CJorupU Slaiu i>ri|nnl ICibraty Cornell University Library KFN5975.J52 New York civil and criminal ustjce .;a, c , 3 1924 022 882 090 Cornell University Library The original of tliis bool< is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http ://www. arch i ve . o rg/detai Is/cu31 924022882090 PUBLISHERS' ADYERTISEIENT. The preparation of this Treatise upon the Civil, Criminal, and Special Powers and Duties of Justices of the Peace in the State of New- York, was undertaken by the late John S. Jen- kins, Esquire, who prepared, however, only about thirty pages of the work. That portion was printed more than a year ago, and the publishers were confidently expecting to issue the entire work within a short period, when the labors of Mr. Jenkins were brought to a close by his death. In l^ovember last, the preparation of the volume was assumed by Cheistophee Morgan, Samuel Blatchfoed, and Clarence A. Sewaed, Esquires, and, by their joint and equal co-operation, it has been completed. The publishers believe that this volume will be found to l>e the most comprehensive Treatise upon the varied duties of Justices of the Peace, that has ever been published in this State. It has been prepared with great care and research, and is believed to be accurate and full. Its plan is new, and the arrangement of both the text and the index, will, it is thought, be found to afford great facility and convenience of reference to those who may consult it. The Forms, very many of which have been taken from the New Clerk's As- sistant, prepared by Mr. Jenkins, have been incorporated with the text in their appropriate places. The very latest decisions of the Courts have been referred to and cited, and the publishers feel every assurance that the work will be found to be useful not only to Justices of the Peace, but to all who are connected with the administration or practice of the law. Atjbitejn, July 1st, 1853. THE IE¥-YOEK CIYIL AID CRIIIIAL JUSTICE: A COMPLETE TEEATISE ON THE CIVIL, CRIimAL, AND SPECIAL POWERS AND DUTIES OE JUSTICES OF THE PEACE IN THE STATE OF NEW- YORK; WITH NTJMEEOFS FORMS. AUBURN: DEEBT & MILLEE. BUFFALO: DEEBY, OETON & MULIIGAN. 1853. Entered according to Act of Llongreas, in the year one thousand eight hundred and fifty-thiee, by DEEBT AND MILLEE, In the ClerlL's Office of the District Court of the TTnited States for the Northern District of New-Tort COITENTS INTKODUCTION. Of the Offica of Justice of the Peaxje, PAET I. OF THE CIVIL JURISDICTION OF JUSTICES OF THE PEACE. CHAPTEE I. Of the Nature and Extent of the Jurisdiction, CHAPTEE n. 17 Of the Causes of Action cognizable )efore Justices' Cou rts, . 26 1. Amount in controversy, . 31 2. Territorial jurisdiction, . 34 3. Jurisdiction of the person. • 35 CHAPTEE IH. Of Actions generally, their Subjects, and Incidents, . 37 1. Contracts generally, , 37 2. Contracts of sale, . . 39 3. Statute of frauds, . 40 4. Sales and mortgages of chattels, . 50 5. Warranty, , 55 6. Bailment, " . . 57 7. Money paid, laid out, and expended, &c., 61 8. Contracts relating to lands. . 63 9. Use and occupation of lands, 64 10. Promissory notes. . 64 11. Interest, . 70 12. Usury, . 72 13. Payment, , ^ .74 14. Illegal contracts. . 75 15. Contracts made on Sunday, 78 16. Fraudulent contracts. . 80 17. Husband and wife. . 85 18. Parent and child, . 87 19. Infants, , 89 VI CONTENTS. Page. 20. Executors and administrators, . . .91 21. Corporations, .... 92 22. Principal and agent, . . . .94 23. Partnership, . . , .100 Limited partnership, , . .104 24. Injuries to the person, and to real and personal property, 105 (1.^ Injuries to the person, . . . 106 (2.) Injuries to real property, . . 106 (3.) Injuries to personal property, . .110 25. Penalties and forfeitures, . . . 114 26. Fixtures, . . . . .119 27. Mechanics' liens, . . . .122 CHAPTER IV. Of the Time of commencing Civil Actions, . . .142 CHAPTEE V. Of the Parties to Qvil Actions, .... 151 CHAPTER YI. Of the Commencement of CivU Actions, and the different Forms of Process, 1. Long summons, 2. Warrant, 3. Short summons, 4. Attachment, . CHAPTER YH. Of the Service and Return of Process, 1. Sumimons, 2. Warrant, 3. Attachment, 4. Process generally. CHAPTER Vni. Of the Appearance of Parties, CHAPTER IX. Of Pleadings, 1. Pleading generally, 2. Complaint, 3. Demurrer, 4. Answer, 5. Amendments, 6. Plea to the jurisdiction, 7. Former action, 8. Plea of payment, 9. Plea of tender. 1.) Tender generally, 2.) By whona a tender may be made, ^3.) What is a good tender. 161 161 165 170 172 180 180 182 189 197 200 207 208 210 213 215 218 319 221 222 003 222 224 225 CONTENTS. Vll Pago. r4.^ As to the thing tendered, . . 226' (5.) At what place a tender must be made, . 227 (6.^ At what time a tender must be made, . 228 n.) To whom a tender must be made, . . 229 ^8.1 The consequences of a tender and refusal, . 229 (9.) Tender, after action brought, . . 230 10. Set-off, . . . .233 11. Recoupment, .... 240 12. Plea of title, . . . .243 CHAPTEE X. Of Adjournments, ..... 248 1. On motion of the Justice, . . • 248 2. On motion of the plaintiff, . . . 249 3. On motion of the defendant, . . . 252 4. Further adjournments, . . • . 256 5. Irregular adjournments, . . . 258 6. Waiver of irregularity, . . . 260 7. General rules, .... 260 CHAPTER XL Of Commissions and Subpoenas, . . .261 1. Commissions, . . . .261 2. Subpoenas, . . . . .271 (1.) The issuing of a subpoena, . , 271 (2.) The service of a subpoena, . . . 273 (3.^ Attachment to compel the attendance of a witness, 274 (4.) Duty of a witness, and what will excuse non-attend- ance, .... 276 (5.) When damages may be recovered from a default- ing witness, . . . ■ 277 (6.) When a defaulting witness may be fined and im- prisoned, .... 278 CHAPTER Xn. Of the Trial of Issues of Fact, .... 282 1. General rules, .... 283 2. Trial by jury, . . . .285 (I.') Venire, . . . .285 (2.S Qualifications and exemptions of jurors, . 289 (S.S Drawmg of the jury, . . . 293 (4.^ Challenges to jurors, . . , 294 (5.) Swearing the jury, . . • 297 (6.) Statement of the cause of action, . . 297 n.\ Evidence, .... 297 ^8.^ Swearing witnesses, . . . 299 (9.^ Punishment of witnesses who refuse to testify, 300 f 10.) Examination of plaintiff's witnesses, , 302 hi.) Nonsuit, .... 303 (12.) Statement of the defence, . , 304 (13.) Examination of defendant's witnesses, , . 304 Vm CONTENTS. Page. n4.) Amendment of pleadings, . . 304 (15. J Summing up, . . . . 305 Q6.^ Retiring of the jury, . . . 305 (17.j Receiving the vercfict, . . . 307 (18.j Variance, . . . .310 (19.) Contempts of Court, , . .310 CHAPTEE, Xin. Of Evidence, ..... ,310 1. The nature and principles of evidence, . . 310 2. Things judicially taken notice of -without proof, . 312 3. The various kinds of evidence, . . 313 4. Presumptive evidence, . . . .315 The relative value of direct and of circumstantial evi- dence, .... 327 5. Relevancy of evidence, . . . 329 6. Burden of proof, . . . .331 7. Amount of proof, .... 334 8. The best evidence, . . . 335 9. Hearsay evidence, .... 338 (1.) Matters of public or general interest, . 342 (2.) Ancient documents, . . . 343 (3.) lieclarations of deceased persons, . 343 (4.\ Dying declarations, . . . 344 (5.) Testimony of deceased witnesses, . 345 10. Admissions, ..... 348 (1.) By whom an admission may be made, . 348 (2.) The time and circumstances of the admission, . 354 (3.) Implied admissions, . . . 355 (4. j The whole admission must be given in evidence, . 355 (5.) The conclusiveness of an admission, . 356 11. Evidence excluded from public policy, . . 357 12. Evidence required by the statute of frauds, . 358 13. Parol evidence to vary written instruments, . . 360 Parol evidence to annul written instruments, 362 Parol evidence to show a subsequent variance of a written instrument, . . . 362 (3.) Parol evidence as to the consideration of vsritten instruments, .... 363 (4.) Usage, . . . .363 14. Competency of witnesses, . . . 364 (1.) Persons excluded by statute and by the common law, .... 364 (2.) Persons rendered competent by spedal statute, . 368 1. Corporators, . . . 368 2. Indians, .... 368 3. Owners of lost baggage, . . 369 4. Persons betting and gaming, . . 369 5. Plaintiff, where the defence is usury, . 369 6. Persons interested in actions on demands 369 bought for suit, . . . 369 ii! CONTENTS. IX Page. 7. Parties to the action, . ' . 370 8. Interested witnesses, . . 371 15. Examination of parties, . . . 372 16. Mode of examining witnesses, . . 377 (1.) Pr'vilege of witnesses, . . . 377 (2.) Direct examination, . . . 379 (3.) Cross-examination, . . . 382 (4.) Impeachment of witnesses, . . 384 (5.) Re-direct examination, . . . 386 (6.) Sustaining impeached witnesses, . . 387 17. Public documents, .... 387 (1.) Public documents not judicial, . . 388 I Records and judicial writings, . . 389 I Documentary evidence generally, . . 393 Aliens, Depositions of, . . . 393 Attorney, Letters of, . . . 393 Certificates to documentary evidence, Form of, 394 Canal maps, .... 394 Canal contractors' bonds, . . 394 Chattel mortgages. Copies of, . . 395 Common Council of New-York, Proceedings of, 395 Conveyances, &c., Certificates of proof and acknowl- edgment of, ... . 396 Corporations, Certificates of incorporation of, . 403 Corporations, Seals of, . . 404 County clerks, Papers certified by, . . 404 Depositions in perpetuam rei memoriam, . 404 Firemen, Certificates as to service of, . . 405 Legislative papers, . . . 405 Land Companies, Papers and field notes of, . 405 Loan Commissioners, Certificates of^ . 406 Lost papers. Certificates as to, . . 407 Marriage certificates, . . . 408 Offices of the State Government, Papers deposited in the, . . . . 408 Plank and turnpike roads. Transfer books of, . 409 Printers' affidavits, . . . 410 Redemption of real estate. Certificates of, .410 Statutes of this State, . . . 410 Taxes unpaid. Certificates of, . .411 Town clerks, Papers in offices of, . 411 . Villages, Certificates of incorporation and proceed- ings of, . . . . 411 Wais, . . . .412 Written instruments generally. Proof or acknowl- edgment of, . . . . 412 18. Private writings, .... 412 (1.) Production of private writings, . . 412 (2.) Mode of proving private writings, . 415 ^3.) Admissibility of shop-books, . . 418 19. Evidenoe in particular actions, . . 420 CONTENTS. (1.) Agency, _ (2.) Assumpsit, . (3.^ Common carriers, (4.\ Damages, (5.) Infancy, (6.) Limitations, . n.) Partnership, (8.) Payment, (9.) Promissory notes, 1. The existence of the note, 2. The relation of the defendant to the note, 3. The interest of the plaintiff in the note, 4. The breach of contract by the defendant, flO.^ Tender, Ql.) Trespass, f 12.j Trespass on the case, (13.) Trover, CHAPTEE XIV. Of Damages, .... 