mentioned in said petition, and which are here adjusted at the sum of dollars, and interest thereon from the day of , 18 — . And it is further ordered, that the said committee pay to the attorney for the said petitioner ten dollars costs of this application. [Or, from the asterisk, (*) proceed as follows: that it be referred to L. F., Esq., residing in the county of , to pass upon and adjust CH. XVIII.] LUNATICS, HABITUAL DRUNKARDS, ETC. 551 the several accounts and demands of the said petitioner mentioned in the said petition, and to determine the amount justly due the said petitioner thereon; and that the said referee make his report to the court with all convenient speed. [ Cr, that K. M. F., above named, have leave to bring an action in the Supreme Court [or other court] against D. H., the committee of said lunatic, for the purpose of establishing and adjusting the claims and accounts men- tioned in said petition, and the amount due thereon, if anything, to the said petitioner. And that the said petitioner, if he shall think proper so to do may join the said E. H., as a party defendant in said action.] No. 429. ANITOAL INVENTOEZ AND ACOOTTNT CTJEKENT, TO BE EENDEEED BY COMMITTEE. See ante, p. 30; and see, also. Oh. Court Rules, 1844, p. 169 ; and Rules of S. C. iu Eq. 1847, p. 102. [Title as in No. 410.] Inventoet. A just and true inventory of the real and personal estate and effects of the above-named lunatic [or other person], on the 31st December, 1865. (a) 1865, Dec. 31. Balance of cash on hand this day .... $16 74 Robert Gay's bond and mortgage on real estate, which is well secured, with interest at 7 per cent., from 31st December, 1865 ....... 350 00 [Proceed in lihe manner in respect to other items.] D. H., Committee. AOOOUKT OUEEENT. The estate of A. B., a lunatic. To D. H., Committee. 1865. Dr. May 2. To cash paid M. Low's bill for board and lodging, &c. . . $27 33 Jnne 4. Dr. Jones's bill for medical attendance . . . 9 17 [Proceed in liJce manner with other items.] OONTEA. 1865. Or. Jan. 1. Balance due as by last annual accoant . . $27 32 Feb. 2. Cash received, one quarter's rent on dwelling-house in Ftica . . . . ^ . . . 45 00 [Continue with the items as before, and foot up the columns, so as to show balance due to the estate, if any.] Dated, &c. D. H., Committee. (a) The original, or first, inventory filed should also contain a list of the debts existing airainst the lunatic, so far as the sarae can be ascertained by the committee, with the names of the creditors, and the nature of the indebtedness. See 'i Bev. Stat. 53, eec, 8 ; cmte, p. 80. 552 APPENDIX OF FORMS. [CH. XVIII. County of , ss. : D. H., the committee of the above-named lunatic, being duly sworn, says: That the above is' a just and true inventory of the whole real and personal- estate and effects of the above-named lunatic, so far as the same have come to his knowledge, and a just and true account of all the receipts and disbursements on account of the said estate [since this de- ponent rendered his last account current in this matter to this court]. [I71 the first account, the words between the brackets are to le omitted.'] Sworn, <&c. D. H. No. 430. PETITION FOE A SALE OF HEAL ESTATE TO PAT DEBTS. (») See ante, pp. 2,1, 39. [Title as in No. 410.] To the Supreme Court of the State of New York [or other court] : The petition of H. E., of, &c., respectfully shows : That he is the com- mittee of the person and estate of A. T. E. above named ; and was appointed such committee by an order of this court, dated the day of , 18 — . That, after his appointment as such committee, he duly made out and veriiied an inventory of the real and personal estate of the said A. T. E., and in such inventory stated the value thereof, and the amount of the rents and profits of the said real estate, and the debts owing by the said lunatic, and the credits and effects belonging to the said estate, a copy of which inventory is hereto annexed, marked Schedule ''A." And your petitioner further shows, that the said A. T. E. is the owner of the following real estate situated in the town of , in said county, and bounded and described as follows : [insert description]. That the said real estate is worth about the sum of — — dollars, and the issues and profits there- of by the year are worth about the sum of dollars ; and the actual amount realized therefor by your petitioner, since his appointment as such committee, is the sum of — — dollars. That the value of the personal estate of said A. T. E., at the time of your petitioner's appointrnent as such com- mittee, was the sum of dollars ; but your petitioner has been obliged to sell and dispose of a considerable part thereof, to wit, the articles mentioned in Schedule " B.," hereto annexed, for the purpose of paying debts owing by the said lunatic, and the necessary expenses and disbursements attending said trust ; and that the debts so paid, and the items of the expenses and disburse- ments aforesaid, are stated in the schedule hereto annexed, marked "0." That all the personal property in your petitioner's possession now belonging to the said lunatic is set forth in the schedule hereto annexed, marked "D." And your petitioner farther shows, that the debts yet existing against the said estate are set forth, with the amoants thereof, in the schedule hereto («) The proceedings for a sale, &c., for the maintenance of the lunatic, or his family, or for the education of his children, are similar to those on a sale for the payment of debts ; and the forma No5. 430 to 438 may be used, in such case, with the necessary alterations. CH. XVIII.J LUNATICS, HABITUAL DRUNKARDS, ETC. 553 annexed, marked schedule " E." [or, that the following is an account of the debts now existing against the said estate, viz. : set forth list of debts, with their amounts]. That the aggregate amount of such debts is dollars, or thereabouts ; for the payment of which, in addition to the expenses of sup- porting said lunatic, the income of said real and personal estate is wholly in- sufficient ; and that the whole of said personal estate, if sold for that purpose, would not be sufficient to discharge the said debts. Your petitioner therefore prays, that he may be authorized, by an order of this court, to mortgage or sell so much of the real estate of said lunatic as may be necessary for the payment of his debts. H. R. [Verification, as in No. 393.] [Annex schedules mentioned in the petition.} No. 431. OKDBB OF EEFBRBNOB THEEEON, See ante, p. 40. [Title as in No. 410.] At a special term, <&e. [as in No. 6]. On reading and filing the petition of H. R., committee of the person and estate of A. T. R., the above-named lunatic, dated the day of , 18 — , praying for authority to mortgage or sell so much of the real estate of the said lunatic, as may be necessary for the payment of his debts ; and on motion of L. P. 0., of counsel for the petitioner, ordered, that it be referred to L. F., Esq., residing in the county of , to inquire into and report upon the matters in the said petition contained, and to inquire into the truth of the representations therein made, and to hear the parties interested in the said estate, and to report to this court with all convenient speed whether the personal estate of the said lunatic is insufficient for the payment of his debts; and whether a mortgage or sale of the real estate of the said lunatic, or any part thereof, is necessary for that purpose ; and if so, which would be most advantageous to the said lunatic ; and if a sale, his reasons therefor ; and whether a sale or mortgage of the whole, or only a part, of said premises is necessary ; and if only a part thereof is necessary to be mortgaged or sold, that he specify what particular part thereof can be disposed of, with the least injury to the interests of the said lunatic No. 432. NOTICE BT EEFEEEB OF PE0CEEDING3 BEFORE HIM. See ante, p. 40. [Title as in No. 410.] To E. R., and all others interested : Whereas, by an order of this court, dated the day of , 18 — , it was referred to the undersigned to inquire into and report upon the matters 554 APPENDIX OF FORMS. [CH. XVni. contained in the petition of H. K., committee, &o., praying for leave to sell or mortgage tlie real estate of A. T. E. above named, for the payment of liis debts. You will therefore take notice that I shall proceed to an examination into the said matters on the day of , 18 — , at o'clock — . m. of that day, at my office in . L. P., Referee. Dated, <&c. No. 433. eefehbb's eepobt as to the neoessitt of a sale, etc. See ante, p. 40. [Title as in No. 410.] To the Supreme Court of the State of New York \or other c^urt] : The undersigned, appointed referee by an order of this court, dated the day of , 18 — , and therein directed to inquire and report as to the matters contained in the petition of H. R., committee of the estate of the above-named lunatic, do report: That having caused — ■ — days' notice in writing, to be given to R. R. and J. R., of, c&c, who are the children and next of kin of said lunatic, residing in this State, and having been attended by the attorney for the said com- mittee, the said R. R. and J. R. failing to appear, I proceeded to make the inquiries directed by the said oi-der. That, from the evidence produced before me, I am satisfied that the facts stated in the said petition of H. R., committee aforesaid, are true. That I have ascertained that the personal estate now owned by the said lunatic is worth the sum of dollars. That a considerable part of the personal estate originally belonging to said lunatic has been sold and applied to his sup- port and maintenance, and the payment of debts owing by him, and the necessary and proper expenses and disbursements attending said trust. That the personal property now owned by the said lunatic is insufficient for the pay- ment of his debts ; and that it is not advisable the same should be sold, for the reason that the most of it is necessary household furniture, and all of it is needed in the house and premises of said lunatic for the use of said lunatic and his family. And I further report, that the debts owing by the said lunatic amount to the sura of dollars; and are due to the following persons: [state names o/ creditors, and the amount and nature of the indebtedness]. That a sale of a portion [or, the whole] of the real estate of said lunatic is necessary for the payment of those debts ; and that such sale would be preferable to a mortgage, for the reason [state reasons]. That the part of said real estate which can be disposed of with the least injury to the interests of said lunatic is that piece or parcel of real estate situate, &e. [describe i(\, which is estimated to be worth about dollars. All which is respectfully submitted. Dated, &c. L. F., Referee. CH. XVm.] LUNATICS, HABITUAL DRUNKARDS, ETO. 555 No. 434. OKDER TO OONFIEM EEFEEBe's EBPOBT. See ante, p. 40. [Title as in No. 410.] At a special term, &c. [as in No. 6]. On reading and filing the report of L. F., Esq., referee, residing in the county of , dated the day of , 18 — , and on motion of L. P. 0., attorney for H. R., committee of the above-named lunatic, it is ordered that the said report be, and the same is hereby, confirmed. And it appearing to the court from the said report, and an examination of the matter, that the personal estate of the said lunatic is insufficient for the payment of his debts, and that the same has been applied to that pur- pose as far as the circumstances of the case rendered proper ; that the value of the personal estate now owned by him amounts to dollars, and that the debts now owing by the said lunatic amount to dollars, and that a sale of a portion [or, the whole] of the real estate of said lunatic is necessary for tlie payment of said debts ; it is further ordered, that the said H. R., com- Tnittee, aforesaid, be, and he is hereby, authorized and directed to sell, at public or private sale, subject to the approbation of this court, the piece or parcel of real estate o.vned by said lunatic, and described in said report, for the purpose of paying and discharging the debts of the said lunatic ; which said real estate is described, as aforesaid, as follows : [insert description]. And it is further ordered, that before any conveyance in pursuance of suclx sale shall be executed, the terms of such sale shall be reported by the said committee, on oath, to the court, and confirmed by the said court. No. 435. EEPOET OP SALE BY COMMITTEE. See ante, p. 41. [Title as in No. 410.] To the Supreme Court of the State of New York [or other court] : In pursuance of an order of this court in the above matter, dated the day of , 18 — , authorizing and directing me to sell, at public or pri- vate sale, subject to the approbation of tliis court, the real estate mentioned in said order, for the purpose of paying and discharging the debts of the said lunatic, and directing me to report the terms of such sale to this court, upon oath, before any conveyance of said premises should be executed, I, the sub- scriber, the committee of the said lunatic, do report : That I have sold, subject to the approbation of this court, to D. 0., of, t&c, the piece or parcel of real estate specified in said order, at and for the price or sum of dollars, to be paid on the delivery of the deed therefor ; which 556 APPENDIX OF POEMS. [PH. XVIII. sum is the highest price that could be obtained for the said real estate. [Or, That pursuant to previous public notice given by me, for that purpose, for the space of weeks, I did, on the day of , 18 — , at, Sc, sell at public auction, to D. 0., of, (fie, the piece or parcel of real estate mentioned in said order, for the price or sum of dollars, the said D. 0. being the higliest bidder, and that being the highest sum bid therefor ; and that by the terms of said sale the purchase-money is to be paid on the delivery of the deed, after the court shall have confirmed the said sale.] All which is respectfully submitted. Dated, Se. H. B., Committee. County of , ss. : H. E., the committee of the estate of E. H., above nanied, being duly sworn, says, that he has read the above report, subscribed by him, and knows the contents thereof, and that the matters therein stated are true. Sworn, <£c. H. R. No. 436. OEDEE OONFIEMING SALE AND DIEEOTING OONVETANOB. See ante, p. 41. [Title as in No. 410.] At a special term, <&c. [as in No. 6]. On reading and filing the report of H. E., the committee of the estate of the above-named lunatic, made upon oath, dated the day of , 18 — , stating, &c. [set out the report}, it is, on motion of L. P. C, attorney for the said committee, ordered that the said report, and the sale therein mentioned, be, and the same are hereby, ratified and confirmed. And it is further ordered that the said committee execute and deliver to D. C, the purchaser in the said report mentioned, a good and sufiBcient con- veyance of the piece or parcel of land purchased by him, upon receiving the purchase-money agreed to be paid therefor. And that the said committee apply the net proceeds of the said sale, after deducting the costs of these pro- ceedings, to be taxed, and the other necessary expenses of efiecting said sale, to the payment and discharge of the debts of the said lunatic, specified in the report of L. P., Esq., bearing date the day of , 18 — . {a) [If additional security is required to ie given, add .•] And it is further ordered that the said committee, before receiving the said proceeds from the purchaser, shall give additional security, by a bond, with two sureties, to be approved of by a justice [or, a judge] of this court, and filed with the clerk, conditioned for the faithful application of. and accounting for, the proceeds of said sale. (a) If a sale is ordered in cases where the personal estate is insufficient for the maintenance of the lunatic, &c., the order confirming the sale should direct the manner in which the proceeds of the sale shall be secured, and the Income or produce thereof appropriated. 3 H&v. Stat. 54, aec. 17. CH. XVIII.] LUNATICS, HABITUAL DRUNKARDS, ETC. 557 No. 437. BOND OF COMMITTEE ON SALE OF EEAL ESTATE. See ante, p. 41. [The same as in, M. 413, to the (*), and then as follows:] Whereas, by an order of the Supreme Coart [or other court], dated the day of , 18 — , H. R. above named, who is the committee of the person and estate of A. T. E., a lunatic, was authorized and directed to convey the real estate of said lunatic, situated in the town of aforesaid, mentioned in said order, to D. C, on his receiving the purchase-money agreed to be paid tlierefor. Now, therefore, the condition of this obligation is such, that if the above- bounden H. R. shall faithfully apply the proceeds of such sale to the payment of the debts against said lunatic, and shall also faithfully account for the said proceeds, then the above obligation to be void, otherwise, to remain in full force and virtue. [Signed, achnowledged. So., as in No. 413.] No. 438. DEED OF COMMITTEE. See aute, p. 41. This indenture, made the day of ■ — — , 18 — , between H. R., of the town of , in the county of , and State of New York, committee of the person and estate of A. T. R., a lunatic, of the first part, and D. 0., of the same place, of the second part. Whereas, by an order of the Supreme Court [or other court], made on the day of , 18 — , reciting that it appeared to the said court that the personal estate of the said A. T. R. was insufficient for the payment of his debts, and that a sale of a portion [or, the whole] of the real estate of the said lunatic was necessary for the payment thereof, the said party of the first part, as such committee, was, among other things, authorized and directed to sell, at public or private sale, subject to the approbation of the court, the piece or parcel of real estate owned by said lunatic and specified in said order, for the purpose of paying and discharging the debts of the said lunatic, and to report the terms of the sale made by him to the court on oath, before any conveyance of the said premises should be executed. And whereas, the said party of the first part, as such committee, having, in pursuance of the said order, on the day of , made his report to the court, stating, <&c. [state the substance of the report of sale]. And whereas, by another order of tlie said court, dated the day of 18 — , it was ordered that. So. [state order confvrm.ing sale, &e.] 558 - APPENDIX OP FORMS. [CH. XVIII. Now, therefore, this indenture witnesseth that the said party of the first part, committee as aforesaid, by virtue of the power and authority conferred upon him by the several orders above mentioned, and in pursuance of the statute in such case made and provided, for and in consideration of the sum of dollars, to him in hand paid at or before the ensealing and delivery of these presents, by the party of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold, remised, released, and conveyed, and by these presents does grant, bargain, sell, remise, release, and convey unto the said party of the second part, his heirs and as- signs forever, all the right, title, and interest of the said lunatic of, in, and to all that certain piece or parcel of land bounded and described as follows: [imert description]. To have and to hold the said premises, and every part and parcel thereof, with the appurtenances, to the said D. 0., his heirs and assigns, to his and their only proper use, benefit, and behoof forever. 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 the presence of L. F. H. R. [SealJ] No. 439. PETITION FOR SALE OF EBA.L ESTATE TJNDEE THE ACT OF 1864. See ante, p. 42. In Supeeme Couet. To the Supreme Court of the State of New York : The petition of A. T. B., a lunatic, by H. K., his committee, respectfully shows : That your petitioner has been adjudged a lunatic by virtue of an inquisi- tion of lunacy heretofore ordered by this court. That the property, real and personal, of your petitioner, has been placed in the care and custody of H. E., of, &c.^ who was appointed the committee of the person and estate of your petitioner ; and that the said H. R. is still such committee. That your petitioner is the owner in fee of the following piece or parcel of land, situated, lying, and being in the town of , in the county of , and bounded and described as follows: \i7ise-^t description]. That the said piece or parcel of land is worth about dollars ; but the same is wholly unproductive, being wild and unimproved [or, and produces an annual income of dollars]. Tour petitioner further shows, that, &c. \set out the facts to show that a disposition of the real estate is necessary and proper either for the support and maintenance of the lunatic or for his education, or heeause his interest reqvires or will ie substantially promoted iy such disposition, or has been contracted to ie sold, and a conveyance thereof cannot he made iy reason of such lunacy, or for any other peculiar reasons or circumstances]. CH. XVIII.] LUNATICS, HABITUAL DRUNKARDS, ETC. 559 Tour petitioner therefore prays that the said real estate may be sold by the said H. R., committee, as aforesaid, under the direction of the court, upon giving security as required by law. H. R., Committee. [ Verification as in No. 393.] No. 440. OBDEB FOB SEOUEITT, AND DIEBOTIKG BEFBRENOE ACT OF 1864. See ante, p. 42 At a special term of the Supreme Court, &e. [as in 2fo. 6]. In the matter of A. T. R., a lunatic. On reading and filing the petition of A. T. R., a lunatic, by H. R., the committee of his person and estate, dated the day of , 18 — , praying for authority to sell the real estate of the said lunatic, and on motion of L. P. C, of counsel for the petitioner, it is ordered, that it be referred to A. W., Esq., residing in the county of , to inquire into and report upon the matters in the said petition contained, and to inquire into the truth of the representations made, and to hear the parties interested in the said estate, and to report to this court, witli all convenient speed, whether the sale of said real estate, or any part thereof, is necessary and proper, and, if such sale is necessary or proper, his reasons therefor. It is furtlier ordered, that the said H. R. execute and file with the clerk of this court his bond, in the penal sum of dollars, with two sureties, conditioned for the faithful performance of the trust reposed in him, for the paying over, investing, and accounting for all moneys that shall be received by him, according to the order of any court having authority to give direc- tions in the premises, and for the observance of the orders and directions of tlie court in relation to the trust. And it is further ordered, that no proceedings be had before the said referee until the said H. R. produces a certificate of the clerl<, in due form, that the security herein required has been duly proved or acknowledged, and filed, agreeably to this order. No. 441. BOND OF OOMMITTEB, ON SALE, TJNDEK ACT OP 1864. See ante, p. 43. Know all men by these presents, that we, H. R., of the town of — — , in the county of , and W. T. F. and J. G. R., farmers, of the same place, 560 APPENDIX OF FORMS. [CH. XIX. are held and firmly bound unto A. T. E., a lunatic, of, c6c., in the sum of ■ dollars, lawful money of the United States, to be paid to the said A. T. E., his executors, administrators, or assigns ; for which payment, well and truly to be made, we bind ourselves, our, and each of our, heirs, execu- tors, and administrators, firmly by these presents. Sealed with our seals, and dated the day of , 18 — . Whereas, the said A. T. E. has applied to the Supreme Court, by the said H. E., the committee of his person and estate, for authority to sell cer- tain real estate owned by him, situated in the town of , in the county of . Now, therefore, the condition of the above obligation is such that, if the iibove-bounden H. E. shall faithfully perform the trust reposed in him, and shall pay over, invest, and account for all moneys that, shall be received by him, according to the order of any court having authority to give directions in the premises, and for the observance of the orders and directions of the court in relation to such trust; then this obligation to be void, otherwise to remain in full force and virtue. H. E. [l. s.] Signed and sealed in the W. T. F. [l. s.] presence of J. G. E. [l. s.] A. B. [AeJcnowledgment or proof, and affidavit q/ sureties, as in No. 4A.] No. 442. OERTIFIOATE OF OLEEK ; EEFEEEe's EEPOKT, AND 0THEK POEMS — ACT OF 1864. See ante, pp. 42 to 45. [Same substantially as in Nos. 262 to 267, witli the necessary alterations.] CHAPTER XIX. FORMS IN MANDAMUS AND PROHIBITION. No. 443. AFFIDAVIT ON APPLIOAtlON FOR MANDAMUS. See ante, p. 62. State of New York, j County of , ( ®®- A. B., of , in said county, being duly sworn, says: That, Sc. [set forth the facts to show that the relator is entitled to the writ, and to the relief demanded]. Sworn, (be. x. B. CH. XIX.] MANDAMUa 661 No. 444. NOTICE OF MOTION FOB A WEIT OF MANDAMUS. See ante, pp. 63 to 65. To 0. D : SiE, — you will take notice that I shall move the Supreme Oourt, at the next special term thereof, to he held at the Conrt House, in the village [or, city] of , on the day of instant, at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order (*) that a writ of mandamus issue out of the said court, directed to you, and com- manding you that, Sc. [state the object of the writ], or for such further or other relief as the conrt may be pleased to grant ; which motion will be founded upon the aflSdavit, with a copy whereof you are herewith served. Dated, (fee. Yours, &c., L. P. 0., Att'y for A. B No. 445. OEDBB THAT A MANDAMUS ISSUE, OE THAT THE DEFENDANT SHOW CAUSE. See ante, p. 65. At a special term of the Supreme Oourt held at the Oourt House in , in and for the ■ county of , on the day of , 18—, Present, Hon. A. B., Justice. In Supeeme Ooubt. The People, ex rel. A. B., vs. 0. D. 1 I J On reading and filing the affidavit of A. B., the relator above-named, dated the day of , 18 — , and on motion of L. P. C, Esq., of coun- sel for the relator, (*) [after hearing 0. H., Esq., in opposition thereto], it is orderedj that a mandamus issue out of and under tlie seal of tliis oourt, di- rected to the said 0. D ., commanding him forthwith to, &c. [state what is required to le done], or that the said 0. D. show cause to the contrary be- fore this court at the next special term thereof, to be held at the Court House in , on the day of next. No. 446. OEDEE to show CAUSE WHY MANDAMUS SHOUT D NOT ISSUE. See ante, pp. 63 to 65. [Same as in No. 445 to the asteris\ (*) cmd tlien continue:] it is •rdered that 0. D. above named, show cause, at the next special ter.n of Vol. II.