1. Liquidated damages, 2. Vindictive damages, 3. General and consequential damages, 4. Damages for breach of contract generally, 5. Damages on a breach of warranty, 6. Damages for not delivering goods sold, . 7. Damages against common carriers and factors, CHAPTEE XV. Of Judgments, Dockets, and Transcripts, 1. Judgments generally, 2. Judgments by confession, 3. Judgment of non-suit, 4. Judgment after a trial, 5. Transcript of judgment, 6. Revival of judgment, 7. The Justice's docket and papers, CHAPTEE XVI. Of Costs and Fees in Civil Proceedings, 1. Costs, .... 2. Fees, ..... CHAPTEE XVn. Of Executions, .... 1. Issuing executions, . 2. Eenewing executions, 3. Executions on judgments docketed in County Court, 4. Levy and sale, 5. Property exempt from execution, 6. Imprisonment o^execution, Page. 420 420 422 424 425 426 427 428 429 430 431 431 433 437 437 440 441 443 444 445 446 447 449 450 451 452 452 453 455 455 458 462 462 468 468 472 476 476 481 483 484 496 500 CONTENTS. XI 7. Return of execution, OHAPTEE XYin. Of Appeals, 1. Appeal, when and how taken, 2. Stay of execution, 3. Return to appeal, . 4. Proceedings in appellate Court, 5. Costs and fees on appeals, Page. 501 504 504 506 508 510 512 PAET IL OF THE CRIMINAL JUEISDICTION OF JUSTICES OF THE PEACE. OHAPTEE I. Of Police Justices, and their Jurisdiction, . . .515 OHAPTEE H. Of the Criminal Jurisdiction of Justices of the Peace generally, 528 1. General powers, .... 529 2. Affrays and riots, .... 533 3. Contempts of Court, .... 533 4. Dying declarations, . . . 538 5. Search warrants, .... 539 6. Searching prisoners, . . . 543 7. Stolen property, .... 543 OHAPTEE HI. Of the Process for the Arrest of Offenders, . . 544 1. The complaint, .... 545 2. The warrant, . . . .565 OHAPTEE lY. Of the Execution of the Warrant, . . , 571 1. Serving the warrant, . . . 571 (l."\ Arrest, . . . .572 (2.) Escape, .... 574 (3.) Endorsing the warrant, . . . 575 2. Bringing up the prisoner, . . . 576 OHAPTEE Y. Of the Examination of Persons Arrested, . . . 579 1. Examination of the complainant and his witnesses, . 581 2. Examination of the prisoner and his witnesses, . 582 3. Discharge of the prisoner, . . . 587 4. Recognizing the complainant and his witnesses, . 587 Xll CONTENTS. CHAPTER VI. Of Commitments, .... 1. Commitment, when to be made, ^1.^ Crimes punishable with death, (2.) Crimes punishable by imprisonment in a State pris- on, for a period exceeding five years, 2. To what prison, .... 3. The mittimus, .... CHAPTER VH. or Bail and its Incidents, .... 1. What offences are bailable by a Justice, . 2. Bail, when to be taken, .... 3. Bail, by whom to be given, 4. Contents of the recognizance, • . 5. Form of the recognizance, CHAPTER Vni. Of Courts of Special Sessions generally, and Trials therein, 1. Jurisdiction of Courts of Special Sessions, 2. By whom held, 3. Disposition of the prisoner while awaiting trial, 4. The trial, (1.) The prisoner's plea, (2.) Trial by the Justice, ^3.) Trial by a jiiry, ^4.) Witnesses, {6.S Evidence, (6.^ Verdict of the jury, (7.) General rules, 5. Proceedings subsequent to the trial, 6. Judgment when the complaint was malicious, CHAPTER IX. Of Courts of Special Sessions in Particular Localities, . CHAPTER X. Of the Compromise of Offences, CHAPTER XI. ■Of Proceedings to Eeverse Judgments in Criminal Cases, CHAPTER Xn. Of Surety of the Peace, CHAPTER Xni. Of Fees in Criminal Cases, Page. 592 592 592 594 613 613 619 620 636 638 639 640 642 642 642 647 648 648 651 651 654 655 656 657 657 662 663 672 674 680 685 CONTENTS. Xlll PART III. OF THE SPECIAL POWERS AND DUTIES OF JUSTICES OF THE PEACE. CHAPTEK I. Page. Of the Acknowledgment and Proof of Conveyances and other Written Instruments, .... 696 CHAPTEK n. Of Affidavits and Oaths, . . . .708 CHAPTER HI. Of Apprentices, .... 710 CHAPTEE IV. Of Bastards, . . . . .725 CHAPTEE Y. Of Beggars and Vagrants, . . . 747 CHAPTEE VI. Of Disorderly Persons, .... 751 CHAPTEE Vn. Of the Disturbance of Eeligious Meetings, the Observance of Sunday, and Profane Cursing and Swearing, . 757 1. The disturbance of religious meetings, . . 760 2. The observance of Sunday, . . 763 3. Profane cursing and swearing, . . . 765 CHAPTEE VHI. Of Dogs, ..... 767 CHAPTEE IX. Of Draining Swamps, .... 768 CHAPTEE X. Of Excise and Taverns, .... 772 CHAPTEE XI. Of Fugitives from Justice, .... 783 CHAPTEE Xn. Of Gaming, and Lottery Tickets, . . . 788 CHAPTEE Xm. Of Habitual Drunkards, . , . . .790 CHAPTEE XIV. Of Hawkers and Pedlers, . . , . 796 XIV CONTENTS. CHAPTEE XY. Of Highways and Eoads, 1. Collection of fines for not working on highways, 2. Re-assessment of damages for laying out highways, 3. Assessment of damages for laying out private roads. Page. 799 799 804 807 4. Removal of obstructions and encroachments from highways, 807 CHAPTER XYL Of Landlord and Tenant, . 1. Deserted premises, 2. Special proceedings for re-entry, 3. Summary proceedings to recover possession premises, (l.\ Trial by jury, . (2.\ Staying proceedings, (3.^ Certiorari, (4.) Appeal to County Court, CHAPTEE XYII. of demised 814 814 818 819 827 830 832 832 Of Lunatics, . . . . . 835 CHAPTEE XYHI. Of Marriages, . . . 838 CHAPTEE XIX. Of Parents Absconding, . 842 CHAPTEE XX. Of Pawn-Brokers, 845 CHAPTEE XXI. Of Unclaimed Baggage, 846 CHAPTEE XXII. Of Miscellaneous Powers, . 848 1. Arbitrators, 848 2. Depositions to be used in other States, . 849 3. Firemen, 850 4. Firing of woods, . 850 5. Forcible entry and detainer, . 851 6. Justices of Sessions, . 851 7. Limited partnerships. 852 8. Racing, . 852 9. Removal of constables. 854 10. Town auditors, . 855 11. Town meetings, 857 12. Vacancies in town offices. . 857 Errata, .... . 860 Index, ..... 861 TABLE OF FOEMS. XV TABLE OF FORMS. Form. P(^. 1. Certificate of the election of a Jus- tice of the Peace, 6 2. Supervisor's notice of drawing, 6 3. Certificate of the drawing, 7 4. Oath.of office, . ^ 9 PAET I-CmL CASES. 6. Consent to be guardian for infant plaintiff, 168 6. Summons, 164 7. Affidavit for a warrant, in an action for a vpTong, 167 8. Affidavit for a warrant, in an action on contract, 167 9. Security by a non-resident plaintiff, on issuing a warrant, or a short sum- mons 168 10. "Written security, in like cases, 168 11. Warrant, in a civil action, 169 12. Affidavit for short summons by non- resident plaintiff, 171 13. Affidavit for short summons against non-resident defendant, 171 14. Application for an attachment, 177 15. Affidavit for a long attachment, under the Kevised Statutes, 177 16. Affidavit for a long attachment under the non-imprisonment act, 178 17. Affidavit for short attachment against anon-resident, 178 18. Bond on all attachm^its, long and short, 178 19. Approval of Justice on the bond, 179 20. Attachment, in all cases, 179 20.*Eetums on summons, 181 21. Return on warrant, 189 22. Bond to prevent the removal of goods attached 192 28. Bond by claimant of property attach- ed. 193 24. Eeturn to attachment, 196 55. Consent to be guardian for infant de- fendant, 202 26. Complaint in an action arising on contract, 211 27. Complaint for injuring personal prop- erty, 21 2 28. Complaint for breach of warranty, . . 212 29. Complaint for fraud or deceit, 212 30. Complaint for the conversion of per- sonal property, 212 81. Complaint for injury to real property, 213 82. Complaint by an assignee, 213 33. Demurrer to complaint, 214 34 Demurrer to answer, 215 85. Answer, ! 21t) 86. Answer, with notice, 217 87. Answer, setting up plea of title 243 88. Undertaking, on plea of title, 244 39. Bond for defendant on adjournment, where he can be imprisoned on ex- ecution, 254 40. Bond for defendant on adjournment, where he cannot be imprisoned on execution, 256 41. Notice of application for a commis- sion 263 42. Affidavit of service of notice, 263 42.*Commission, 265 48, Interrogatories, and cross-interroga- ■ tories, 266 44. Commissioner's summons to witness, 269 45. Oath to witness examined on a com- mission, 270 46. Deposition of witness before a Com- missioner, 270 Form. Page. 47. Endorsement on an exhibit produced before a Commissioner, 270 48. Rfturn to be endorsed on commis- sion, 271 49. Subpoena, 272 60. Affidavit to obtain attachment against witness, 275 51. Oath to party, to prove service of subpcena, 275 62. Attachment against witness, 275 53. Minute of conviction of defaulting witness, 280 64. Execution against him, for fine and costs, - . 280 55. Venire, for trial by jury in a civil ac- tion, 286 56. Oath on objection to constable's serv- ing the venire, 287 57. Oath of witness, upon the Gospels,.. 299 58. The same, not on the Gospels, 299 69, Affirmation of witness, 299 60. Warrant of commitment against wit- ness who refuses to testify, 802 61. Confession of judgment, 454 62. Affidavit where the confession is for a sum exceeding fifty dollars, 455 63. Transcript of judgment, 461 64. Entry in Justice's docket, 463 65. Execution, in a civil action, 478 66. Renewal of execution, 482 67. Endorsement of levy on execution, 485 68. Endorsement on an execution, where inventory is attached, 485 69. Inventory to be attached to execution, 485 70. Receipt for goods taken on execution, 486 71. Constable's advertisement of sale, . . . 489 72. Bond to indemnify constable 493 73. Memorandum of sale of goods or chattels, 496 73.*Eetum to an execution satisfied, 501 74. Return to execution satisfied in part, 501 75. Return, where defendant is commit- mitted, 502 76. Eeturn of no property found, 502 77. Eeturn, where no property, nor the body of the defendant, is found, 602 78. Return of part satisfied, and no body found, 602 79. Return, where goods remain unsold, 502 80. Notice of appeal, in a civil action,.. 505 81. Undertaking, 507 82. Justice's return, 608 PART n-CUIMINAL CASES. 83. Warrant of arrest for contempt of Court, 5.?5 84. Record of conviction therefor, 536 85. Warrant of commitment therefor,... 687 86. Complaint to obtain a search warrant, 541 87. Search warrant, 541 88. Oath of complainant, or of witness on complaint, 548 89. Complaint for assault and battery,. . . 543 90. Complaint for grand or petit larceny, 549 91. Complaint for murder, 549 92. Complaint for murder by poisoning, . 549 93. Complaint for murder by stabbing, . . 549 94. Complaint for murder by shooting, . . 550 95. Complaint for murder by cutting throat, 550 96. Complaint against an accessory after thofact, 650 97. Complaint for arson in the first de- gree, 551 98. Complaint for arson in the second de- gree, 551 XVI TABLE OF FORMS. rorm. Page. 99. Complaint for arson In tbo third de- gree, 551 100. Complaint for setting fire to a crop of grala,growlng 551 101. Complaint for manslaughter, In kill- ing another with an axe, 552 102. Complaint for manslaughter. In kill- ing an unborn child, by kicking its mother, 552 108. Complaint for manslaughter, in kill- ing an uijkborn child, by BdmioiBter- ing drugs, tfcc, to its mother, 552 104. Complaint for rape, 652 105. Complaint for rape on female under ten years of age, 658 106. Complaint for aaaault, with intent to commit a rape, 658 lOT. Complaint for forcible abduction of a woman, with intent to compel her to marry, or prostitute herself, 558 108. Complaint for taking a female under fourteen years of age from her pa- rent or guardian, 563 109. Complaint for mayhem or maiming, 554 110. Complaint for child-stealing, 564 111. Complaint for abandoning child, 654 112. Complaint for shooting at, or attempt- ing to shoot at, with intent to kill, rob, or maim, 655 118. Complaint for assault with deadly weapon, with intent to kill, 555 114. Complaint for poisoning food, 655 115. Complaint for poisoning well, 555 116. Complaint for assault, with intent to rob, or commit burglary, 556 117. Complaint for burglary, 556 118. Complaint for felony and burglary in shop 557 119. Complaint for burglary In entering store, 557 120. Complaint for constructive burglary, 557 121. Complaint for forgery, 557 122. Complaint for passiuE;, or offering to pass, counterfeit bank notes, 568 128. Complaint for altering or counterfeit- ing bank notes, 558 124 Complaint for obtaining property by a false token, or by falsely persona- ting another, 659 125. Complaint for obtaining money, or property, by false pretences, 559 126. Complaint for robbery, 559 127. Complaint for embezzlement, 560 138. Complaint for receiving stolen goods, 660 129. Complaint for- peijury, 560 130. Complaint for bigamy, 661 181. Complaint for marrying the wife of another, 661 182. Complaint for malicious mischief, 661 188. Complaint for malicious trespass, or for girdling trees, 561 184. Complaint for procuring abortion,. . 562 185. Complaint for making an affl-ay, 662 186. Complaint for cmelty to animals,. . . 662 137. Complaint for a rout or riot, 562 188, Complaint for selling unwholesome food 668 189. Complaint for disturbing a religious meeting, 568 140. Gcneralform of warrant in a criminal case 570 141. "Warrant for assault and battery, 570 142. Warrant for grand or petit larceny, . . 570 148. Form of backing or endorsing a, war- rant, 676 144. Warrant of commitment for further examination, ,- 581 144.* P risen er^'s examination, 586 145. Examination of the complainant, and of the witnesses for both parties, 586 146. Warrant of commitment of a wit- Form. ^ ^ I^age. ness who refuses to enter into a recognizance, 588 147. Eecognizance by a witness to give evidence, 590 148. Eecognizance by a witness, with sure- tlesf ;. 590 149. Eecognizance by sureties for a wit- ness who is an infant or a married woman, 5M 150. Warrant of commitment, 618 151. Recognizance, on giving ball, 640 152. Warrant to liberate a prisoner, on giving bail, 641 158. Warrant of commitment of prisoner to await trial by Court of Special Sessions, 647 154. Order to jailer to bring up prisoner for trial, 647 155. Plea to the jurisdiction, 649 156. Demurrer to the complaint, 649 157. Plea in abatement, 650 158. Special plea in bar, 651 159. Venire 652 160. Subpoena 654 161. Oath to witness, 655 162. Constable's oath, on retiring with jury, 656 163. Minutes of proceedings on trial, 658 164. Certificate of conviction at Special Sessions, 659 165. Warrant of commitment, on convic- tion at Special Sessions, 660 166. Acknowledgment of satisfaction, on the compromise of an offence, 673 167. Order superseding the commitment of the prisoner, 678 168. Order dischMging the recc^rnizances of the prisoner and the witnesses, . . 678 169. AflBdavit to obtain a writ of cer^wroW in a criminal case, 674 170. Certiorari, to remove a conviction to the Supreme Court, 675 171. Eetum endorsed on certiorari, 676 172. Schedule annexed to return, 676 172.*Eecognizance to be entered into by a defendant, on the removal of a crimi- nal case into the Supreme Couri; by oertioraH., 678 178. Complaint to obtain surety of the peace, 681 174. Peace warrant, 682 175. Eecognizance to keep the peace, 688 176. Commitment for not finding sureties, 684 177. Warrant to discharge prisoner on finding sureties, 684 178. Affidavit to accompany account for fees in criminal cases, 686 PART m-^PECUL PROCEEDINGS. 179. Certificate of acknowledgment of a conveyance by a party known to the officer, , 699 180. By a party, where his identity is proved to the officer, 700 181. By husband and wife, both known to the officer, 700 182. By husband and wife, both proved to the officer 700 183. By husband and wife-buaband known^ and wife proved, to the officer, 701 184 By two husbands and their wives, all known to the offlcor 701 185. By wife, in separjito certificate, 701 186. By two or more parties, 701 187. By one of several parties, 702 188. By an attorney, 702 169. By an executor, or trustee, 702 190. Certificate of proof by subscribing witness known to the officer. 702 191. By subscribing witness, where his identity is proved to the officer, 703 TABLE OF rOEMS. XVll Form, Page. 192. By subscribing -witness— grantors re- siding in another State, 708 193. The same, by subscribing witness proved to the officer, 703 194. By Bubscribing witness as to the hus- band, and ftdtnowledgment by the wife, both being known to the officer, 704 195. By subscribing -witness as to the hus- band, and acknowledgment by the wife, both proved to the officer, 704 196. By subscribing witness to deed execu- ted by an attorney, 704 197. Proof of deed, by a religious corpo- ration, 705 198. Satisfaction of mortgage, and ac- knowled^entjby individual known to the officer, 706 199. Certificate of satisfaction of a mort- gage, to be written thereon, 706 200. Satisfaction of a mortgage, by an ex- ecutor, administrator or trustee, .... 706 201. Satisfaction of a judgment in a Jus- tice's Court, where a transcript is filed in the county clerk's office,. . . 706 202. Satisfaction of a judgment in a Court of Record, 706 263. Oath to be administered to a sub- scribing witness, 707 204. Oath toawitness proving the identity of the parties, or of the subscribing witness, to a conveyance, 707 205. Oath to a deponent, 709 206. Apprentice's Indenture, 715 207. Consent by father or mother 716 208. Justice's certificate, where the father does not give the consent, 717 209. Consent of guardian, 717 210. Consent by the Overseers of the Poor, or two Justices of the Peace of the town, or the County Judge of the county, where the infant resides, . . . 717 211. Complaint by master against appren- tice for refusing to serve, 717 212. Warrant on the foregoing complaint, tl8 213. Commitment of an apprentice refu- sing to serve, 718 fil4. Complaint to two Justices concerning any misdemeanor or ill-behavior of an apprentice, 719 215. "Warrant on the foregoing complaint, 719 216. Commitment of an apprentice on the foregoing complaint, 720 217. Discharge of the apprentice from his service, and of the master from his obligations, 720 218. Complaint by an apprentice to two Justices, for the cruel^ or misusage of his master, or his refosal to fur- nish him with necessary provisions or clothing, 720 219. Summons on the foregoing complaint, 721 220. Discharge of an apprentice on the foregoing complaint, 721 221. Complaint by an apprentice against his master, where money has been paid, or agreed to be paid, 722 222. Summons on the foregoing complaint, 722 223. Recognizance of master and surety on the foregoing complaint, 723 224. Complaint by master against appren- tice refusing to serve, where money has been paid, or agreed to be paid, 723 225. Summons on the foregoing complaiot, 723 226. iteeognizance of ^prentice and sure- ty on the foregoing complaint, 724 227. Application of a Superintendent, or Overseer, of the Poor, in a case of bastardy 725 228. Examination of the mother before birth, 726 Form. Page. 229. Examination after birth, 726 280. "Warrant to apprehend reputed father, 726 281. Endorsement on a warrant of arrest to be executed in a foreign county, 727 282. Endorsement by a Justice in a foreign county, 727 233. Bond to be taken by the Justice before whom the reputed father is carried, 728 284. Certificate to be endorsed on warrant, 729 285. Subprona in a case of bastardy, 780 286. liond on adjournment, 781 237. Order of filiation, 732 288. Bond on order of filiation, 784 289. "Warrant to commit putative father, 785 240. Warrant to commit a mother who refuses to disclose the name of the father, 787 241. Summons where the mother baa property in her own right, 788 242. Order to compel the mother to pay for the support of the child, 738 248. Warrant to commit the mother, 789 244. Bond by the mother of a bastard to appear at the next Court of Ses- sions, 740 245. Order reducing the sum to be paid by the father or mother of a bastard child, 740 246. Warrant to discharge putative father, 742 247. Warrant to seize the property of absconding father of bastard, 743 248. Bond to be given by party where property has been seized, 744 249. Order to discharge the ■\^'ar^ant, and to restore the property, 745 250. Eecord of the conviction of a va- CTant, , . 748 251. Warrant of commitment of a va- grant, 748 252. "Warrant to arrest a person in disguise, 749 263. Warrant to commit a child to the county poor-house, 750 254. Warrant to arrest a disorderly per- son, 752 255. Eecognizance of a disorderly person, 752 256. Eecord of the conviction of a disor- derly person, 753 257. Warrant to commit a disorderly per- son, 754 258. Warrant to commit a disorderly per- son, after a recovery upon his recog- nizance, 755 259. Discharge of a disorderly person, to be granted by any t^vo Justices, . . . 756 260. Warrant to arrest a person for the disturbance of a religious meeting, &C., 757 261. Eecord of conviction for disturbing a religious meeting, &c, 758 262. Execution to collect penalty and costs, on such conviction, 759 263. Certificate of such conviction, 760 264. Security for the payment of penalty and costs, upon conviction for d^- turbing a religious meeting, 762 265. Warrant of commitment, on such conviction, 762 266. Warrant to seize goods forfeited by being exposed to sale on Sunday, . . . 