— 36 562 APPENDIX OF FORMS. [CH. XIX. this court, to be held [or, at the special term of this court now sitting], at the Court House in , on the day of instant, why the said 0. D. should not be compelled forthwith, >'S mayor, aldermen, and commonalty his damages aforesaid by the jurors '^ Q aforesaid, in form aforesaid found, and also dollars and — ■ — cents, I ^ for his costs and charges by the court now here adjudged to the said 1 ^ A. B. ; which said damages, costs, and charges, in the whole, amount to 2 ". dollars and — — • cents. And it is further considered that the pe^ - pie's writ of mandamus do forthwith issue, directed to the said mayor, c aldermen, and commonalty, commanding them, upon pain and peril that ~ i' shall fall thereon, to cause the said A. B. to, be immediately sworn and ■" 2 admitted into the aforesaid oAoe of alderman, according to the coni- g r mand of the said former writ of alternative mandamus, &o. ^ \If the verdict was against the plaintiff, make the necessary altera- ^ tions in the above, according to the fact, and then proceed as follows in respect to the judgment :] It is therefore considered that the said mayor, aldermen, and commonalty recover against the said A. B. dollars and cents, for their costs and charges by them laid out and expended in and about their defense to the said writ of mandamus, adjudged to the said mayor, aldermen, and commonalty, by their assent ; and that they have execution therefor, &o. No. 452. PEEEMPTOEY MANDAMITS — QBIfBEAL FORM. See ante, pp. 63, 78. The People of the State of New York to 0. D. [or the court, eommusion- ers, or other officers, or persons to whom it is directed, naming them], greet- ing: "Whereas, [here recite the facts or statements, briefly, which pre- [l. s.] ceded the gravamen or injury]. Nevertheless, you, the aforesaid [court, officer, or person], have iinjustly [state briefly the order or proceeding complained of], as we are Informed by the complaint of A. B., and which complaint we have adjudged to be true as appears to us of record. Now, therefore, we beinf^ willing that full and speedy justice be done in this 566 APPENDIX OF FOEMS. [CH. XI2. belialf to him the said A. B. as it is just, command you, firmly enjoining, that immediately after the receipt of this writ, you, Se. [insert the thing or matter required to be done, substantially according to the order of the court allowing the mandamus], lest complaint shall again come to us by your default ; and in what manner this our command shall be executed, make appear to our said Supreme Court, on the day of , at the Court House in. ; then imd there returning this our writ. Witness, 0. D. A., Justice of the Supreme Court, at , the day of , 18—. K B. M., Clerk. L. P. C, Attorney. [Indorsed:] " By the Court," N. B. M., Clerk. No. 453. NOTICE OP MOTION POE WEIT OF PEOHIBITION. See ante, p. 88. [Same substantially as in No. 444 to the asterisk, and then continue :] That a writ of prohibition issue, directed to the county court, of the county of [or other court to he restrained^, and to C. D., and commanding them to desist and refrain from any further proceedings in, . Dated, So. L. F. No. 538. NOTICE OF MOTION. See ante, p. 166. [Title substantially as in No. 165.] To 0. D. [or. To J. W. F., attorney for 0. D.] above named : Take notice, that I shall apply to the Supreme Court [or other court], at the next special terra theEeof, to be held at the Court House in the city [or, village] of , in the county of , on the day of , 18 — , at 10 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for an order granting the prayer of the petition, a copy of which is hereto annexed. Yours, &o., Dated, Sc. E. B., Attorney for Plaintiff. No. 539. PETITION BEFOEE ACTION BEOtTQHT. See ante, p. 166. In the matter of the application of A. B. To the Supreme Court of the State of New York [or other court] : The petition of A. B., of , in the county of , shows to the court, that C. D., of. So., isjustly indebted to your petitioner In the sum of dollars, and interest thereon from the day of , 18 — , for work, labor, and services performed by your petitioner for the said C. D. at his request, during the years 18— and 18—, no part of which has been paid. Your petitioner further shows, that. dee. [follow substantially No. 53Y, from the asterisk (*) to the end, including the certificate of a counselor of the ■•lart]. CH. XXII.] DISCOVEBT OF DEATH OF PEBSONS. 625 No. 640. » OBDGB ADMITTING PAETT TO PEOSEOUTE AS A POOB PEBSON. See ante, p. 166. [Title as in petition.] At a special term, Sc. [as in No. 6]. On reading and filing the petition of A. B. above named, dated the day of , 18 — , and the certificate of L. F., a counselor of this court, an- nexed thereto ; and the court being satisfied that the matters alleged in said petition are true, and that the said A. B. has a meritorious cause of action against 0. D. above named, it is, on motion of E. B., of counsel for said A. B. [after hearing J. W. F., counsel for 0. D., in opposition thereto], ordered that the said A. B. be, and he is hereby, admitted to prosecute his said cause of action in the Supreme Court [or other court] as a poor person. It is further ordered that 0. H. S., Esq., an attorney and counselor of this court, be, and he is hereby, assigned as attorney and counsel for the said A. B., to prosecute the said action. CHAPTER XXII. FORMS EST PROCEEDINGS TO DISCOVER THE DEATH OF PERSONS. No. 541. PETITION. See ante, p. 169. In Supeeme Oouet. In the matter of the application of A. B., to discover the death of 0. D. To the Supreme Court of the State of New York : The petition of A. B., of, <&c., shows to the court : That he is the owner in fee, subject to the life estate therein of 0. D., of all that piece or parcel of land, situated in the town of , in the county of , and bounded and described as follows : [insert description]. That, by the last will and testa- VOL. II.— 4» 626 APPENDIX OF FORMS. [OH. XXII. ment of R. D., late of said to.wn of , deceased, the said lands were de- vised to the said'O. D., for and during his natural life, and at his decease, to your petitioner in fee. Your petitioner further shows, that he has cause to believe, and does be- lieve, that the said 0. D. is dead ; and that his death is concealed by L. D., his father, who resides at , in said county, and who is entitled to the custody of the said 0. D., if living. Your petitioner therefore prays that an order may he entered, requiring the said L. D. to produce and show the said 0. D., at a time and place, and to a referee or commissioner to he designated by the court ; and that your petitioner may have such further or other order or relief as may be proper. [Add verification substantially as in No. 1.] A. B. No. 542. NOTICE OF PEESENTATION OF PETITION. See ante, p. 170. [Title as in last form.] To L. D., of, d;c. : Take notice, that the petition, with a copy whereof you are herewith served, will be presented to the Supreme Court at the next special term thereof, to be held at the Court House in, c6c., on the day of , 18 — , at 10 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, and a motion will then and there be made that the prayer of the said petition be granted. Yours, &c.. Dated, Sc. A. B. No. 643. OEDEE THEEETTPON. See ante, p. 110. [Title as in No. 541.] At a special term, Sc. [as in No. 6]. On reading and filing the petition of A. B. above named, dated the day of , 18 — , and notice of motion for an order requiring L. D. to pro- duce and show C. D. to a referee or commissioner to be appointed for that purpose ; and dne proof of the service of said petition and notice on the said L. D. having been produced to the court; it is, on motion of E. L. S., of counsel for the petitioner, ordered that the said L. D. produce and show the said C. D. to L. F., Esq., who is hereby appointed referee for that purpose, at the oifice of the said L. E., No. 128 Broadway, New York, on the day of , 18 — , at 10 o'clock a. m. CH, XXII.3 DISCOYERY OF DEATH OF PERSONS. 627 No. 544. ekfbeee's eetxten. See ante, p. 170. [Title as in No. 641.] To the Supreme Court of the State of New York : I, the undersigned L. P., appointed referee by an order of the Supreme Court, dated the day of , 18 — ■, and to whom L. D. was required to produce and show 0. D., do hereby report : That the said L. D. did, at the time and place designated in said order, to wit, on the day of , 18 — , at my ofBce, No. 128 Broadway, in the City of New York, produce and show to me the said C. D., pursuant to the order of said court. I further report, that I was personally acquainted with the said C. D. \or, that I was not personally acquainted with the said C. D., and that his identity was proved to me by E. L. and 8. S., witnesses examined by me ; and that the proof taken upon such examination is annexed hereto, and forms a part of this my report]. All which is respectfully submitted. Dated, roceeds shall be applied]. CHAPTEE XXX. FORMS m SUMMARY PROCEEDINGS TO REMOVE TENANTS. No. 583. NOTICE TO PAT KENT OE TO STJEEKNDEK POSSESSION. See ante, p. 288. To 0. D. : SiE, — ^You will take notice, that you are indebted to me in the sum of dollars, for rent of the house and premises, No. , in Street, in the village [or, city] of , now occupied by you ; and that I require the payment of said rent, on or before the day of instant [three days' notice], or the possession of said premises. Yonrs, &c.. Dated, &c. A. B., Landlord. [For form of afflda/oit of service of the above notice, see post. No. 585, with necessary alterations.] No. 584. NOTICE TO QUIT THE PREMISES. See ante, p. 290. To 0. D. : ' Sib, — ^Tou will take notice, that you are required to surrender and deliver up possession of the house and premises. No. , in Street, in the yillage [or, city] of , which you now hold of me ; and to remove therefrom, on or before the day of next [one month's notice], pursuant to the statnte relating to the rights and duties of landlord and tenant. Dated, Sc. Yonrs, &c., A. B., Landlord. 652 APPENDIX OF FORMS. [CH. XXX. No. 585. AFFIDATIT OF 8EEVI0B OF WOTIOB. See ante, p. 290 State of New York, ) County of — -, j H. S., of , in said county, being duly sworn, says : That on the day of , 18 — , he served upon 0. D., of , in said county, a notice, of which the notice annexed is a copy, by delivering such notice to, and leaving the same with, the said 0. D., at , in said county [or, by delivering such notice to, and leaving the same with, E. D., the wife of 0. D. (or, with W. D., the son of said 0. D., aged twenty years), residing on the premises men- tioned in said notice]. Dated, &e. H. S. Sworn, &c. No. 586. AFFIDAVIT OF DEMAND OF POSSESSION HOLDING OVBE AFTBB BALE ON EXECUTION. See ante, p. 290. State of New York, ) County of , J H. S., being duly sworn, says : That he is acquainted with C. D., residing at No. , in the village [or, city] of . That A. B., of, Se., on the day of instant, at the residence of said C. D., demanded the possession of the house and premises so occupied by said C. D., as aforesaid, and that the said C. D. refused to surrender the possession of the same. Sworn, die. H. S. No. 587. AFFIDAVIT OF LANDLOED TO EEMOVB TENANT — BXPIEATION OF TEEM. See ante, p. 292. A. B. against C. D. County of , ss. : A. B., of , in said county, being duly sworn, says : That on the day of , 18—, he let and rented unto C. D., of , in said county, the house and premises situated in the of , in said county, and described as follows : [deseriie the premises definitely'] ; which said CH. XXX.] SUMMARY PEOCEEDESTGS. 653 premises were so let and rented to the said C. D. for the term of one year from the day of then next, and that the said terra has expired. And deponent farther says, that the said 0. D. [or, that E. F., the as- signee, or, under-tenant, of the said C. D.] holds over and continues in the possession of the said premises, without the permission of this deponent, his landlord. Sworn, &c. A. B. No. 588. LIKE AFFIDAVIT IN CASE OF TENANOT AT WILt. See ante, p. 292. [Title as in last form.} County of , ss. : A. B., of , in said county, being duly sworn, says : That on or about the day of last, he let and rented unto 0. D.. of the same place, during the will and pleasure of deponent, the house and prem- ises situated in the of , in said county, and described as follows : [de- scribe tJie premises definitely]. And deponent further says: That the said 0. D. has held and occupied the said huUding and premises, as the tenant at will of this deponent, from the day of aforesaid, until the expiration of such tenancy as hereinaf- ter mentioned. And deponent farther says: That he caused a notice in writing to be served upon the said 0. D., in due form of law, on the day of , 18 — , requiring the said 0. D. to remove from the said premises on or before the day of , 18 — . That the time within which the said C. D. was so required to remove has expired ; and that the said 0. D. holds over and con- tinues in possession of the said premises, after the expiration of such time, without permission of this deponent, his, landlord. Sworn, Se. ^ B- No. 589. tlKB AFFIDAVIT, IN CASK OF KON-PATMENT OF BENT. See ante, p. 292. [Title as in M. 587.] County of , ss. : A. B., of , in said county, being duly sworn, says : That on the day of — , 18—, he let and rented unto 0. D., of the same place, for the term of two years, from the day of last, at an annual rent of dollars, payable quarterly, the house and premises situa- ted in the of '■ , in said county, and described as follows : [describe the premises definitely]. That the said 0. D. is now justly indebted to deponent in the sum of dollars, and interest thereon from the day of last, for the rent of said premises, pursuant to the agreement under which 654 APPENDIX OF FORMS. [CH. XXX, said premises are held, as aforesaid, to wit, for the quarter's rent due by the terms of said agreement, on the day of last. And deponent further says : That he caused a notice, in writing, to be served upon the said 0. D., in due form of law, on the day of , 18 — , requiring payment of said rent, so due, as aforesaid, on or before the day of last, or the possession of said premises ; but which rent haa not been paid, nor any part thereof. And deponent further says, That the said 0. D. holds over and continues in possession of the said premises, after default in the payment of such rent, as aforesaid, and without the permission of this deponent, his landlord. Sworn to, (&e, A. B. No. 590. AFFIDAVIT BY AOENT OF LANDLORD. See ante, pp. 292, 294. [Title as in No. 587.] County of , ss. : G. H., being duly sworn, says : He is the agent of A. B., hereinafter mentioned, and is authorized to institute proceedings for the removal of 0. D. from the premises hereinafter described. That, &c. {proceed substantially as in the previous forms'}. No. 591. BTJMMONB TO EEMOVB OE SHOW 0AT7SE. See ante, p. 295. To 0. D., of , in the county of , and any other person in the possession or claiming the possession of the premises hereinafter described : Whereas, A. B., of , in said county, has made oath in writing, and presented the same to me, that, . [seal.] in presence of J. M. [seal.] W.B. B. M. M. [seal.] No. 601. NOTIOE OP APPEAL FEOM JUSTICE'S COUET TO COUNTY CODET. See ante, pp. 305 to 308. In Justice's Couet. A. B., Kespondent, against }- Summary Proceedings. C. D., Appellant. I To A. B., above named, and to W. B. B., Esq., Justice of the Peace : Take notice, that the above-named C. D. appeals to the county court "of the county of , from the judgment rendered on the day of , 18 — , before W. B. B., Esq., in favor of the said A. B., against the said 0. D., nnder the provisions of tlie statute authorizing summary proceedings to re- cover the possession of land in .certain cases ; and in which judgment costs were included, amounting to dollars. 