764 267. Warrant of arrest for profanity, 765 268. Security for thepaymentof the pen- alty and costs, upon conviction for profanity, 766 269. Warrant of commitment, upon con- viction for profanity, 766 270. Order to kill a dangerous dog, 767 271. Summons for a jury to determine on opening a ditch, 769 272. Oath to the jurors, 770 273. Inquisition, 771 274. Notice of Supervisor for special meet- XVIU TABLE OF FOEMB. Form. Page. ing of the OomrQiaBioners of Excise, 778 2T5. Minutes of Board of Excise, T73 276. Bond of tavern keeper, on license to sell spirituous liquors, with appro- val, ■ ■ 776 277. Bond for obtaining license, under Act of 1843, 776 278. License for keeping tavern and sell- ing spirituous liquors, 776 279. License to keep tavern, without sell- ing spirituous liquors, 777 280. License to grocer to sell liquor, 778 281. Grocer's bond, 778 282. "WarrJant to commit a fugitive from justice, 784 383. Bond by a fugitive from justice, 785 284. Notice designating habitual di-unk- ard, &c., 791 285. Notice to Overseers by Justice, 792 286. Vemre for a jury to try the fact of habitual drunkenness, 792 287. Juror's oath, 793 288. Oath to witness, 793 289. Execution, against the drunkard, 798 290. Execution against the Overseers, 794 291. Eevocation by the Overseers, where a drunkard reforms, 794 292. Commitment of a hawker or pedler for refusing to pay the penalty for not showing his license, 796 S98. Warrant to collect a penalty from a hawker or pedler, 797 294 Complaint against a person for refti- sing to work on a highway, 800 295. Complaint against a person for not furnishing a team, 800 296. Summons for refusing to work on a higbway, :...;, 801 297. Seturn of constable on serving sum- mons, ■. 802 298. Conviction endorsed on the com- plaint, 803 299. Wan-aht to collect a fine for not work- ing on a highway, 803 300. Summdns for a jury to re-assess high- way damages, 805 801. Oath to the jurors, 805 802. Oath to witnesses, 806 808. "Verdict of the jury, 806 304. Certificate of the Justice, , 807 805. Precept to summon a jury, in case of an encroachment on a highway, 810 806. Oath to JQrors, .' 810 807. Oath to witnesses, 810 808. Certificate of the jury, 811 309. Warrant to collect costs of proceed- ings, upon an encroachment on a highway, 812 310. Certificate where no encroachment is found, 818 811. Petition and affidavit, where demised premises are deserted, 815 812. Notice to tenant who has deserted the demised premises, 815 813. Bond on appeal, 817 814. Notice to landlord of the appeal 817 Form. , Page. 815. Beeord of Justice, where premises are deserted, SIT 816, Notice of intention to re-enter demi- sed premises, 818 317. Notice requiring payment of rent, or possession of demised premises,... 819 318. Affidavit to authorize the summary removal of a tenant, 821 819. Summons to remove tenant holding over after expiration of lease, 822 820. Summons in a case of tenancy at will, or at suflFerance, terminated by no- tice, 823 821. Summons to remove tenant for non- payment of rent, 823 822. Affidavit of service of summons, 824 823. Warrant to put in possession, where tenant holds over after expiration of lease 824 824 Warrant to remove the tenant in a case of tenancy at will, or at suffer- ance, terminated by notice, 825 325. Warrant to put in possession, on de- fault of payment of rent, 826 826. Eeturn of officer to warrant, 826 827. Affidavit to obtain trial by jury, in proceedings to remove a tenant, 827 828. Precept for a jury, 828 829. Oath to jurors, 828 330. Officer's oath to keep jury, after evi- dence given, 829 831. Bond to stay proceedings on a war- rant for non-payment of rent, 830 832. Security for rent, to stay proceedings, where the tenant has taken the ben- efit of an insolvent act, .^.. 830 333. Affidavit to stay proceedings, by oc- cupant of premises sold under ex- ecution, 881 834. Bondtostayproceedings,bythesame, 832 885. Affidavit for appeal to County Court, in proceedings to remove a tenant, . 833 886. Notice of appeal, 838 887. Undertaking on appeal, 884 888. Warrant to confine a lunatic, 887 839. Form of marriage, 840 340. Marriage certificate, 840 841. Justice s certificate, 841 342. Warrant to seize the goods of an ab- sconding father, husband, ormother, 842 848. Bond to be given by party, where property has been seized, 843 844 Order to discharge the warrant, and to restore the property, 844 845. Bond of claimant of property pledged with a pawn-broker, , 845 846. Warrant to apprehefia' persons enga- ged in racing, r, 85S 84T, Recognizance by person apprehended, 853 348. Affidavit to attach to an account, 856 849. Certificate of town auditors, 856 850. Abstract of claims audited by the town auditors, 866 351. Warrant appointing town officers, . . . 85T 852. Notice of acceptance of resignation of town officer, S5S THE NEW-YORK JUSTICE. INTRODUCTION. OF THE OFFICE OF JUSTICE OF THE PEACE. The office of Justice of the Peace, besides being of gi'eat importance in view of the magnitude of the interests upon which he may be called to decide, is an ancient and an hon- orable one. Justices were first nominated in England, in every county, by William the Conqueror, in 1076. They were known in English law, howpver, merely as Conservators of the Peace, and were called Guardians or "Wardens of the Peace, till 1361, when the statute, 34 Edward IH., chapter 1, gave them the power of trying felonies ; and they were then dignified with the appellation of Justices, which term had been applied to the English judges ever since the Norman Conquest.' Justices of the Peace, in England, are appointed by special commission, issued under the great seal, though there are some officers, such as the Master of the Rolls, mimicipal au- thorities, and others, who are Justices of the Peace by pre- scription, in virtue of their other offices ; and as it is usual to designate two or more of the Justices named in the commis- sion, as those without whose presence no important business can be transacted, the persons thus selected are called Justi- ces of the quorum, from the language of the commission — ' 1 Black. Comm. 361. 2 is NEW-TOEK JUSTICE. ^^ quorum aliquem vest/nmi, etc." ' The first judicial proceed- ings in regard to persons accused of grave oifences may be instituted before them, and they are also clothed, by various statutes, with power to try certain minor offences. In these respects, their powers, and those of Justices of the Peace in the United States, are very similar. In France, the different departments are divided into arron- dissements, and the latter into cantons, each of which has its Justicier de Paix, or Justice of the Peace, who possesses a limited jurisdiction in the decision of cases where property is in dispute, in the settlement of difficulties growing out of slander and libel, and in making compromises and directing guardianships. This officer has jurisdiction, also, of the lower grade of offences against the police regulations. In the United States, Justices of the Peace, in addition to their common law powers as Conservators of the Peace, gene- rally have jurisdiction in civil cases. Their civil jurisdiction is different in the different States, but is usually limited to actions for the recovery of debts not exceeding a certain amount, or of damages for injuries to property, and to suits on promises, express or implied, or for trespasses, where the title to real estate does not come in question." This jurisdiction, in view of a single case, may appear to be of minor impor- tance; but in the aggregate it is of vast consequence, and the amount annually in controversy, in the Justices' Courts of the State of New- York alone, must exceed ten millions of ■dollars. Their criminal jurisdiction has been materially enlarged; in most of the States, by statute ; and they share their common law powers in the conservation of the peace, with municipal officers, and the judges of the higher courts. The tenure of the office is not the same in all the States ; but they are usually appointed by the executive authority, or elected by the people in towns or cities. In New-York, under the Colonial rule, Justices of the Peace were appointed by the Governor of the Province. They were empowered, by acts of the General Assembly, to try all cases to the amount of £5, New- York currency, (except where the • 1 Black. Comm. 881 ; 8 Stephen's Comm. = U. S. Digest and Supplement, KUe, Jus- 40. tices of the Peace. HISTOEY OF THE OFFICE. 6 Crown was concerned, or the title to lands came in question, and actions of slander;) but either party might demand a jury of six men. Any party aggrieved by a judgment might remove the same, by certiorari, to the Supreme Court. The Provincial Legislature also conferred extraordinary powers upon the Justices in regard to certain offences. Any three Justices, one being of the qiiwum, might try an offence under the degree of grand larceny, provided the offender did not find bail in forty-eight hours after being taken into custody ; and, in conjunction with five freeholders, and without a grand or petit jury, they had power to proceed against and try slaves, in a summary way, in certain cases, and to punish them with death.' The first State Constitution, adopted in 1777, provided for the appointment of Justices of the Peace by the Council of Appointment, and new commissions were required to be issued to them at least once in three years." Laws were passed by the Legislature, in conformity with the Constitu- tion, directing the appointment and commissioning of fit and discreet men, from time to time, as Justices to keep the Peace, in every county in the State.' The number of these officers was not limited till the act of 1818, by which the appoint- ment of more than four Justices of the Peace in any town was prohibited." The Constitution of 1821, adopted in 1822, directed that Justices of the Peace should be nominated for the several towns in each county, by the Board of Supervisors and the County Judges thereof — each body acting separately — and if their nominations agreed, then the persons nominated were to be the Justices ; but if they did not agree, then the Gover- nor of the State was authorized to select from the two lists of nominations, so many Justices of the Peace as might be re- quisite to fill the vacancies." The term of office was fixed by the Constitution at four years, and the Legislature provided by statute for the time and details of the appointment.' This cumbersome mode of appointment was abolished by an ' 1 Documentary History of New-Tork, 756, ' Laws of 1818, clap. 60. 772. ' Art Iv, sec T. " Arts, xxiii, xxviil. • Laws of 1822, chap. 184 2 B. L. 506. 