660 APPEKDIX OF FORMS. [CH. XXX. Also take notice, that the grounds upon which the said appeal is founded are as follows : [state all the grounds of the appeal particularly]. Dated, <&e. ' 0. D., Appellant. No. 602. UNDERTAKING ON APPEAL, AND TO PAY KENT. See aTite, p. 301. [Title as in last form.'] The above-named C. D., having appealed to the county court of the county of , from the judgment rendered against him on the day of , before W. B. B., Esq., in favor of the said A. B., under the provisions of the statute authorizing summary proceedings to recover the pdssession of land in certain cases, and in which judgment costs were included, amounting to dollars. Now, therefore, in order to stay the execution of the said judgment, and in consideration thereof, we, J. M. and M. M., do undertaie and promise to and with the said A. B., that if judgment be rendered against the said 0. D., on the said appeal, and execution thereon be returned unsatisfied, in whole or in part, we will pay the amount unsatisiied. [If the appeal is hy the tenant, then continue :\ And we do further undertake and promise, to and with the said A. B., that the said C. D. shall pay aU rent accruing, or to accrue, upon the prem- ises, the possession of which is sought to be recovered by the said A. B., in the proceeding before the justice aforesaid, subsequent to the application to said justice, and that in default thereof we will pay the same. In witness whereof, we have hereunto set our hands and seals this day of , A. D. 18 — . J. M. [seal.] M. M. [seal.] I approve of the above undertaking, and the sureties therein mentioned. Dated, &c. J. P., County Judge [or, A. B., Justice Sup. Court]. No. 603. CEETIOEAEI. See ante, p. 308. The People of the State of New York, to J. P., Esq., County Judge of the County of [or, W. B. B., Justice of the Peace of the Town '- ■-' of , in the County of J, greeting : Whereas, we have been informed by the complaint of C. D., of, &c., that certain proceedings were had before you on behalf of A. B., against the said 0. D., under the statute relating to summary proceedings to recover the pos- CH. XXX.] SUMMAEY PEOOEEDINGS. 661 session of land in certain oases, whereby [state the order or proceeding com- plained of]; and we being willing, for- certain reasons, to be certified of such proceedings, if any such were had before you, do command and strictly en- join you, that you do certify and return those proceedings, with all things appertaining thereto, unto our justices of our Supreme Gourt of Judicature, at the Court House in , on the day of next, under your hand' as fully and amply as the same remain before you, so that our said justices may further cause to be done thereupon what of right and according to law ought to be done ; and have you then there this writ. Witness, A. B., Justice of the Supreme Court, at . , the day of , A. D. 18—. O. F. D., Attorney. N. 3. M., Clerk. Indorsed:] " By the Court." N. B. M., Clerk. No. 604. EBTUBN TO WEIT OP OEETIORABI. See ante, p. 308. {Follow the form given in No. 97, altering it to conform to a retwrn in nummary proceedings.] No. 605. JUDGMBNT BBOOKD ON OBETIOBABI. See ante, p. 308. [For form of Judgment Record, see ante. No. 100.] No. 606. WBIT OF KBSTITUTIOIf. See ante, p. 311. The People of the State of New. York, to the Sheriff of the County of , greeting : Whereas, 0. D., of — — , in said county, by certain proceedings had before [name of officer], under the provisions of article second, title ten, of chapter eight, of part third of the Revised Statutes, entitled, " Summary proceedings to recover the possession of land in certain cases," was removed from the pos- 662 APPENDIX OF FORMS. [CH. XXX. » session of, do. [describe premises] ; and which proceedings we cansed to be removed into our Supreme Court of judicature, by our writ of certiorari ; and whereupon it was considered in our said court, before our said justices, that the said 0. D. should be restored to the possession of the said premises wliereof the said C. D. is evicted, as appears to us of record. Now, therefore, we command you forthwith to restore the said 0. D, to the full possession of the aforesaid described premises ; and how and in what manner you shall have executed this ouv writ, make appear to our Supreme Court, at, &c., on, i&c.,- and have then and there this writ. Witness, t&e. [as in No. 603]. INDEX. [The lines in italic correspond witli the italic headings in the body of the work.] ADMEASUREMENT OF DOWEE. When widow is entitled to have dower admeasured, i. 1. The proceeding is no evidence of title, i. 1. Rights of the widow before admeasurement, i. 2. Who may apply for admeasurement, i. 1, 4, 5, note a. Is the proceeding for the admeasurement of dower a special proceeding, L 15, note. How far that proceeding is affected by the Code, i. 1 5, note. Bow and to what courts the widow to apply, i. 2. Must be on petition and notice, i. 2, 3. Where application to be made, i. 2. What the petition and notice to contain, i. 2, 3. Service of petition and notice, i. 2. Who must be, and who need not be, served, i. 3, 4. How notice to be served, i. 3, 4. Appointment of guardian for infant owners, i. 3. Proceedings by heirs, &c., for admeaswrememt, i. 4. Order that admeamrement be made, i. 5. Order appointing commissioners, and proceedings thereon, i. 5. Oath of commissioners, i. 5. Vacancies, how supplied, i. 6. Admeaswement by commissioners, i. 6. How dower to be admeasured, i. 6. Notice of the admeasurement, &c., must be given to parties interested, I 6. Seport of commissioners, i. 8. Must be filed and entered in minutes of clerk, i 8. Proceedings thereon, i. 8. Fees (^ commissioners, swrveyors, &c., i. 8. Setting aside report,' or confirmation, <6c., i. 9. Notice of motion to be giyen, i. 9. Effect of admeasurement, i. 9. 064 INDEX. ADMEASUREMENT OF DOWER.— Continued. The widow may bring an. action to recover possession, i. 9. How action commenced, i. 10. Demand not neces.sary before action, i. 10, note. Otherwise, if action la commenced before admeasurement, to entitle the widow to costs, i. 10, note. Proceedings to have do;wer assigned after action, L 10, note. Appeals, i. 10 to 14, and notes. "Who may appeal, i. 10, note. In what cases and to what courts, 1. 10, note. Duty of the clerk or surrogate on ilie appeal, i. 12. How appeal brought on, and practice therein, i. 12. Proceedings by the appellate cowrt, i. 12. Costs of the proceedings, i. 13, 14, note 6. APPEALS IN SPECIAL PROCEEDINGS. , Appeals under the act of 1854, i. 14, note 6. Appeals, the practice generally, i. 14, note 6. ARBITRATIONS. Definition of terms, i. 21. What is a proper subject of submission to arbitration, i. 21, 22. History of the statutory provisions on the subject, i. 21, 22. Parties may stUl submit at the common law, i. 22, 28. How far the statute applies to common-law arbitrations, i. 22. Application of the Code to the proceeding, &c., i. 14, note J. What matters may be submitted, i. 23, 24, 25. Who may svbmit to arbitration, i. 25, 26. Who are authorized by the statute, 1. 25. Corporations, i. 25. A guardian may for his ward, and an attorney for his cli&t, i. 25, 26. If by agent, it must be in name of principal, i. 26. One partner cannot submit partnership matters without the assent of the others, i. 26. The arbitrators and umpire, i. 26 to 28. Parties may select what arbitrators they please, i. 26. Arbitrators not permitted to contradict their award, L 21, 45. How umpire to be appointed, i. 27, 28. Their authority and how long it continues, i. 27, 31 to 33. The submission, i. 28 to 30. If under the statute, it must be in writing, i. 28, 29. Need not be in. writing if at the common law, i. 22, 28, 29. How the submission should be drawn, i. 29. It is not a submission under the statute unless it authorizes a judgment to be entered on the award, i. 22, 29. When the submission should provide for the costs, i. 29, 36, 47. The signatures of parties to submission should be witnessed, i. 30. Revocation of submission, L 30, 50. Effect of submission, i. 30. INDEX. 665 ARBITRATIONS.— Continuea. The submission, if of a pending suit, discontinues it, i. 30, 31. When otherwise, i. 30, 31. Remedy, whore party proceeds with suit after submission, i. 31. When action may be brought for same matter, notwithstanding aubmig- sion, i. 31. Proceeding on the arUtraMon, &c., i. 31. Arbitrators to appoint time and place for hearing, i. 31. They may postpone hearing, on cause shown, i. 31. Arbitrators should be sworn; effect of omission, i. 31. Notice of hearing to be given to parties, i. 31. All the arbitrators must meet and hear the proofs, i. 32. When an award by a majoiity is sufficient, i. 32. Examination of witnesses, character of evidence, &.O., i. 33. Witnesses, i. 33. May be compelled to attend before arbitrators, i. 33. Arbitrators may administer oaths when the submission is under the statute, i. 33. But not, if at the common law, i. 33. Ttie award, i. 33 to 39. If under the statute, it must be in writing, &o., i. 34. When it need not be in writing, at the common law, i. 34. How drawn, and particularity not required in the form of it, i. 34. Otherwise, where the submission requires a particular form, i. 35. In ascertaining the amount of the award, arbitrators need not regard the penalty of the bond, i. 36, 54. The award as to the costs, i. 29, 36. It must ie made within the Ume, &c., i. 36. When to be made, if no time is specified, i. 37. Arbitrators need not dehver it until their fees are paid, i. 37. It must be certain and final, i. 37. What is a certain and final award, illustrated by cases, i. 37 to 39. When the award is void, in whole or in part, i. 39. The authority conferred by the submission must be followed, i. 39. Effect of the ifa quod clause in the submission, i. 39, 35, note. Part of the award may be good, and part bad, i. 40. The award is a bar to an action for the same matter, i. 40. Confirming award, i. 41. The proceedings to confirm the award are summary, and the requirements of the statute must be complied with, i. 41. The statutory provisions and their construction, i. 41. When notice of the motion must be given, and how served, i. 41. Proceedings when order vacating award is reversed, i. 42. Motion to vacate the award, i. 42. Statutory provisions, i. 42, 43, note. The submission must have been under the statute, L 43. Proceedings on the hearing, and when award will be vacated, i. 43, 44. Motion to modify, or correct the a/ward, i. 44. When and how molnons to be made, i. 44. INDEX, ARBITRATIONS.— Continued. Motion should he made at the special term, i. 45. Notice to be given, and how served, i. 45, 41. Upon what the motion is founded, i. 45. Proeeedmgs on the appUcaiion, i. 45. Judgment on the award, i. 45. Judgment can be entered only where the submission is under the statutf, i. 46, 22, 29. The exceptions to the above, i. 46. The costs omd expenses, &e., i. 47. The provisions of the statute, i. 47. Rate at which the costs are to be taxed, L 47, 14, note 6. Authority of the arbitrators in respect to costs, expenses, &c., i. 47. Their fees, and how recovered, i. 47. Judgment record, i. 48. May be docketed, &c., as in other cases^ i. 48. Haw judgment to he enforced, i. 48. Review of the proceedings 'by writ of error or appeal, i. 48. Statutory provisions, i. 48. To what courts appeals to be taken, i. 50. The practice upon appeals and writs of error, how regulated, i. 49, 14, note 6. Costs on appeals and writs of error, i. 14, note 6. Revocation of smjimission, i. 50. When to be in writing, &c., 1. 50. Notice of revocation to be given to the arbitrators, &c., i. 51. LidbiMiy for revoking ; action; damages, &c., i. 51, and note. GonMruciion of the statute, 1. 52. In what cases a cov/rt of equity may interfere, i. 52. Action to enforce the award, i. 63. In what oases, and to what extent, the award may be impeached, i. 53. What may and may not be inquired into in the action, i. 53. When action cannot be sustained, i. 53, 54. When it is necessary to make demand of money awarded, i. 54.' Action may be brought in one court, though the submission provides for judgment in another, i. 64. ARREST AND BAIL. Arrests under the Revised Statutes, i. 55. The non-imprisonment act, and arrests thereunder, i. 55 to 57. When a/rresl is prohibited ; writ ofne exeat, i. 57. In what cases the defendant may be arrested, i. 57. The several subdivisions of the statute quoted, i. 57. 1. Arrests under (he first subdivision, i. 58 to 60. What constitutes non-residence in a defendant, i. 58, 99. When an arrest is proper under this subdivision, i. 58. 2. Arrests wider tlie second subdivision, i. 60 to 64. Arrests of female defendants, i. 60, 71. When an agent or attorney Uable to arrest, i. 60. When party acts in a fiduciary capacity, i. 61. INDEX. 667 AKREST AND BAIL.— Continued. Other oases under this subdivision, i. 60 to 64. 3. Arrests under the third subdivision, i. 64, 65. 4. Arrests under thefcmih subdivision, i. 65 to 69. 5. Arrests under the fifth subdiviswn, i. 69 to 71. 6. Arrest of female defendants, i. 11, 60. Waiver of right to arrest, i. Tl. Whether a party may be twice arrested in the same actum, i. 12. Arrest and attachment in the same action, i. 72. Who are exempt from arrest, i. 72 to 74. Order of arrest, by whom made, i 74. Affidavit to obtain order, i. 74. How the afiSdavit to be drawn, and what to contain, 1. 74 to 77. The compIaiDt, if verified, may suflSce as an affidavit, i. 76. How the affidavits to be disposed of, i. 77. Security to be given by plaintiff, i. 77. How undertaking executed, and where filed, i. 78. It may be amended, i. 78. Within what time the order of airrest to be obtained, i. 78. The order of arrest, i. 79. Arrest, how made, i, i. 453. Referee's report, i. 454. CM INDEX. INFANTS, PROCEEDINGS BY AND AGAINST.