4 NEW-YOEK JUSTICE. amendment to the Constitution adopted in 1826/ by which it was provided that Justices of the Peace should be elected by ballot in the several towns, and be divided into four classes, of one in each class, and hold their oflSces for one, two, three, and four years, so that thereafter one Justice should be an- nually elected in each town. The Constitution of 1846, which is now in force, provides,^ that the electors of the several towns, shall, at their annual town meeting, and in such manner as the Legislature may direct, elect Justices of the Peace, whose term of office shall be four years, and that their number and classification may be regulated by law. It is then provided by statute,' that there shall be four Justices of the Peace in each town, (ex- cept in the town of Hector, Tompkins county, where there are five,*) divided into foi^ classes, one of whom shall be annually elected ; and that each Justice shall hold his office for four years, except when elected to fill a vacancy, or on the erection of a new town. The election must be by ballot,' and every Justice must be an elector of the town for which he is chosen." There are also four Justices of the Peace in each of the cities of Buffalo,' Schenectady," Iltica," and Willi amsburgh ;'° three iii each of the cities of Pochester," Auburn,'^ and Syracuse ; " and two in the city of Oswego." These Justices of the Peace have, as a general rule, the same power and authority as Jus- tices of the Peace in towns. But, where there is, in any city or village, an officer known as a Police Justice, the Justices of the Peace generally have jurisdiction only in civil cases. The Police Justices generally have exclusiA-e criminal juris- diction, and, in some cases, they have civil jurisdiction also. Keference must be had to the various special statutes for the particvilar provisions in regard to these various officers. It is the duty of the clerk of every town meeting, at which 1 Amendment No. 1. ^ Laws of 1848, chap. 155. a Art. vi, sec. IT. ' Laws of 1849, chap. 184. ■'IE. S. 110, § 85. i» Laws of 18S1, chap. 91. 4 Laws of 1861, chap, 40. " Laws of 1880, ohap. 262. 1 E. 8. 848, § 2 ; Laws of 1829, chap. 856, " Laws of 1848, chap. 106. § 1 ; 2 Hill, 869. '* Laws of 184T, chap. 475 » 1 E. 8. 84«, § 11. " Laws of 1848, chap. 116. ' Laws of 1848, chap. 182. ELECTIOIf OF JUSTICES. 5 an election for Justice of the Peace shall have been had, to transmit to the clerk of his county, within ten clays thereafter, a certificate of the result of such election, under his hand , which will be evidence of the facts tlierein certified.' § 1. GeH'ificate of the Election of a Justice of the Peace. , County, ) gg . Town of j I, E. F., Clerk of the annual town meeting, held in the town of afore.^aid, on the day of instant, do hereby certify, that tlie following persons were chosen Justices of the Peace for said town, at such town meeting, viz : Ct. H. for four years ; L. M. to fill the unexpired term of S. T. Dated the day of 18 . E. F., Clerk of the annual Town Meeting in the Town of After the canvass of the votes given at a town meeting is completed, a statement of the result is required by law to be entered at length, by the clerk of the meeting, in the minutes of its proceedings, and that statement must be publicly read by him to the meeting. Such reading is notice of the result of such election to every person whose name has been entered on the poll list as a voter." But where the name of the per- son elected a Justice has not been entered on the poll list as a voter, it is the duty of the clerk of the town meeting to transmit a notice of his election to such person, within ten days after the town meeting.' When a new town is erected, an election for Justices of the Peace therein must be held at the next general election thereafter, unless a special election is directed by law.* If there be one or more Justices then residing in such new town, they will be deemed Justices thereof, and will hold their offices according to their respective classes ; and only so many additional Justices are to be chosen as will be necessary to complete the number of four for such town." After the elec- tion of the Justices in such new town, the supervisor thereof, within six days after the completion of the canvass by the county canvassers, must give notice in writing, to the Justi- J Laws of 1829, chap. 856, § 2. ■> id. Ill, § 3T. n E. S. 844, § 9. ' id. § 38. 3 id §10. 6 NEW-YOEK JUSTICE. ces elected and to the town clerk, of the time and place where he will meet them, to determine by lot the classes of such Justices, which notices must be served at least six days, and not more than twelve, previous to the time appointed therein for such meeting/ § 2. Sv/pervisor's NoUoe of Drawmg. Sir : Please take notice, that I will meet the Justices elect- ed for the town of , and the town clerk of said town, at the house of 0. P., in said town, on the day of instant, \or, next] at , in the noon, to determine by lot the classes of such Justices. Dated the day of ,18 . E. P., Supervisor of the Town of At the time and place appointed in the notice, the super- visor aijd town clerk must cause to be written on separate pieces of paper, as near alike as may be, the numbers one, two, three, four, if there shall have been four Justices elected. These pieces of paper must then be rolled up as nearly alike as may be, and deposited in a box. Each one of the persons elected Justices must then draw out one of the pieces of pa- per, and the number written thereon will be the class in which he will serve, and he will hold his office for such number of years, either one, two, three, or four, as corresponds with the number so drawn.'' If there shall have been less than four Justices chosen, the pieces of paper must correspond with the numbers of the classes vacant, and each person elected must draw one as before mentioned, and will be classed and hold his office according to the number drawn.^ If any person elected a Justice neglects to attend to such di-awiug, the su- pervisor must draw for him. If the supervisor is absent from his town, or unable to serve, or his office is vacant, the town clerk must give the notice of the drawing, and perform all the duties enjoined on the supervisor.* Duplicate certificates of such drawing, and of the result thereof, must be made and certified by the supervisor and town clerk, or such one of them as attends the same, one of which must be filed with the town clerk, and the other with the county clerk, and be UE. S.lll, §89. Md. §41- Md. § 40. < id. § 42. ELECTION OE JUSTICES. 7 recorded by them in tlie books in which the canvasses of votes are recorded. These certiiicates are conclusive evi- dence of the respective classes to which the Justices belong.' § 3. Certificate of the Drawing. County, ^ g^ , Town of We, the Supervisor and Town Clerk of the town of aforesaid, do hereby certify that on the day of instant, at the house of , in said town, a drawing was had in our presence, according to statute, to determine by lot the respec- tive classes of G. IT., S. T., &c., &c., elected Justices of the Peace for said town, at a general [or, special] election held therein, on the day of last past ; and that the follow- ing is the result of such drawing : G. H. drew for the term of four years ; S. T. drew for the term of three years ; &c., &c. Dated the day of , 18 . K. F., Supervisor, E. F., Town Clerk. If, by the erection of a new town, or the annexing of a part of one town to another, there should at any time be more than four Justices residing in any town, they will, notwith- standing, hold and exercise their offices in the town in which they reside, according to their respective classes. But on the expiration of the term of office of two or more Justices, being in the same class, only one person can be elected to fill the vacancy in such class." Whenever, by the erection of a new town, or the annexing of part of one town to another, any town is deprived of one or more Justices, by reason of their residence being within the part set off, the inhabitants of such town must, at the next general election, supply the vacancy so produced in the classes to which such Justices belong ; and if two or more Justices be elected, the same proceedings must be had, as before directed, to determine their respective classes.' The Legislature has no power to shorten the constitutional term of office of a Justice of the Peace, and this cannot be done indirectly, by the erection or division of counties ; so, 1 1 E. S. 112, § 48. s id. § 45. 'id. §41 8 NBW-YOEK JUSTICE. if a town be transferred from one county to another, or a new county be made out of several towns, the Justices residing in those towns will continue to hold their offices.' "When two or more persons are elected to the office of Jus- tice of the Peace at any annual town meeting, one of whom shall be an incumbent of the office for a term not then expired, such incumbent will be deemed elected for the regular term of four years, which will commence on the first day of Janu- ary next following such election.'' "When, at any such town meeting, except the first election in a new town, two or more persons are to be elected to the office of Justice of the Peace, it is lawful for each of the electors not voting for a person who is then an incumbent of the office, to designate on his ballot the person intended for the regular term of four years, which will commence on the first day of January then next following, by the words, or words and figures, " longest term," " four years," or " 4 years ; " and the persons having the greatest number of votes, without any reference to such desig- nation, will be deemed duly elected." The person elected, and having the greatest number of such designations, will be deemed elected for the regular term of four years.* The pre- siding officer or officers at any annual town meeting at which Justices of the Peace are elected, must determine whether any, and what person, in pursuance of the foregoing provi- sions, has been elected for the regulai- term of four years ; which determination must be made at the same time, and with the like effect, as he or they may determine what per- sons are elected to the office ; and such determination must be entered in the minutes of the proceedings of the meeting, and must be publicly read, and will*be deemed notice of the result, as in other cases." "Where no person is elected for the regular term of four years, according to the foregoing provi- sions, the classes of all the persons elected must be determined by lot, within twelve days after their election, in the presence of the supervisor and town clerk, in the manner before de- scribed ; and the same notice must be given, the same pro- 1 6 Cowon, 642 ; 9 id. 640. « id. § 8. 2 Laws of 1888, chap. 270, § 1. Md. § 4. Mi I 2. ELECTION OF JUSTICES. 9 cedings had, and tlie same certificates of tlie result made and filed.' "Where one person is elected for the regular term, in pursuance of the foregoing provisions, the other person or persons elected will be deemed elected to fill the existing va- cancy or vacancies ; and if there be more than one existing vacancy, the classes of the persons elected to fill the same must be determined by lot, within the time and in the manner be- fore prescribed." Persons elected Justices of the Peace, except it be to fill existing vacancies, enter upon the duties of their respective offices, on the first day of January next succeeding their elec- tion.' If elected to supply a vacancy or vacancies at the time existing, or in any new town, they may take the oath of office, and forthwith enter upon the duties thereof.'' There is no provision made by law for filling vacancies in the office of Justice of the Peace, except at the annual town meeting.^ If a person be elected to fill a vacancy occurring before the expiration of a full term, he can hold only for the residue of the unexpired term." Before enteriag upon the duties of his office, a Justice of the Peace must take and subscribe the constitutional oath or affirmation,' before the clerk of the county for which he is elected. This may be done at any time after his election, and before the fifteenth day of January next succeeding.' In some instances, however, a different time is prescribed by special statute. §4. Oath of Office. I do solemnly swear, \o'i\ affirm,] that I will support the Constitution of the United States, and the Constitution of the State of ISTew York, and that I will faithfully discharge the duties of the office of Justice of the Peace according to the best of my ability. Sworn and subscribed, this day ) G. H. of ,18 , before me, j P. Y., Clerk of the county of 1 Laws of 1888, chap. 270, § 5 ; Laws of 1880, » 9 Cowen, 640 ; 2 HUl, 869. H' chap. 290, § 2; 1 E. 8. 112, § 46. « Constitution of 1846, Art. vi, sec. IT. 2 Laws of 1833, chap. 270, § 6. 'id. Art. xii ; 1 E. B. 119, § 20. 3 Laws of 1829, chap. 866, § 2. s 1 E. S. 119, § 28. < Laws of 1880, chap. 290, § 1. 10 NEW-YOEK JUSTICE. The oath of office of a Justice of the Peace, duly certified by the county cleric, must be deposited in the office of the county clerk, (except where a different time is prescribed by special statute,) within fifteen days after he is notified of his election or appointment, (in case he is elected to supply an existing vacancy,) or within fifteen days after the commence- ment of his term of office.' In some places, by special statute, Justices of the Peace are required to give bonds before enter- ing on the duties of their offices, and, unless otherwise spe- cially provided, the bond must be filed in the office of the county clerk within the time before prescribed for giving the oath of office.'' In case the Justice neglects to file his oath of office or bond with the county clerk, within the time required by law, the county clerk must immediately give notice of such neglect to the supervisor of the town for which the Jus- tice was elected.' A Justice who executes any of the duties or functions of his office, without having taken and subscribed the oath of office required by law, or, when required, without having ex- ecuted and filed in the proper office the bond required by law, will forfeit his office, and be deemed guilty of a misde- meanor punishable by fine or imprisonment." But, notwith- standing the omission to take the oath, he will be a Justice dc facto until the forfeiture is judicially declared ; and his acts as such, so far as they relate to the public, or to third persons, will be valid." The title of a Justice to his office cannot be questioned except by indictment for the misde- meanor, quo luarranto, or other proceedings to remove him, or in an action by him for his fees.' The office of a Justice of the Peace will become vacant before the expiration of his term, on the happening of either of the following events :' 1. His death. 2. His resignation. 3. His removal from office. 4. His ceasing to be an inhabitant of the town for which 1 1 E. S. 119, §§ al, 24 » 1 Hill, 674 ; B id. 616 ; 1 Denlo, 575 ; 2 = Id. 120, § 26. Barionr, 820. 3 Id. § 27. » 1 Denlo, 575 ; 2 Barliour, 820. 'id. 121, §81. 'IE. S. 122, §84. JUSTICES IN CITIES. 11 he was elected, except in tlie case of tlie erection of a new town, or the annexing of a part of one town to another/ 5. His conviction of an infamous crime, which includes every offence punishable with death, or by imprisonment in a state prison,' or of any offence involving a violation of his official oath, such as treason, or malfeasance in office. 6. His refusal or neglect to take the oath of office within the time required by law, or to give or renew any bond, within the time prescribed by law. 7. The decision of a competent tribunal, declaring his elec- tion void. A resignation of a Justice of the Peace may be made to the Supervisor of his town." The Constitution of 1846 provides that Justices of the Peace may be removed after due notice, and an opportunity of being heard in their defence, by such county, city, or state courts, as may be prescribed bylaw, for causes to be assigned in the order of removal ;' and the Legislature have provided, in accordance with this clause of the Constitution, that such removal may be made by the Supreme Court, at any general term thereof.^ The causes of removal must be assigned by the Court in writing, and be filed with the clerk thereof." Besides the Justices elected in the several towns in the State, there are other Justices in some of the cities, towns and villages, some of whom are chosen in a different manner, and hold their offices by a different tenure ; the Constitution of 1846 authorizing such officers to be created by law, and to be elected at such times and in such manner as the Legis- lature may direct.'' Of this character are the Justices of the Marine court in the city of ISTew-Tork, the Justices of the District Courts in the city of New- York, the Justices of the Justices' Courts in the cities of Albany, Troy and Hudson, and the Police Justices in certain cities, towns and villages. These last named officers will be specially treated of here- after.' 1 1 E. S. 112, § 44 <■ Laws of 184T, chap. 280, § 25. 2 2 E. 8. T02, § 81. '1 E. 8. Ill, § 36. s 1 E. 8. 121, § 38, sAd. 5. ^ Ait. vi, 8eo. 18. * Art. vi, sec. IT. » Part II, Chap. I. 12 NEW-TOEK JUSTICE. The Mcarine Court of the city of New-York is a Justices' Court.' The Justices thereof, who are three in number, are chosen by the electors of the city at a general election, and hold their offices for six years, one being elected every two years. The clerk of the Court is appointed by the supervi- sors of the city and county, and holds his ofiflce for four years. The Justices and clerk receive each an annual compensation, fixed by the supervisors, which cannot be diminished during their term of ofiice, and is in lieu of all fees and perqui- sites.' The city of New- York is divided into six judicial districts, in each of which there is elected, by the qualified electors thereof, at a general election, a Justice to hold the District Coiu-t in the district.' They hold their offices for six years, commencing on the first day of January next after their elec- tion." Each District Court has a clerk appointed by the mayor and board of aldermen, who holds his office for four years.' The Justices and clerk receive each an annual compensation, fixed by the board of supervisors, which cannot be increased or diminished during their term of office.' The Justices can receive no other fees or perquisites whatever to their own use by virtue of their offices.' Five Justices of the Peace are elected every four years in the city of Albany, at the charter election, who hold their offices for four years, and until their successors are duly cho- sen and qualified. JSTotice of the election of such Justices i given in the same manner as is provided by law in regard to other officers. Tlie ballots are indorsed "Justices of the Peace," and deposited in a separate box. Three of the per- sons so elected are selected and designated by the common council of the city before the first Tuesday in May following the election, as Justices of the Justices' Ctiurt in the city. The other two persons elected are designated in like manner, as Police Justices of the city. Both classes enter upon the duties of their offices on the first Tuesday- in May next after their election. Yacancies in the office are filled by the com- > 8 Bftrtour, 162. » Id. chap. 147. » Laws of 1852, chap. 889, §§ 1 to 6. « Id. chap, 614, 3 id. chap. 824 ' id.; Laws of 1848, chap. 153. *Laws of 1851, chap. 514, S JUSTICES m CTTTES. 13 mon council. If the unexpired term be more than one year, the person appointed to fill the vacancy, holds until the first Tuesday in May thereafter, and an election must be had at the next charter election to fill the vacancy for the remainder of the unexpired term.' The Justices' Court of the city of Troy consists of three Justices, elected by the people, who hold their offices for three years, one being elected every year. Tliey are Justices of the Peace for the county of Kensselaer,^ and have power to hold a Court in said city, called " The Justices' Court of the City of Troy.'" It must proceed in all respects in like manner as a single Justice, except when otherwise provided in the special act establishing it." One Justice of the Justices' Court is annually elected in the city of Hudson, who holds his office for three years, at the same time and in the same manner as the mayor of the city is elected. Consequently there are three Justices in the city, whose duty it is to hold the Justices' Court therein. They are also Justices of the Peace of the county of Columbia.' The Justices chosen under these special lav\'s, must, of course, take the oath of office before entering upon their offi- cial duties." 1 Laws of 184S, chap. 70. * id. = Laws of 1844, chap. 198; Laws of 1848, ' Laws of 1849, chap. 58. chaps. 