— Continued. Order upon the report, i. 454. Agreement of sale, amd report of guarMam, i. 455. Order of confirmation, i. 455. Conveyance by special guardiam, i. 456. Effect of such conveyance, i, 456. How rruirtgages to be given, i. 456. The proceeds of the sale, i. 457. When money must be brought into court, and -where deposited, i. 457. Securities, when to be delivered to guardian, &c., i. 457. * When and on what condition moneys to be paid to guardian, L 458. Persons applying for moneys, what to show, &o., i. 458. Bights of infants in proceeds, i. 459, 460. Filing inventory, and annual account, i. 460. Claim of dower, how satisfied, iSbc, i. 461. Costs of the proceedings, i. 461, 462, 14, note 6. Finalreport, and order thereon, i. 462. Papers to be filed, i 462. v. COMPELLma INFANTS TO PEEFOEM CONTEAOT OP ANCESTOR. In what cases, i. 463. To what court application to be made, i. 464. How oppUcaMon to be made, i. 464. Guardiam ad litem, i. 465, 418. His duty, and how appointed, i. 465, 418 to 420. Must give security before receiving infants' moneys, i. 466. His compensation, &c., i. 466, 468. Reference, amd proceedings (hereon, i. 466. Order dirscting performance ofamtract, i. 467. The convey a/nce, i. 467. Costs, i. 46 S, 14, note 6. Final report, and order of confirmation, i. 469. Appeals, i. 469. VI. PEOCBEDINeS TO COMPEL INFANT TEUSTBBS TO CONTBT. In what case, i. 470. Application, where made, i. 470. Guairdian ad litem, i. 470. Reference, and proceedings thereon, i. 470, 471. Effect of conveyance, i. 471. Costs, i. 471, 14, note b. Appeal frbm order, 1. 471. INFANTS, see amte, Habeas Coepus and Cbetiokaei. INSOLVENT DEBTORS, PROCEEDINGS BY AND AGAINST. I. Attachments against ABSCONDnja debtoes, etc. (See ante, "Attachments under the Revised Statutes.") n. Appointment op trustees fob debtoes confined foe ceimes. When, and by whom, application to be made, i. 496 To whom application to be made, i. 496. INDEX. 687 INSOLVENT DEBTORS, PROCEEDINGS BT AND AGAINST.— Continuei Trasiees to ie appointed, i. 496, 49'7. Effect of appointment, i. 49T. Duties of trustees, i. 498. General provisions, i. 499. nl. DiSOHAR&E FROM DEBTS — TWO-THIRD ACT. History of the statutory law on the subject, i. 499. The statute will be strictly construed, 1. 499. Who may ie discharged, 1. 499, 500. PeUiion, and by whom signed, i. 500. Petitioning creditors, i. 501 to 504. Corporatioixs, as creditors, i. 501. Executors and administrators, as creditors, i. 501. Trustees, assignees, and receivers, as creditors, i. 502. Creditors of copartnership firm, i. 502. Creditors residing out of this State, i. 502. Creditors having the body of their debtor in execution, i. 502. Creditors purchasing claims for less than their face, i. 502. (Security for debts must be relinquished by the petitioning creditor, i. 503. Affidavits of petitioning creditors, i. 504, 605. Insolvents affidavit, i. 505, 506. Insolvents schedule, i. 50.6. What the schedule to contain, i. 506, 507. Effect of omissions in schedule, i. 507, 508. Officers to whom applications to be inade, i. 508. Order to show cause, and for publication of notice, i. 609, 510. PubUcation amd service of notice, i. 510. The due publication and service necessary to give the officer jurisdiction, i. 510. Form and service of notice, i. 510, 511, 512. How notice published, i. 511. The fees for printing notice, i. 511. How time for service is computed; i. 512, and note. Eearingbefore the officer, and proceeding i thereon, i. 512 to 515. Witnesses, and evidence on (lie hearing, i. 515. Efect of changes in debtor's property after his petition is presented, i. 516, 517, note. When insolvent debarred from bing discharged, i. 517, and note. Assignment, and to whom made, i. 518, 519. Efect of the assignment, i. 520, note, 521. Discharge, and when granted, i. 521. Recording of discharge and other papers, i. 522. Effect of the discharge, i. 522, 523, not;s, 524 to 527. Effect of the dischcvrge wpon the creditor's remedy, i. 527. Effect of the discJiarge as evidence, i. 528. Pleading the discharge, i. 529, 530. Discharge, when void, i. 530 to 532. Am^ending proceedings am,d waiver of difect. i. 5?.;?, ■o'<''- Certiorari to remove proceedings, i. 533, 5 "'-I. Review in Oawrt of Appeals, i. 534. 688 INDEX. T^rSOLTEN'T DEBTORS, PROOEEDIITGS BY AND AGAINST.— Coptinucd. General provisions, i. 534, 554. IV. Peoceedixgs to compel assignments by imprisoked debtors. ill wliat cases, i. 535. Peiition mid affidamt. \. 535. Officers to whom application to ie made, i. 535. Order fm- creditors to ojpiiear, i. 535. Notice to he piiUiilied and served, i. 535. Hearing, and proceedings thereon, i. 5'iQ, and note, SSt. Deltor to make an account, inventoryj and assignment, i. 5ST. Proceedings upon rendering the accoimt, &c., i. 538. Discharge, ivhen granted; and its effect, i. 538. When officer to make assignment of dsbtor's property, i. 539. Effect of such assignment, i. 539. When dtbior prechided from oUainiiig discharge, i. 539. Proceedings if debtor and his creditors petition, i. 540. Property assv/ned by officer to vest ii. (issigne> ii. 64. Difference between alternative writ and order to show cause, ii. 64. The application for alternative writ is either ex parte or on notice, ii. 65. If peremptory writ applied for, notice must be given, u. 65. Alternative manda/mus, ii. 65 to 68. If it is granted, an order must be entered with clerk, ii 65. How the alternative writ is directed, ii. 65, 66, note. What it must contain, ii. 66, 67. Where it should be made returnable, ii. 68. How tested, signed, and sealed, ii. 68. When, and how served, ii. 68. Amendment of writ, ii. 68, 69. Motion to quash or to set aside the writ, ii. 69. Proceedings if retwn to writ is not made, ii. 69. Further time to make rek/m, ii. 70. The return, ii. 70. Who to make return, ii. 70. When return to be made, ii. 70. What the return should contain, ii. 70, 71. Remedy if it contains improper allegations, or is otherwise defective, ii. 7 1 to 73. Whether it should be verified, or signed, ii. 71. Amendment ofretwm, ii. 72, and note. Motion for a further retwn, ii. 72. Motion to guash amd to strrike aid return, ii. 72. Notice requiring relator to demv/r or plead to return, ii. 73. Former practice on tbis subject, ii. 73, note. Proceedings if relator does not demv/r or plead, ii. 73. Either party may notice for argument, in such case, ii. 73. The practice changed by the new rules, ii. 73, note. Effect of omitting to demur or plead, ii. 73. Demwrrer, pUa, Tiie complaint, ii. 116. What it should contain, ii. 116, 11'?. Service of svmimons on the defendcmt, ii. 118. Proceedings if defendant doei not appear or answer, n. 118 to 121. Who may defend, ii. 121. Answer of {lie defendant, ii. 122, 123. The issues, and trial thereof, ii. 123 Amendments, ii. 124, 125, and note. Abatement oftlie action, and effect (hereof, ii. 125. Seceicer, pending the IMgatim,, ii. 126. I. PeOOBEDINGS if actual PARTITION" IS DBOKBED. Judgment declaring rights of parties, &c., ii. 127. Partition inpa/rt; setting off shares or proceeds tempora/rH/y, ii. 128. Shares may be set off to parties in common, ii. 129. Commissioners to be appointed, ii. 130. Commissioners are named by the plaintiff, ii. 130. Proceedings in case of vacancies, ii. 130. Oath of commissioners, ii. 130. Proceedings of the commissioners, ii. 130. JTotioe of proceedings to be given to parties interested, ii. 130. How commissioners to make partition, ii. 131. All the commissioners must meet together, ii. 132. Compensation for equality of partition, ii. 132, and note. Partition of interest of tenants for life, il. 132. Whether a widow's dower may be admeasured to her in proceedings for partition, ii. 105, 132. Pees amd expenses of commissioners, swveyors, &c., ii. 13.'i. The commissioners must look to the plaintiff for their fees, ii. 133. Ooimmmsioners'' report, ii. 133. What it should contain, ii. 133. Must be proved or acknowledged, the same as deeds, ii. 133. Setting aside report, ii. 134. Judgment on report, ii. 134. Effect of judgment of partition, ii. 134; 135. Recording the record of judgment, ii. 135. n. Pkocebdings for a sale of the premises. 1. Proceedings for a sale by commissioners, ii. 136, A sale is only authorized where a partition c.innot be made without great prejudice to the owners, ii. 136. ' Meaning of the term prejudice, ii. 136. In what cases a sale will be authorized, ii. Vid, 131. When sale will be directed to be made subject to rights of lessees, ii. 13T. Part of the lands may be sold and part divided, ii. 137. 704 INDEX. PARTITION.— Continued. And so, a portion of the premises may be allotted to one of the parties and the shares of the other parties sold, ii. 131. Shares may be temporarily set off, ii. 138. Sales where there are infant plaintiffs, ii. 138. Sales may be had from time to time, as the interest of parties requires, ii. 137. 2. Proceedings for d sale by a referee, ii. 138 to 141. Reference may be ordered, ii. 138. Practice under rules 78 and 79, ii. 138. Questions to be considered in determining whether a sale is necessary, ii. 140. The abstracts of title should be produced before the referee, ii. 140. Creditors to le hrought in; reference as to liens, &c., ii. 142. Reference to ascertain incumbrances, ii. 142. Such reference not indispensable, ii. 142. Proceedings upon the reference, ii. 142. Advertising for liens, &c., ii. 143. This is not necessary, if there are no claims, ii. 143. Ordei- directing moneys to le drought into court, ii. 144. Terms of credit, ii. 144. Safe of dower or other Ufe estate in premises, ii. 144. Notice of sale, ii. 145. How notice advertised, ii. 145. The rule of the Supreme Court, providing for a notice of three weeks in the city of New Torls, does not apply to sales in partition, ii. 145. Proceedings on the sale, ii. 146. When order staying sale will be granted, ii. 147. How premises to be sold, ii. 146. The commissioners, &o., cannot be interested in purchase, ii. 146. Terms of credit, and how purchase-money secured, &c., iL 146. How the securities to be disposed of, ii. 146, 147. Re/port of sale, ii. 147. Order thereupon, ii. 147. CompeUing purchaser to complete the purchase, iL 147. The cases stated where he would be compelled to complete, ii. 147, 148. Effect of conveyance, ii. 148. It bars all persons interested who were made parties to the proceeding, ii. 148. . It operates to cure any irregularity in the notice of sale, ii. 149. Its effect upon judgment and other creditors, ii. 149. Costs amd expenses of the aetion, ii. 149, 158. Proceeds of sale, ii. 149. How divided, ii. 149. If brought into court, they must be deposited with, treasurer, ii. 150. The proceeds are personal property, ii. 150. Shajres of infants, ii. 150. When paid, how invested, &c., ii. 150, 151. Proceedings to obtain moneys, after the same are paid into court, ii. 150. IITOEX 705 PARTITIOlSr.— Continued. Sha/res of married women, ii. 151. The proceeds are to be paid to her and not to her husband, ii. 151. How disposed of, if she is an infant, ii. 151. Moneys realized from her inchoate right of dower, ii. 151, 151. Shares ofunhmmn and absent owners, ii. 151. Shares of tenants for life, ii. 151. Security to refund, ii. 152. In whose name securities to be taken, ii. 152. Treaswer to receive money, and account, &c., ii. 153, and note. Row investments to be made, ii. 153. The securities cannot be discharged, &c., without the order of the court, ii. 153. Suits in reference to such investments, ii. 153. Application to court for moneys, ii. 153. Distribution of money s ; orders for paying out moneys, ii. 154. Treasurer to have incumbrances discharged, ii. 155. Other parties not to be delayed, ii. 155. Proceedings on sale of dower or other life estate, ii. 155. How the proportions of the proceeds to be ascertained, ii. 156. Bights of married women and others, havirhg future interests im property, ii. 15T. The wife's inchoate right of dower is divested by a sale, if she is a party to the proceedings, ii. 157, 104. How the value of such right Is ascertained, ii. 157, note. When ascertained, it is to be paid directly to her, ii. 158. But she may release it to her husband, ii. 158. Effect of release, or payment, &c., ii. 158. Costs of the action, it 158, 149. . How apportioned and allowed, ii. 158. ' If the premises are sold, the costs are to be paid in the first instance to the plaintiff or his attorney, ii. 159. What law is to govern the allowance, ii. 160. Fees and expenses of commissioners, &c., ii. 133. Appeals, ii. 160, 161. The paa-tition of infants' estates, ii. 161, 162. Partition of estates of hmatics, ii 162, 163. Partition when State is interested, ii. 163. Prmision as to claims barred by statute of limitations, ii. 163. POOR PERSONS, PROCEEDINGS FOE LEAVE TO SUE AS SUCH. Applications are not to bo encouraged, ii. 165. The statute will be strictly construed, ii. 165. Who may petition, and in what cases, ii. 165. What motion is fovmded wpon, ii. 166. Application to the court, and proceedings thereon, ii. 167. If order granted, effect thereof, ii. 167. When order rtvay be annulled, ii. 1 67. Bringing action, ii. 167, 168. VOL. II. — 15 706 IXDEX. PROHIBITION. The object of the writ of prohibition, ii. 86. What court may issue it, ii. 86, and note. How directed, ii. 87. When the writ issues, ii. 87. Cases stated, ii. 87. The court grants or denies the writ in its discretion, ii. 87. Cases where it will not issue, stated, ii. 87, Application for the writ, ii. 88. It is founded on affidavits and notice of motion, ii. 88. What the affidavits should contain, ii. 88. Practice on the application, ii. 88. The writ, ami how directed, &c., ii. 88. Service of the writ; ii. 88, and note. Return to writ, ii. 88, and note. Notice requiring relator to demur or plead, ii. 89. The proceedings thereupon, ii. 89. The former practice on the subject, u. 73, note. Proceedings ifpa/riy adopts the return, ii. 89. Proceedings if the retwn is not adopted, ii. 89. Motion to quash the writ, ii. 90. Amendments, ii. 90. Coits, ii. 90. Appeals and writs of error, ii. 90, 91, note. PROCEEDINGS BT ACTION TO RECOVER POSSESSION OF LAND FOB NON-PATMBNT OF RENT. In what cases this remedy is proper, ii. 187. 1. Proceedings at the common law, ii. 187, 188. 