86, 113. ' Constitution of 1846, Art xii. ' Laws of 1834, chap. 271, § 8. PART I. OF THE CIYIL JURISDICTION OF JUSTICES OF THE PEACE. PART I. OF THE Cim JURISDICTION OF JUSTICES OF THE PEACEL CHAPTER I. OF THE NATURE AND EXTENT OF THE JURISDICnON. Jtieibdictiok, in the general sense of tlie term, is the power to make and declare the law, or ihe right to exercise author- ity." As applied to the judiciary department, it is the right of administering justice according to, and through the laws ; or, as defined by the late Mr. Justice Baldwin, of the Supreme Court of the United States, it is, " the power to hear and de- termine a cause." " The jurisdiction of Justices of the Peace in the State of [N^ew-Tork, is two-fold, civil and criminal, except that in the cities and larger towns the authority is generally divided — one set of oificers exercising the civil jurisdiction, and another, who are called Police Justices, have cognizance of criminal proceedings. In the first Part of this work, the civil jurisdic- tion of Justices of the Peace will be considered, and, in the present chapter, the general nature and extent of that juris- diction. There are two classes of coiu-ts in this State — those of gen- eral jurisdiction, and those of special or limited jurisdiction. The court held by a Justice of the Peace is called a Justice's Court, and is one of limited jurisdiction. But, though com- paratively the feeblest of our tribunals, it comes home, per- haps, nearest of all, to the people, and they are deeply inter- 1 BTirriirs Law Dictionary, TUle, JoiisdJc- » 6 Peters, 691, T09. tion. 3 18 NEW-TOEK JUSTICE. ested in tlie proper, correct, and pure administration of the law, by its officers. Although its decisions are not iinal, and it is gOYernod and directed "wholly by the statute from which its jjowers are derived, and to -which they are held in subor- dination, yet the authority it wields may be an instrument of great good, or an engine of oppression. Its proceedings are riot conducted at a distance, but in the very locality where the suitors reside, and where the diificulties and disputes brought before it for adjudication, have originated. Its judg- ments are not pronounced with the imposing formalities of higher judicatories ; yet they affect most nearly the interests and relations of neighbors and friends. In a word, all who are concerned in its determinations, can see the manner in which its functions are exercised, and are thus enabled the better to comprehend its decisions and mandates. There is a wide distinction between courts of general juris- diction, and those of limited jiu-isdiction. Every intendment of law is in favor of the former, and they are presumed to have jurisdiction until the contrary appears. But there is no presuanption in favor of courts of limited jurisdiction, miless it be the general one, that public officers are presumed to do their duty ;' and the party claiming any benefit, right, or ex- emption, under or by virtue of the proceedings of any such court, must show, affirmatively, that it had jurisdiction." Its authority, and the facts which gave it jurisdiction, must clearly appear." Accordingly, it is a principle of law, of universal force,- except where modified by special statute, that when the proceedings of a court of limited jurisdiction are pleaded, it is necessary to state sufficient facts to show its jurisdiction, and to prove those facts on the trial." "Where the judgment of an inferior court is pleaded, its authority to render the judgment, both as to subject matter and person, must be sliown. Its proceedings need not, however, be set forth in full, but sufficiently so to show the jurisdiction." The only exception to this rule is where an action is brought on a judgment for J 8 Denio, 119. ' 7 Johnson, 7S, 79 ; B Cowon, 286 ; 7 Hill, = 15 Johnaoii, 141 ; 19 id. 83, 84, 40 ; 8 Cowon, "H^/T^/ /h^' Q^X* 308; 9ia.209; 6 Wendell, 296; 111(1,647. » G Wendell, 48S; 51101,827; 6id.811; 7id. se Oowen, 221; 1 Hill, ISO; 4 Id. 76; 7 id. 89; 1 Dcnio, 692; 3 Comstock, 198. '-':' .'• .85,40; 3 Bavliour, 841. NATIJEE OF JUEISDIOTION. 19 costs, rendered against a plaintiff in a previous suit ; it being unnecessary in such ease to aver that the cause of the action in the prior suit was within the jurisdiction of the court.' Where certain facts are necessary to be proved, in order to confer jurisdiction on a court or officer of special or limited j uris- diction, before process can issue, the process will be absolute- ly void unless proofs are furnished which have a legal tendency to make out a proper case." And if the record of an inferior court omits to state the facts necessary to give jurisdiction, and they are not shown otherwise, it will not be evidence for any purpose.' In this State, however, the stringency of the foregoing rule has been somewhat relaxed, and it is not now necessary, in pleading a judgment, or other determination, of a court or officer of special jurisdiction, to state the facts conferring ju- risdiction, but such judgment or determination may be stated to have been duly given or made ; and if this allegation be controverted, the party pleading will be bound to establish on the trial the facts conferring jurisdiction.'' This provision is, however, not made applicable to pleadings in Justices' Courts. On the contrary such coiirts are expressly excluded from its operation.' Jurisdiction cannot be acqu:ired by an officer, by his merely deciding that he has it ; ° or by his falsely alleging the exist- ence of facts on which jurisdiction depends.' "Without it, the proceedings of no court or officer have any validity whatsoever. Where there is a clear want of jurisdiction, in any court, its judgment is utterly void and of no effect." Whether a court be of general or of limited jurisdiction, if it takes cognizance of a case, without having jurisdiction of the parties and of the subject matter, its proceedings are wholly void ; and in the case of a court of limited jurisdiction, like that of a Justice of the Peace, the magistrate who attempts to enforce a judgment, sentence, or conviction, founded on any such void proceed- > 3 Comstock, 198. O^ /2 -X-l/- JZ 6 19 Johnson, 40; 8 Cowen, 209; 5 Barbour, 2 9 "Wheaton, 841 ; 4 Dehio, 119 ; 8 Comstock, 607 ; 6 id. 6DT, CIS ; 2 Cowen and UiU's Notes, 41. 990. s 8 Cowen, 861, 870 ; 5 Wendell, 292 ; 11 Id. ' 5 Hill, 168. 647; 2 Cowen and Hills Notes, 1013. t-Hi:::' ^^Jt?15 Johnson, 140; 19 id. 162, 164; 4 Cowen, « Code, § 161. " ~292; 5 Wendell, 148; 6 id. 447. » id. § 8 ; Post, Part I, Chap. IX aU NEW-TOBK JUSTICE. ings, is a trespasser.' So carefully does the law protect the citizen from the consequences of the exercise of an unwarrant- ed jurisdiction, that an inferior court, no matter how special or limited its own jurisdiction may be, can inquire into the jurisdiction of a superior court, in all cases where its proceed- ings are relied on by the party claiming the benefit of the same." Courts of inferior jurisdiction are confined strictly to the authority given them, and can take nothing by implication.' Their jurisdiction is never presumed, but must always bo proved.* Consent, even, will not give jurisdiction as to the subject matter of a suit, though it will give jurisdiction in re- spect of parties.' It is because jurisdiction is the essential element of the rightful exercise of authority, that an objection to the jurisdic- tion of a court or officer is not waived by an- answer omitting to raise it ; ° and the want of jurisdiction in tribunals of special and limited jurisdiction can always be shown.' But when jurisdiction is once gained, it will not be lost by any subsequent irregularity in the proceedings ; and every presumption is in favor of their regularity where jurisdiction has been actually acquired.' Jurisdiction, too, depends on the state of things at the time of the commencement of a suit or proceeding, and if the circumstances are then such as to give jurisdiction, it cannot be ousted by any subsequent event.' A change in the condition of the parties, after the commence- ment of a suit, may work an abatement ; but a defendant can- not, by any voluntary act, as by accepting the office of consul after the commencement of an action in a State court, oust the court of the jurisdiction which it originally had." Though jurisdiction is of so much importance, that without it the acts and proceedings of courts and officers are absolute- ly void, it is not a shelter for wrong, nor will the possession of it excuse the errors that may be committed in exercising it. e — ■ ' 19 JohnsoD, 40, 41 ; 3 Cowen, 209. « 2 Sandford, 290. " 16 Johnson, 41 ; 19 id. 83 ; 8 Cowon, 206 ; 9 '6 Barbour, 60T. id. 227; 1 Hill, 180; 5 id. 285; 4 Howard's Prac- » 8 Cowen, 137, 18T ; 8Denlo,168; GBarbour, tloo Kep. 429. 621 ; 1 Code Kep. 71 ; 2 Cowen and Hill's Notes, « 1 Johnson's Cases, 20, 228. 1014. * 1 Hill, 180. » 9 Wbeaton, 537. 5 12 Johnson, 286 ; 14 id. 482 ; 17 id. 68 ; 8 "I Barbour, 449. Cowen, 206; 1 Wendell, 210: 8 Hill, 828. EXTENT OF JTIBKDICTION. 21 Where, however, an inferior court has jurisdiction, but errs in the exercise of it, its proceedings are not void, hut voidable only ; that is, they are valid until reversed.' If reversed, they then become void ; but if not appealed from and reversed, they remain valid. The limited jurisdiction of courts held by Justices of the Peace is entirely created by statute, and beyond the powers delegated to them they have no authority whatever. They can take nothing by implication, and if they act in any mat- ter over which the statute has not given them jurisdiction, their proceedings are utterly void." Parties cannot confer upon a Justice's Court jurisdiction in an action of which the statute gives it no cognizance ; and if an action for slander, libel, or assault and battery, be tried in such court, the pro- ceedings will be void, even though the parties appear and consent to go to trial.^ Every Justice of the Peace, elected in any town in this State, is authorized by statute, to hold a court for the trial of certain specified actions, and to hear, try and determine the same, according to law and equity ; and for that purpose, where no special provision is otherwise made by law, such court is vested with all the necessary powers which are pos- sessed by courts of record in this State.' The Justices of the District Coxirts in the city of New-York, of the Marine Court in the city of New-York, and of the Justices' Courts in the cities of Albany, Troy and Hudson, are also authorized to hold courts in their respective cities, and possess similar powers.' . The jurisdiction, as respects parties, given to courts held by Justices, is acquired by the service of process, or by voluntary appearance and agreement of the parties." Justices of the Peace must reside in the town for which they were chosen, and they cannot try a civil cause in any other town, except in cases otherwise provided for by law.' In all other respects, except in the trial of a civil cause, the > 8 Oowen, 178, 187 ; 2 Cowen & Hill's Notes, » Laws of 18S2, chap. 324 ; id. chap. 889 ; 2 E- 978, 989. L. 342 ; Laws of 1848, chap. 70 ; Laws of 1844, ^IJohnson's Cases, 20, 228; 1 Caines, 191; chap. 198; Laws of 1848, chaps, B6, 118; Laws 11 Johnson, 176; 17 id. 145; 8 Cowen, 809. of 1849, chap. 53. s 8 Johnson, 409 ; 12 id. 285 ; 14 id. 182 ; 8 « 2 E. B. 227, § 11 ; 7 Hill, 85. Cowen, 206 ; 1 WendeU, 210 ; 3 Hill, 823. ' 1 E. B. 102, § 12. < 2 E.B. 225, § 1 ; 10 WendeU, 213 ; 1 Denio, 128. 