2. Proceedings iy statute, ii. 188, 189. Notice of intention to re-enter, and service thereof, ii. 190. The proceedings in the action, ii. 190. Judgment, amd execution therein, ii. 191. Staying proceedings, ii. 191. When premises to lie restored to tenant, ii 191. Tenant, when ha/rred, ii. 192. Mortgagees, how relieved; effect of forecloswe, ii. 192. Use of premises by lessor, ii. 193. PROCEEDINGS AGAINST LEGATEES, NEXT OP KIN, HEIRS, DEVISEES, JOINT DEBTORS, AND TENANTS. I. Actions by and a&ainst legatees and next op kin, and against HBlBa AND DEVISEES. I. Actions hy legatees and next ofhin. When legatees cmd next ofMn may sfm, i. 582, and note. Bond to ie given, i. 582. Suits hy minors, i. 583. Action by legatee to be referred, i. 583. Proceedings upon the referemx, i. 583. INDEX. 70"! PROCEEDINGS AGAINST LEGATEES, Ac— Continued. Costs, and how to be paid, i. 5S3. Abatement from legacies; and when legatee may site again, i. 583: 11. Actions against next of kin. When Actions are proper, i. 584. Against whom actums may be brought, i. 585, and note a. Recovery in the action, and hmu apportioned, i. 585, and note b. Form uf judgment and execution, i. 586, and note. Hoiu defendants exonerated from, judgmerni, i. 586. Action between next oj kin for contribution, i. 586. ///. Actions against legatees. By and agamst whom the action may be brought, i. 587. Requisites to recovery, i. 587. Apportionment of recovery, and costs, i. 588. Form of judgment and execution, i. 588, and note. Sow defendants exxmeraied from judgment, i. 588. CmitribuUon by legatees, i. 589. IV. Actions against heirs. When creditors may recover their claims of the legatees, i. 587. Liability of heirs at the common law, i. 589. Administrators, &o., at the common law, had no control over the real estate of their intestate, i. 589. Now they may obtain leave to sell, i. 589. When the action against heirs is in rem, i. 590. The debts of the decedent are not a lien upon his lands, i. 590. Zmbility of heirs and devisees, i. 590, note. Within what time suits can be brought, i. 590, 592. Who to be joined as defendants, i. 592, and note. What ihe creditor must show to entitle him to recover, i. 593. When proceedings wiU be stayed, i. 594. Action not to be delayed by reason of infancy of hews, i. 595. Complaint ; what to contain, i. 595. Proceedings on the trial of the action, i. 595. Judgment, execution, and levy, i. 596 to 598. Proceedings if heir has aliened the lands, i. 598, 599. V. AcHons aga/inst devisees. The rules of the common law as to liability of devisees, i. 599. Liability of devisees, extent thereof , and what must be shown to chairge them, i. 600, and note, 601. Alienation of lands by devisee, i. 601, note. Actions against devisees by after-born children and by witnesses to wills, i. 601. VI. General provisions applicable to these actions. . Order of preference in the payment of debts, i. 602. Defenses by next of kin, legatees, heirs, and devisees, i. 602. Recovery of proportion, i. 603, and noie. Evidence of payments, i. 603, note. II. Peoceedings asaiitst joint debtoes, personal kepeesentatives, heies, DEVISEES, LEGATEES, AND TENANTS. This proceeding is authorized and regulated, by the Code of Procedure, i. 604. 708 INDEX. PROCEEDINGS AGAINST LEGATEES, &c.— Continued. An additional remedy is authorized by act of 1850, in favor of judgment credit- ors, i. 604:, note. Proceedings against joint debtors, i. 605. Proceedings against heirs, devisees, legatees, or tenants, i. 606. Who should be made parties, i. 606. Within, what time proceedings may be commenced, i. 60'7. Svmmons and affidavit, i. 607. Answer of defendant, i. 608, 609. Subsequent pleadings, &c., same as in actions, i. 609. Trial of issue mid judgment, i. 610. Execution, i. 610. Costs of the proceedings, i. 610. QUO WARRANTO. The former writ of quo warranto described, ii. 195. That writ is abohshed, and an action substituted in its place, ii. 196. I. The different cases in which actions mat be BKOtrasT. 1. Actions to vacate cha/rter by direction of the Legislatwe, ii. 196. 2. Actions to vacate cha/rter by leave ofihe cowrt, ii. 196, 197. 3. Actions against persons uswping public offices, &c., ii. 198. 4. Actions to vacate letters patent, ii. 199. II. Peooeedings in the action. Parties to the action, ii. 199. Summons and complaint, ii. 200. When defendant may be arrested and held to bail, ii 201. Trial, and proceedings thereon, ii. 201, 202. Judgment in the action, ii. 202, 203. Proceedings if judgment is rendered in favor of party claimin^g an offioe, ii. 203. Costs of the action, and how collected, ii. 204. Reslirakdng corporation, and appointment of receiver, ii. 204. Copy ofjudgment-roU, when to be filed, ii. 204. Entry of judgment relating to letters patent in records of the Commissioners of Land Office, ii. 205. Aciions for forfeiture of property to the people, ii. 205. Appeals, ii. 205. RAILROADS, PROCEEDINGS TO ACQUIRE LANDS FOR RAILROAD PUR- POSES. The right of railroad companies to acquire title to lands, ii. 211. In its exercise, the statute must be strictly followed, ii. 212. The proceeding to acquire title is a special proceeding, ii. 212. la what cases application to be made, ii. 212, 213, and notes. Petition and notice, ii. 213. Contents of petition, ii. 213, 214. „ The petition must be signed and verified, ii. 214. Petition and notice to be served, ii. 214, 215. How petition, &c., to be served, ii. 215, 216. Gua/rdian or com/mittee for infants or hmaiics, ii. 216. INDEX. 709 RAILROADS, &o.— Continued. Attorneys to be appointed for wnknown and other owners, ii. 21'!. AppUcation to comrt, and proceedings (hereon, ii. 218. The commissioners and their proceedings, ii. 218 to 222. The commissioners to take and subscribe an oath, ii. 219. They may issue subpoenas and administer oaths, ii. 219. Notice must be given to parties interested, ii. 219. Proceedings of the commissioners, ii. 219. How compensation is determined, ii. 219, 220, 22] Commissioners' report and fees, ii. 222. Motion to set aside report, ii. 222. Order confirming report, ii. 223, 224. Effect of the order, &c., ii. 225, 226. Power of court, amendments, 'TS AND OTHEES. In what cases, ii. 281 to 286. The statutory provisions, ii. 281, 282. The conventional relation of landlord and tenant must exist between par- ties, to warrant the proceedings, ii. 282. When that relation exists, ii. 282, 283, 284. Proceedings not warranted on expiration of term by forfeiture, ii. 284. Wten tenant may be removed in cases of non-payment of rent, ii. 284. In cases of persons holding over after sale on execution, ii. 285. In other cases, ii. 284, 285, Who may institute the proceedings, ii. 286. Against whom the proceedings may be instituted, ii. 28T. Officers having jurisdiction in this proceeding, ii. 287. "When proceedings may be continued before another officer, ii 288. Practice in the district court of the city of New York, ii. 288. Demand of rent, or notice to pay, iL 288. How and upon whom notice, &c., to be served, ii. 288, 289. Whether the demand must be according to the common law, ii. 289, 290. Affidavit of termination of tenancy, demand of possession, &c., ii. 290. Notice to quit, and how served, ii. 290. What is a mouth's notice, ii, 291. When tenant not entitled to notice, ii. 291. Notice to tenants from year to year ii. 291. What amounts to a waiver of notice, ii 291. What is a tenancy at will, ii. 292. Affidavit to rmrmve tenant, ii. 292 to 295. Particularity required in affidavit, ii. 292. How it should be drawn, what to contain, &c., ii. 292 to 295. Effect of material omission in affidavit, ii. 292. The affidavits cannot be twice used, ii. 295. The summons, ii. 295. What it should contain, how directed, &c., ii. 295, 296. How summons to be served, dec, ii 296. 712 INDEX. SUMMARY PROCEEDINGS, Ac— Continued. What the defendant to do in certain cases, ii. 297. If the tenant do not defend, warrant to issue, ii. 297. Denial by defendant of landlord's affidavit, ii. 297. Adjownments, ii. 298. Suhpcmas for witnesses, ii. 298. IHcd of the issue, and proceedings thereon, ii. 299, 300, and note. What the defendant may show in defense, ii. 301. Proceedings when before a justice of the peace, ii. 301. Judgment and warrant of possession, ii. 302. Effect of issuing wairramt, 11. 302. Staying proceedings on payment of rent, &o., Ii. 303. In oases of proceedings for non-payment of rent, ii. 303. In cases where tlie tenant has taken the benefit of any insolvent act, or has been discharged from imprisonment, ii. 303. In oases of sales by execution, 11. 304. Redeeming the premises in certain cases, ii. 304. Appeals to the county court, 11. 305. An appeal only allowed from decision of justice of peace, ii. 305. The decision may also be reviewed by writ of certiorari, 11. 805. Security must be given on the appeal, &c., 11. 305. How appeal taken, &c., 11. 30G, 307. The decision of the county court is final, 11. 307. Proceedings subsequent to the appeal, 11. 307, 308. Certiorari to remove proceedings, ii. 308. The Supreme Court may award certiorari, &c., ii. 308. Who may have the writ, 11. 308. What the return to the writ to show, U. 308. What questions may be raised on the return, ii. 308. Proceedings on the hearing and subsequent thereto, ii. 308, 309. The certiorari does not stay the proceedings, 11. 309. But the effect of the judgment Is stayed in respect to everything except the issuing of the warrant, 11. 309. Injunction staying proceedings, and for other reUef by action, 11. 309, 310, note, 311. Review by the Court of Appeals, 11. 311. Awarding restitution, 11. 311, 312. Costs and expenses of the proceedings, 11. 312. The prevailing party is entitled to costs, 11. 312. What are the costs, 11. 312. Recovered by action, and when proceedings stayed, 11. 312. Costs upon certiorari, and how regulated, 11. 313 ; i. 14, note 6. Costs before justices of the peace, 11. 313. Damages on reversal of proceediTigs, 11. 313. Saving of rights, 11. 313. II. Reoovbet of possessiou" op peemisbs deserted. Viewing premises ; notice totena/nt, 11. 314. The subsequent proceedings, 11. 314. Fees of the justice, 11. 314. Appeal by tenant, ii. 315- INDEX, 713 TENANTS, see (mte,- Summary Peooeedinqs to bemovb Tenants, and Proceed- ings AGAINST LBaATEBS, NEXT OP KiN, ETC. TWO-THIRD ACT, see ante, Insolvent Debtoes, etc. VESSELS, see (mte, Lien Law : Ships and Vessels. WRITS OF ERROR, see ante, Appeals in Special PEOOEEDiNas. INDEX TO FORMS. PAS a ADMEASUREMENT OF DOWER. Petition for admeasurement . . . 31'! Notice of application for admeasurement . . . . 318 Notice by heirs, &c., to widow . . . . .318 Petition by heirs, &c., for admeasurement . . . . 318 Petition for appointment of guardian . . . . .319 Order appointing guardian . . . .319, Order for admeasurement, and appointing commissioners . .320 Oath of commissioners . '. . . . 320 Report of commissioners ... 320 Notice of motion to confii-m report .... 321 Order confirming commissioners' report ... . 322 Notice on appeal . . 32? Bond of appeal . . . 323 Order of reversal ..... . 324 Another form of order of reversal, where the right of dower is in mines which have been worked . . . .324 ARBITRATIONS. General submission to arbitration Bond of arbitration Like bond — award by an umpire Condition providing for a third arbitrator Arbitrator's oath Notice of hearing before arbitrators Oath on appUcation for a subpoena Subpoena to appear before arbitrators Oath of witness Revocation . Notice of revocation Award AfBdavit proving the award Affidavit proving the bond of arbitration AfBdavit proving the agreement of submission Notice of motion to confirm the award 325 326 327 327 328 328 328 329 329 329 329 330 331 331 332 332 716 INDEX TO POEMS. PAOH ARBITEATIONS.— Continued. Notice of motion to vacate the award ... . 333 Notice of motion to modify or correct the award .... 333 Order confirming award, and for judgment .... 333 Order vacating award . ... .334 Judgment record . ... 334 ARREST AND BAIL. Affidavit for arrest ; personal injuries to plaintiff . . 336 Like affidavit — action to recover possession of personal property . 336 Like affidavit — debt fraudulently contracted . SST Like affidavit — money received in a. fiduciary capacity . 338 Undertaking on arrest . . . • . 339 Affidavit of sureties . ... 339 Acknowledgment . . . ... 339 Proof by subscribing witness . . ... 339 Order of arrest ..... . 340 Undertaking by defendant on arrest . . . 340 Like undertaking — in an action for chattels . . . 340 Notice of exception to bail . . . 341 Notice of justification of bail . . . 341 Notice of other bail ... ... 341 Certificate of deposit with sheriff . . . . 342 Certificate of clerk that money has been paid into court . . . 342 Examination of bail ...... . 342 Allowance of bail . . . . 343 ATTACHMENTS UNDER THE CODE. Affidavit to obtain attachment (general form) . . . 343 Like affidavit against a foreign corporation . . . 343 Undertaking on attachment . . . 344 Warrant of attachment ... . . 344 Sheriff's return — ^indorsed on attachment . . 345 Inventory of property attached . . . 345 Order directing sale of perishable property ..... 345 Notice of levy on property not capable of manual delivery . 346 Order directing third person to appear and be examined . . 346 Notice of motion to vacate attachment . . . 347 Notice of motion to discharge attachment, on giving security . . 847 Undertaking on discharge of attachment . 347 Order vacating attachment on motion . . . 348 Order vacating attacliment, on security being given . . . 348 Execution to sheriff who made the levy under the attachment, but who has since gone out of office . ... 349 BOOKS AND PAPERS, PROCEEDINGS TO COMPEL DELIVERY OP, BY PUBLIC OFFICERS. Affidavit to obtain order to compel delivery of books, &c. . . 633 Order on apphoation to compel delivery of books and papers . 634 INDEX TO FORMS. 717 PAOK BOOKS AND PAPERS, &c.— Continued. ■Warrant of arrest ....... 635 "Warrant to search for books and papers . ... 636 CERTIORARI TO OBTAIN REVIEW OP PROCEEDINGS. AfiSdavit to move for certiorari . . . . .356 Certiorari to remove proceedings into the Supreme Court . 351 Certiorari — another form . , . . 358 Answer to writ on return of certiorari . . 358 Answer or return to certiorari — another form . . 359 Judgment record on certiorari . . , . 359 Judgment record on certiorari — another form .... 360 CERTIORARI, see post, Habeas Corpus akd Cebtiqraei. CLAIM AND DELIVERY OP PERSONAL PROPERTY. Affidavit under § 207 of the Code . . .350 Like affidavit — property claimed to be exempt from execution . 350 Requisition to be indorsed on affidavit . . 351 Undertaking by plaintiff's sureties ... 351 Notice of exception, and of justification of sureties . . 352 Undertaking by defendant to obtain a return of property . 352 Notice requiring return of property to defendant . . 353 Affidavit of claim of third person . 353 Notice to sheriff — claim of third person . . 353 Sheriff's notice to plaintiff — claim of third person . . 353 Undertaking by plaintiff to, sheriff— claim of third person . . 354 Affidavit to recover possession of personal property — action in justice's court ....... 354 Undertaking by plaintiff's sureties — in justices' courts . . . 355 Requisition, to be indorsed on affidavit .... 355 Summons issued by justice ....... 356' Notice of exceptions to plaintiff's sureties .... 356 COMPROMISES BY JOINT DEBTORS. Release of one of two or more joint debtors . . . 527 CONTEMPTS. Affidavit of service of order to pay money, and of demand of payment 360 Order for precept to commit for non-payment of money. . 361 Precept to commit for nAn-payment of money . . 361 Notice to sheriff to return process, &c. . . . . . 362 Affidavit to obtain attachment against a sheriff . .362 Writ of attachment against sheriff .... 363 Order for a habeas corpus to bring up the defendant . . 363 Habeas corpus to bring up the defendant . . . 364 Affidavits to obtain attachment other than against sheriff, or for non-pay- ment of money . . .... 364 718 INDEX TO FOEMS. PAGE CONTEMPTS.— Oontmued. Order to show cause why defendant should not be punished for contempt 365 Notice of motion for an attachment . . .366 Order for an attachment . . . . . 366 Writ of attachment ; indorsement and officer's return . 366 Bond on attachment . . .... 367 Order for alias attachment where defendant fails to appear . 368 Order for arrest in proceedings supplementary to esecution ; on order to ezamine third party . . . . 369 Order directing prosecution of bond .... 370 Order on appearance of defendant, and directing interrogatories to be filed 370 Interrogatories to be administered to defendant . 371 Interrogatories to be administered to sheriff 371 Answer to interrogatories . . . 372 Order discharging attachment . . . . 372 Order convicting defendant of contempt, for violation of injunction . 373 Order convicting defendant of contempt, for violation of injunction — another form ..... .373 Order of commitment for refusal to testify . . . 374 Commitment by warrant . . 376 CORPORATIONS, PROCEEDINGS BY AND AGAINST. Petition by judgment creditor for sequestration of property 377 Notice of presentation of petition . 378 Order sequestrating property of corporation, &c. 378 Like order, and directing reference as to issues, &c. . 379 Bond of receiver ... . 380 Petition by directors for voluntary dissolution of corporation . . 381 Order thereon ... 382 Affidavit of publication . . . 383 Report of referee ... . 383 Order or decree for dissolution and appointment of receiver , . 384 ' The like, referring it to a referee to nominate or appoint a receiver . 384 CORPORATIONS, see post, Reugiotjs Coeporations. DEATH OP PERSONS, PROCEEDINGS TO DISCOVER. Petition ...... .625 Notice of presentation of petition . ... 626 Order thereupon ...... . 626 Referee's return ........ 627 Order on filing return . . .... 627 DETERMINATIONS OP CLAIMS TO REAL ESTATE. Summons .... .... 385 Complaint for determination of claim to real estate . . 385 DEVISEES, see post, PROOBEDmas against Legatees, Next of Kin, etc. INDEX TO FOEMS. JV) DISCHARGE OF MORTGAGES OF RECORD. Petition for discharge of mortgage of record Order to show cause Order of reference Referee's report Order discharging mortgage of record DISCHARGE, see post, Insolvent Debtors, etc. DOWER, see ante, ADMEASnREMENT op Dowee. FORCIBLE ENTRIES AND DETAINERS. Complaint and affidavit Precept for jury Notice to the defendant Affidavit of service of last notice Oath to jury of inquiry Oath to witnesses Inquisition .... Award of restitution, after inquisition Writ of restitution . Traverse of inquisition . Precept for jury to try traverse Subpoena for witnesses Oath of jurors Oath of witnesses Award of restitution after verdict' . Writ of restitution after verdict Certiorari to remove proceedings Bond on allowance of certiorari Answer or return to certiorari Traverse in the Supreme Court Judgment record on certiorari Writ of restitution PAGI- 41!' 42" 421 421 421 386 38? 387 388 388 388 389 390 390 391 391 392 392 392 393 393 393 394 394 395 395 396 FORECLOSURE OF MORTGAGES BY ACTION. Summons and notice of object of action . . . 397 Affidavit to obtain order of publication . . . 398 Order directing service by publication . . 393 Notice of Us pendens . . . 399 Complaint in action to foreclose mortgage ,. . 399 Affidavit to Obtain judgment or order of reference on default 401 Order oi" reference — all duo, and no infants . 401 Affidavit to obtain order of reference, where there are infant or absent defendants ...... .401 Order of reference thereon — infant or absent defendants 402 Affidavit, whole sum not due — absent or non-resident defendants 402 Order of reference — whole sum not due — absent defendants, &c. . 40S Referee's report — whole amount due ..... 403 720 INDEX TO FORMS. • PAOB FORECLOSURE OF MORTGAGES BY ACTION'.— Continued. Referee's report — whole sum not due — property cannot be sold in parcels 404 Referee's report — infant or absent defendants . . 405 Petition by plaintiff for appointment of guardian ad litem . . 405 Like petition by infant defendant under fourteen years of age . 405 Order appointing guardian ad Utem . . 405 Judgment on default — whole amount due . . . 406 Judgment — part only due — premises cannot be sold in parcels . 407 Notice of sale by referee . . 409 Conditions of sale ... . . 409 Referee's deed . . 410 Referee's report of sale . . ... 411 Order confirming report . . . .412 Complaint in action for strict foreclosure . . 412 FORECLOSURE OF MORTGAGES BY ADYEETISBMBNT. Notice of foreclosure by advertisement . 41 4 Affidavit of publication of notice of sale . . 415 Affidavit of affixing notice on court-house door . . . 416 Affidavit of affixing notice in clerk's oifioe ... 416 Affidavit of service of notice of sale . . . 416 Affidavit of sale . ... 417 Bill of costs on foreclosure . . • . 417 Notice of taxation of costs .... 418 Affidavit of disbursements . . . 419 FOREIGN WILLS— PROCEEDINGS TO FROYE. Petition for a commission to prove will . . ! 629 Order to heirs-at-law, &c., to show cause . . . 630 GUARDIANS, see post, Infants, peocebdings bt and against. HABEAS CORPUS AND CERTIORARI. Petition for habeas corpus, or certiorari, to inquire into the cause of deten- tion . . . 422 Another form of petition — by third party . 423 Another form, in case of infants ...... 423 Writ of habeas corpus ... . . 4^24 How writ indorsed ... . . 424 Writ of certiorari . . . . 424 Bond on serving vrrit . ... . 425 Petition showing that party may be carried out of the State, or may suffer some injury before writ can issue . . . 425 Warrant under the last form . . . 426 Attachment for disobedience to writ . . 427 Commitinent for disobedience of writ . 427 Precept for party illegally confined or restrained . 428 Return to habeas corpus . 428 Notice to party interested, of tho time and place writ is returnable 429 INDEX TO FOBMS. 721 HABEAS CORPUS AND CERTIORAEI.— Continued. Like notice to district attorney Writ of discharge ..... Order directing prisoner to be remanded Traverse or denial of return Bail bond ...... Order on return to certiorari, that the prisoner be bailed Recognizance under the last form Affidavit for habeas corpus, ad testijkancl/am . "Writ of habeas corpus, ad testificandum Bond on service of writ .... PAOR 429 430 430 430 431 433 432 432 433 433 HABITUAL DRUNKARDS, see post, Lunatics, Idiots, etc. HEIRS, see post, Peocbbdinos aaainst LEeATBBS, Next of Kin, etc. IDIOTS, see post. Lunatics, Idiots, and Habitual Drunkards. INFANTS, PROCEEDINGS BY AND AGAINST. Petition for appointment of general guardian (Supreme Court), infant over fourteen years of age ....... 434 Like petition — infant under the age of fourteen years . . 435 Order of reference . . . . . . . .435 Referee's report thereon ...... 436 Order appointing general guardian . . . • . 431 Bond of guardian ....... 438 . Petition for appointment of general guardian by Surrogate — minor over fourteen years of age . . . . • . , 439 Like petition — infant under fourteen years of age . . . .- 440 Affidavit of minor's property ..... 441 Order directing appointment of guardian . . . . .441 Bond of guardian ....... 442 Order appointing guardian on filing bond, &c. . . . . 442 Letters of guardianship . . . 443 Guardian's inventory and account current . . . 444 Petition calling general guardian to account .... 445 Notice to guardian ........ 44G Order of reference directing an accounting . . • . 446 Report of referee ........ 446 Order confirming report absolutely, or as modified . . 441 Clause directing removal of guardian, and reference to appoint another guardian ........ 447 Petition of guardian to be discharged from his trust . . . 448 The like, by next friend, to remove a guardian for misconduct . 449 Notice to guardian thereon ...... 449 Order of reference thereon ...... 450 Report of referee thereon .... . 450 - Order thereon, removing guardian,' appointing successor, and directing payment over to him of trust fund . . . . .451 VOL. II.— 46 722 INDEX TO POEMS. INFANTS, PROCEEDINGS BY AND AGAINST.— Continued. Petition for order to sell in behalf of infants . Affidavit of disinterested persons .... Order of reference, and for appointment of 'guardian . Bond of special guardian ..... Certificate of clerk ...... Referee's report ...... Order authorizing guardian to contract .... Report of special guardian, of agreement to sell Order confirming report of guardian, and directing a conveyance Deed by special guardian ..... Release of widow's dower, annexed .... Guardian's final report ..... Order confirming final report ..... Petition to compel specific performance of contract of ancestor Notice of motion to compel specific performance by infants, &c. Order directing specific performance Petition to compel infant trustee to convey Notice of motion to compel infant trustee to convey Order directing conveyance by infant trustees . INFANTS, see ante, Habeas Cobpus and Cebtioeari. INSOLVENT DEBTORS, PROCEEDINGS BY AND AGAINST. Application to appoint trustees of estate of debtor confined for crime Affidavit to accompany the above application . Appointment of trustees ..... Petition for discharge from debts — Two-Third Act Affidavit of residence of insolvent to be annexed to petitioa Affidavit of creditor to be annexed to petition . Like affidavit of creditor who is a member of a firm Schedule of creditors ..... Inventory of property [being part of schedule and to be annexed to No. 289] .... Insolvent's affidavit Order to show cause .... Notice to creditors .... Order to be published Affidavit of service of notice Affidavit of publication of notice to creditors Demand of a jury and specifications of objections Order thereupon .... Summons for jury , . ' . Assignment ..... Assignee's certificate .... Clerk's certificate of recording of assignment Assignee's oath of office .... Discharge ..... INDEX TO FORMS. 723 INSOLVENT DEBTORS, PROCEEDINGS BT AND AGAINST, Certiorari to remove proceedings into Supreme Court Petition for discharge from impriaonment on execution Notice to creditors .... Affidavit to be indorsed on petition . Affidavit of service of petition, account and notice Order to bring prisoner before the court Order directing assignment Assignment to be indorsed on petition Certificate of assignee .... Order discharging prisoner .... — Continued. 4'?9 480 481 481 482 482 482 483 483 483 JOINT DEBTORS, see post, Peoceedings against Leuatbes, Next op Km, etc. LANDLORD AND TENANT, see post, Summaet Peooeemngs, bto. LEGATEES, seepost, Peooeedings against Legatees, Next of Km, Eia LIEN LAW: NEW YORK CITY. Notice of lien by contractor ...... 488 Notice of lien by other person than thp contractor .... 489 Contractor's notice of foreclosure of lien .... 490 Notice of the foreclosure of lien by other person than a contractor . 491 Affidavit of the service of the notice ..... 491 Complaint, or statement of claim, of contractor against owner . .492 Complaint, or statement of claim, against both owner and contractor . 493 Judgment on faUure of owner to appear ..... 494 Satisfaction of lien . . . . . . , . 495 LIEN LAW- GENERAL ACT. Contractor's notice of lien ....... 495 Notice of Ken by other person than contracted .... 496 Contractor's notice to enforce lien ...... 496 Notice to enforce lien by other person than contractor . . . 4S1 Claimant's bfll of particulars ...... 498 Affidavit of service of notice and bill of particulars . . . 498 Affidavit of facts justifying service by publication .... 499 Affidavit of publication of notice ..... 499 Affidavit of owner's default ....... 499 Judgment on failure of owner to appear .... 500 Answer of owner, and bill of particulars .... 500 Judgment on issue and trial ...... 501 Execution against the property covered by lien . , . . 502 Execution against real estate generally ..... 503 Contractor's notice to enforce Hen in justice's court .... 503 Like notice in justice's court, by other person than contractor . . 504 Claimant's bill of particulars in justice's court . . . .505 Affidavits of service of notice, &o., on failure to appear injustice's court 505 Affidavit of owner's default m justice's court . . . .505 724 INDEX TO FOEMS. LIEN LAW: GENERAL ACT.— Continued. Owner's answer before justice ...... 506 Notice requiring claims to be presented ..... 606 Notice requiring claimant to commence an action . . . 606 Affidavits of service of No. 353, and that action is not commenced . 50T Satisfaction of lien ... . . 501 LIEN LAW: SHIPS AND VESSELS. Specifications of Hen Application for warrant . Application for warrant against proceeds Undertaking by applicant Warrant of attachment Notice to parties interested — to be published Notice of application to discharge warrant Bond to obtain discharge of warrant Order discharging warrant . Complaint on bond Affidavit to obtain order of sale Affidavit, notices, &o. . Order directing sale . . , Notice of distribution — ^to be published . Sherifi''s return Answer contesting applicant's claim Order of reference . Order directing distribution Like order, where claims have been contracted Like order, in respect to prior uncontested claims Like order, in respect to subsequent uncontested claims Notice of application for surplus proceeds Application to discharge lien — no warrant issued Order granting leave to bond the claim . Order directing discharge of Uen Assignment of lien .... 603 508 510 610 611 511 512 612 513 514 516 616 516 51T 61'! 518 519 519 619 520 620 621 521 622 522 523 LIMITED PARTNEESHIPS. Certificate of formation of limited partnership . . .623 Affidavit of a general partner . ' . . . . . 524 Designation, by clerk, of newspapers in which to publish notice . .624 Notice of the terms of partnership — ^to be published . . . 525 Clause in partnership agreement, providing for continuance of business by surviving partners . . . . . 625 Notice of dissolutian ....... 626 Certificate showing additional special partners added to the firm . .626 Notice of sale by special partaier . . . 626 LUNATICS, IDIOTS, AND HABITUAL DRUNKARDS. Petition for a commission of lunacy Petition for commission on the ground of extreme old age 621 629 INDEX TO FORMS. 725 LUNATICS, IDIOTS, AND HABITUAL DRUNKARDS.— Continued, Petition for a commission of idiocy . . . , . .529 Petition for a commission against an habitual drunkard . . 530 Petition by overseers of the poor for a commission against an habitual drunkard ........ 530 Order for a commission ....... 531 Commission to inquire of lunacy, &o. . . . . . 532 Precept to sheriff to summon a jury . , . . . . 533 Notice to lunatic, &c., of execution of commission .... 533 Affidavit of service of notice ...... 534 Notice to produce lunatic, &c. ..... . 534 Subpoena for witnesses ....... 534 Oath to jurors ........ 535 Oath of witnesses ....... 535 Inquisition ......... 536 Notice of motion to confirm finding of jury .... •53'? Petition for appointment of committee ..... 537 Order confirming finding of jury, appointing committee, &c. . . 538 Referee's report as to committee ...... 639 Order confirming referee's report .... 540 Bond of committee ........ 541 Petition for leave to traverse, or for an issue .... 541 Affidavits on application for an issue ..... 543 Notice of motion for leave to traverse, &c. . . . 544 ' Order directing an issue . . .... 544 Petition to supersede commission ..... 545 Notice of motion to supersede commission ..... 546 Order to supersede commission- ...... 546 Order of reference on motion to supersede commission . . . 547 Referee's report thereon ...... 547 Order superseding commission on referee's report .... 548 Certificate of officer to affidavit or petition of lunatic, &c. . . 548 Petition for order directing payment of claim out of lunatic's estate 549 Notice of motion to compel payment of claim .... 550 Order thereupon . . . . , . . . . 650 Annual inventory and account current, to be rendered by committee . 551 Petition for a sale of real estate to pay debts .... 552 Order of reference tJiereon ...... 553 Notice by referee of proceedings before him .... 553 Referee's report as to the necessity of a sale, &c. . . . 554 Order to confirm referee's report ...... 555 Report of sale by committee ...... 555 Order confirming sale, and directing conveyance .... 656 Bond of committee on sale of real estate . . . . 557 Deed of committee ........ 557 Petition for sale of real estate under the act of 1864 . . . 558 Order for security, and directing reference — act of 1864 . . . 559 Bond of committee, on sale, under act of 1864 . . . 559 Certificate of clerk; referee's report, and other forms — act of 1864 . 560 726 INDEX TO FORMS. MANDAMUS, WBIT OF. Affidavit on application for mandamus ..... 560 Notice of motion for a writ of mandamus . . . . .561 Order that a mandamus issue, or that the defendant show cause . 561 Order to show cause why mandamus should not issue . . . 561 Alternative mandamus — general form ..... 562 Answer or return to alternative writ . ' . . . . 563 Notice requiring relator to demur or plead .... 563 Notice of hearing, on failure of relator to demur or plead . . . 563 Judgment record on mandamus . . . . . .564 Peremptory mandamus — ^general form . " . . . .565 MECHANICS' LIENS, see anU, IrBN Law, etc. MOETGAGES, see ante, FoKEOLOStntB of MoETaAUES, etc., and Discharge op MOETSAGES. NAMES, PROCEEDINGS TO CHANGE. Petition ......... 628 Order authorizing change of name . . . . .628 PARTITION. Petition by infant for leave to commence an action for partition, and for the appointment of a guardian . . . . . .510 Order of reference thereon . . . . . . 571 Referee's report . . . . . . . .511 Order confirming report, authorizing action, and appointing guardian ad litem, ......... 512 Summons ........ 5l3 Notice of object of the action . . . . . .573 Complaint for partition ....... 574 Complaint for partition — another form ..... 575 Notice of & peradsTis ....... 577 Affidavit of filing notice of Zis|)en(fe7W ..... 578 Petition by relative of infant defendant for appointment of guardian ad litem ........ 578 Petition of plaintiff or other party to appoint guardian for infant defendant on his neglect to apply ...... 579 Notice of application for appointment of guardian . . . 580 Order appointing guardian . . . ... . . 580 Bond of guardian ad Utem ...... 580 Af&davit that no answer has been received, &c. . . . . 581 Like affidavit — all the defendants of full age . . . . 581 Like affidavit — ^where there are infant, absent, and unknown defendants . 582 Like affidavit — where a sale of the premises is desired . . 582 Affidavit that two or more parties desire their shares set off in common . 583 Notice of motion for relief demanded in the complaint, and for order of ref- erence, &c. ....... . 583 INDEX TO FOEMS. 727 PARTITION.— Oontiiiued. Petition by a person not named as a party, for leave to appear and answer Order permitting petitioner to appear and answer .... Order for judgment on default — ^proof taken by the court Order of reference on default — ^no infants or absentees Like order, where there are infants, or unknown owners, or absentees, un- der rule 18 ...... . Order of reference, where parties desire their shares to be set off in com- mon ........ Order, where a sale of the premises is desired, under the T9th rule Order directing judgment of partition, and appointing commissioners, where one or more of the parties have answered^ and an issue has been joined, ^nd a trial had ...... Return of commissioners that partition cannot be made Order to bring in creditors, and of reference as to incumbrances, on the return by commissioners that partition cannot be made Notice of hearing before referee ..... Notice of hearing on the coming in of the report Advertisement by referee as to liens and incumbrances Referee's report as to incumbrances, &c., under the order, No. -495 Report of a referee where a partition only is sought Report of referee that partition can be made Report of referee, under rule 79, that a sale is necessary . Report of referee as to right of dower . » . Notice of filing report under- the 3 2d rule .... Exception to referee's report ..... Order directing a sale of the premises by commissioners . Order for partition, on the report of a referee, and appointing commissioners Order that shares may be set off to parties in common Order directing a sale of the premises by a referee — ^made on the report of a referee . • . .... Order in respect to the right of dower of a party Special clauses that may be inserted in a judgment Notice of sale in partition . . . • . Report of sale by oommissioners ..... Report of sale by referee ..... Oath of commissioners ...... Report of partition by oommigsioners .... Report in respect to compensation for equality of partition Notice of motion to confirm sale or partition Order confirming sale by commissioners .... Order confirming sale by referee •_.... Order confirming partition by commissioners, and for judgment on their report ....... Order directing compensation for equality of partition Another order as to costs, in case of actual partition . Commissioners' deed to purchaser ..... Referee's deed to purchaser ..... Referee's final report after a sale . . . . 583 584 584 585 585 586 586 58'? -589 589 590 590 591 591 592 593 594 596 596 597 597 598 599 600 602 602 604 604 605 606 606 607 608 608 609 609 610 611 611 P13 613 728 INDEX TO FOEMS. FXGB PARTITION.— Oontinued. Report as to widow's right of dower ..... 614 Order confirming final report . . . . . .614 Affidavit on application to court for moneys .... 615 Notice of sucli application ....... 615 Order to show cause ....... 616 Affidavit of service of notice, &c. . . . . . .616 Table for computing the value of a life estate . . . 617 Affidavit for motion to compel purchaser to complete sale . . 618 Notice of motion to compel purchaser to complete purchase . . 618' Order requiring a purchaser to complete his purchase . . . 619 Certificate of referee that purchaser still refuses to complete his purchase 619 Order of attachment against defaulting purchaser . . . .619 Order for re-sale, and that first purchaser make good the deposit . 620 Order for re-sale and discharge of purchaser .... 620 Affidavit by purchaser; motion to be relieved from purchase, on the ground of a defect of title . . . . . . .621 Order granting motion unless plaintiff amend and supply defect in the judgment . . . . . ... . 622 Assent by a wife to have her share paid to her husband . . 622 Consent by widow to accept sum in gross in lieu of dower . . 623 POOR PERSON, PROCEEDING TO OBTAIN LEAVE TO SUE, bto. Petition after action brought ...... 623 Notice of motion . . .... 624 Petition before action brought ...... 624 Order admitting party to prosecute as a poor person . . . 625 PROCEEDINGS AGAINST NEXT OF KIN, HEIRS, DBYTSEBS, JOINT DEBTORS, AND TENANTS. Summons against heirs, devisees, &o. . . . . . 484 Summons against joint debtors ..... 485 Affidavit to accompany summons . . ... 485 Complaint — creditor against next of kin .... 485 Complaint — creditor against legatee .... 486 Complaint — creditor against heir ..... 487 PROCEEDINGS BT ACTION TO RECOVER POSSESSION OP DEMISED PREMISES FOR NON-PAYMENT OF RENT. Notice of re-entry for non-payment of rent .... 631 PROHIBITION, WRIT OF. Notice of motion for writ of prohibition ..... 566 Affidavit on application, for writ of prohibition . . . 566 Order that a writ of prohibition issue ..... 566 Writ of prohibition ....... 567 Return to alternative writ of prohibition ..... 567 Notice requiring relator to demur or plead .... 668 INDEX TO FORMS. 729 PEOHIBITION, -WRIT OP.— Continued. "^"^ Notice of hearing on failure of relator to demur or plead . 668 Judgment record on prohibition . ... 568 Writ of prohibition — absolute ... . . 569 "Writ of consultation . . . . . . . 599 QUO WARKAJSTTO. Complaint in quo warranto, to determine title to an ofBce . . 632 Complaint in quo warranto — another form . . . . 632 RAILROADS, PROCEEDINGS TO ACQUIRE LANDS, etc. Petition for appointment of commissioners Notice to accompany the above petition Notice to non-resident or unknown owners, to be published Order appointing commissioners Oath of commissioner .... Commissioners'- report Notice of motion to confirm report .... Order confirming report .... Notice of appeal from commissioners' report 636 638 638 639 640 640 641 641 642 Notice of argument of appeal ..... 643 REDEMPTION OP REAL ESTATE. Certificate of sale on execution Affidavit verifying copy of assignment of judgment Affidavit of amount due on judgment Affidavit of amount due on mortgage . Like affidavit of agent or attorney of ovnier Certificate on redemption by judgment debtor . Certificate on redemption by judgment creditor Statement of redemption to file in clerk's office Sheriff's deed . . • . 643 644 644 644 645 645 645 646 646 Complaint to redeem mortgaged premises . . 647 RELIGIOUS CORPORATIONS, PROCEEDINGS FOR A SALE OP THEIR LANDS. Petition for sale . ..... 649 Order directing sale, and application of proceeds . . . 650 RENT, see mde, PROOEEDiNes bt Action to rbcotee Possession op Demised Premises, and post, Summary Proceedings to remove Tenaots. REPLEVIN, see ante, Claim and Delivery of Personal Property. SUMMARY PROCEEDINGS TO REMOVE TENANTS. Notice to pay rent or to surrender possession .... 651- Notice to quit the premises ...... 651 Affidavit of service of notice ...... 652 730 INDEX TO FORMS. SUMMARY PEOCEEmNGS TO REMOVE TENANTS.— Continued. Affidavit of demand of possession — ^holding over after sale on execution 652 Affidavit of landlord to remove tenant — expiration of term . . 652 Like affidavit, in case of tenancy at will .... 653 Like affidavit, in case of non-payment of rent .... 653 Affidavit by agent of landlord ...... 664 Summons to remove or show cause ..... 654 Affidavit of service of summons ..... 655 Warrant to put landlord fn possession, on default of tenant , . 655 . Affidavit of tenant denying landlord's allegations . . . 656 Venire, or precept of jury ....... 656 Warrant to put landlord into possession after trial . . . 656 Security to pay rent in ten days ...... 651 Security to pay rent, the tenant having taken the benefit of the insolvent act . . . '. . ... ^ 658 Affidavit of title in tenant subsequently acquired, &c. . . . 658 Bond to stay the proceedings, sale of premises on execution . . 658 Notice of appeal from justice's court to county court . , . . 659 Undertaking on appeal and to pay rent .... 660 Certiorari ......... 660 Return to writ of certiorari . ... 661 Judgment record on certiorari ...... 661 Writ of restitution . . .... 661 TENANTS, see ante, Summaet Peooeedinss to ebmove Tenamis, and Peo- CEEDBTUS A&AIBrST LBaAJBES, ETC. TWO-THIRD ACT, see cmie, Insolvent Dbbtoes, eto. r*».