22 NEW-TOEK JUSTICE. territorial jurisdiction of a Justice is co-extensive with the bounds of his county.' He may issue process in any part of his county, but it must be returnable in the town in which he resides ; and it may be served in any part of the county, but not in a foreign county," except in the case of a subpoena, which may be served in an adjoining county." As we have seen, the office of a Justice is not vacated in consequence of any change in his territorial jurisdiction, by the erection of a new town, or the annexing of a part of one town to another, or by transferring a town from one county to another.' In addition to the requirements of the statute in regard to the residence of a Justice, and to the place where civil causes brought before him must be tried, it is necessary, in order to give him jurisdiction in any cause, that the parties thereto should be proper ones, and that the action should be cogni- zable before a Justice's Court. These subjects, however, will be hereafter considered." It need only be remarked here, that unless there be proper parties, and a proper cause, a Justice has no jurisdiction. Process issued by him, requiring the defendant named therein to answer in an action of slander, libel, or assault and battery, is utterly void. Or, if the amount claimed in the process exceeds his jurisdiction, he has no jurisdiction of the case, and any judgment he renders is void." Where, however, the process claimed " one hundred dollars and over," it was held that the words " and over" were void for uncertainty, and that the process was good.' A Justice may disqualify himself, by his owii act, from ex- ercising civil jurisdiction in certain cases ; and in others, he may be disqualified because of his relationship to the parties, or on the groimd of interest. 2 Q/f*^*''-^ ®* *^C^ No Justice of the Peace, becoming, or being an inn-holder or tavern-keeper, in fact, has any power or jurisdiction imder the provisions of title four of the second chapter of the third part of the Eevised Statutes, which relates to courts held by Justices of the Peace; but if a judgment has been actually rendered before a Justice, before he becomes so disqualified, > 1 Cowen, 560; 6 Id. 642. o Post, Part I, chaps. II and V. 5 9 Wendell, 319, 822. « 9 Johnson, 860 ; 6 Hill, 631 ; 4 Barbour, 828. a 2 E. S. 240, § 80. '6 Barbour, 578. •Ante, pp. 5,7,8. DISQUALIFICATIONS. 23 lie may issue execution thereupon, as in other cases." But this disqualification extends only to the trial of suits between par- ty and party, and has no reference whatever to the jurisdic- tion of a Justice of the Peace as a criminal magistrate or con- servator of the peace, nor to any other powers conferred upon bim by other statutes ; and it has been held that a Justice of the Peace is not disqualified from entertaining proceedings against a person for refusing to work upon a highway, on the complaint of an overseer of highways, although such Jus- tice was, at the time of his election, and when the proceed- ings were had before him, a tavern-keeper." If a Justice keeps a tavern without having a license, the disqualification still exists.' Li regard to interest and relationship, the statute provides that no judge of any court can sit as such, in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of con- sanguinity or affinity to either of the parties.' This provision applies to a Justice of the Peace, and is imperative. He can- not sit in any such cause ; and if he does, his acts will be void, and any judgment rendered by him will also be void.' Pelationship is very properly a disqualifying circumstance, and the consent of both of the parties to an action will not remove this disqualification, where it exists ; partiality and bias being presumed from relationship." Where a Justice, through inadvertence, or ignorance of the fact, has entertained a cause, one of the parties to which is related to him, a due regard for the sanctity of justice, and respect for his own character and position, should prompt him to dismiss it for want of jurisdiction, the moment he discovers the relation- ship. He ought not to wait to be reminded of the disability, but should suggest it himself, if aware of the fact, as must generally be the case, and promptly withdraw from the cause.' ISTo other course is compatible with dignity or self-respect. Where a cause is dismissed on account of his relationship to > 2 E. 8. 226, 1 6; law^ pf 1846, chap. 140; ■> IT Johnson, 183 ; 21 ■Wendell, 68 ; 1 Hill, 7 Barbour, S3T. /,V't *^* 664. " T Barbour, 8ST. ' 8 Comstock, 650 ; 5 Vermont Eep. 124 = 13 Johnson, 218. ' 21 WendeB, 63. •< 2 K. 8. 2T5, § 2. 24 NEW-YOEK JUSTICE. one of the parties, he cannot even render a judgment for costs.' He is divested of his jurisdiction at once, and has no authority whatever to act in the cause. As to the degree of relationship, it has been said that it should be so near as to amount, of itself, to a strong presump- tion of partiality and fraud.' Where a judge was related to a party within the seventh degree, being a second cousin, it was held that he was disqualified.' In respect to affinity, or relationship by marriage, it has been decided to be no ob- jection that the Justice is half-uncle to the plaintiff's wife ;* but where the Justice was the father-in-law of the plaintiff, it was held that his authority was questionable.' In another case, where a Justice of the Peace, who was the son-in-law of the plaintiff, insisted on retaining jurisdiction of a cause, notwithstanding it was objected to by the defendant, it was held, that this was of itself evidence that the trial was not fair and impartial, and the judgment was reversed.' And where the wife of the Justice was the sister of a party in in- terest, though the suit was prosecuted in the name of another, it was held that the Justice had no jurisdiction, and that his judgment was absolutely void.' The disqualification arising from relationship continues to exist, although the party to whom the Justice is related be a mere surety for the real party, and be fully indemnified against the consequences of the suit.' Interest on the part of a judge, in the subject matter of a cause submitted to him for decision, is wholly inconsistent with fairness and impartiality. It is a maxim of every code in every country, that no man shall be a judge in his own cause. And it is not left to his discretion, or to his sense of decency, whether he will act or not.' The statute, before cited, is express on this point. A judge cannot sit in a cause to which he is a party, or in which he is interested." Consent will not remove this disqualification ; and a judgment con- fessed before a Justice of the Peace was held void, where the 'IHIU, 664. I «191(L1T2. « n Johnson, 138. ' 1 Hill, 654 'SOomstock, 547. ^^ . > 8 Comstock, 64T. * IT Johnson, 18a / '<-?'" ■-' 1S,'IU » 1 Hopkins' Ch. Eep. 1. • 18 ii 191. ' i» 2 K. 8. 2T6, § 2 ; 21 Wendell, 68./ DISQUALIFICATIONS. 25 Justice himself owned the demand and was the plaintiff in interest.' It has been held that where a Justice has a direct interest in the amount recovered, his judgment will be void, though a remote and contingent interest will not disqualify him ;^ but the interest must be so remote as to leave no room for presu- ming undue bias or partiality. For this reason, it is' provided by statute, that no action to recover a penalty given to a town, shall be brought before any of the Justices of the Peace re- siding in the town for the benefit of which the same is prose- cuted, but that all such actions may be brought before any Justice residing in any other town in the same county.' This statutory provision applies only, however, to penalties given to a town directly, in its corporate capacity, and not to those which are required to be prosecuted for by town officers in their official capacity, such as the penalties recoverable by overseers of the poor, for the use of the poor, by commission- ers of highways for the repair of roads and bridges, and the Hke.' The consequences of a want of jurisdiction on the part of a Justice's Court, have been already mentioned. As it is a court of special and limited jurisdiction, the officer holding it cannot act beyond that jurisdiction without rendering all his proceedings absolutely void ; and he will be accountable for any injuries arising from his acts.' If a Justice should issue an attachment without any of the preliminary proof required by the statute, or try an action of assault and battery, or one in which he was directly interest- ed, or any cause while disqualified by reason of his being a tavern-keeper, any judgment he might render would be void ; and, if an execution should issue thereon, and the body or property of a party be taken, he would be liable as a tres- passer." But the officer who serves process issued by a Jus- tice who has no jurisdiction, is not liable, unless the want of jurisdiction appears on the face of the process.' 1 2 Chipman, 96. 498; IT id. 146; 8 Cowcn, 206; 9 id. 61; 1 "11 JohDSon, T6. Wendell, 210. s 1 E. 8. 86T, § 5. « 2 Caines, 108 ; 11 Johnson, 176 ; 12 ii 257 ; * 6 Hill, 68. 15 id. 493 ; 16 id. 145 ; 8 Cowen, 206. esCames, 108; llJohnson, 175; 15 id. 157, '3 Cowen, 206; 6 WendeU, 867. 26 NEW-YOEK JUSTICE. In order to render the proceedings of a Justice utterly void, it is necessary that there should be a total want of jurisdic- tion, because, if he has jurisdiction, and merely errs in exer- cising it, his acts are voidable only."' The want of jurisdiction may be shown at any stage of the proceedi^igs in a suit before a Justice ;" but his title to the office cannot be questioned in that way, because, though he be only a Justice de facto, yet his acts, so far as they relate to third persons, and to the pub- lic, are valid." Though a Justice of the Peace has jurisdiction in a civil cause, he is not obliged, in all cases, to exercise it. K he is a member of the senate or assembly, or a judge of a county court, he may act or not, so far as holding courts for the trial of civil actions is concerned, at his discretion.* CHAPTEE II. OF THE CAUSES OE ACTION COGNIZABLE BEFORE JUSTICES' COURTS. An action is defined, by the Code of Procedure, to be an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punish- ment of a public ofience." There are but two kinds of actions known in the courts of justice of this State — civil actions, and criminal actions." A criminal action is prosecuted by the people of the State, as a party, against a person charged with a public oifence, for the punishment thereof.' Every other action is a civil action.' Where the violation of a right 1 IT Jolmson, 145 ; 8 Cowen 173, 187 ; % Cow- 4 2^8. 226, § 7. en & HiU's Notes, 978, 979. » Code, § 2. n7 Johnson, 146. ««. §4- s 9 id. 185 ; 1 HiU, 674 ; 5 id. 616 ; 1 Donio, ' id. § 6. 075; 2 BmbouT, 820. 8id.§6. WHAT ACTIONS COGNIZABLE. 2T admits of botli a civil and a criminal remedy, the riglit to prosecute the one is not merged in the other.' We come now to consider the civil actions, or the causes of action, cogniza- ble before Justices' Courts. As has been before intimated, Justices of the Peace derive their authority in regard to civil proceedings exclusively from the statute. They have ci\il jurisdiction in the following actions, and no other :" 1. An action arising on contract for the recQvery of money only, if the sum claimed do not exceed ««e hundred dollars ; 2. An action for damages for an injury to the person, or to real property, or for taking, detaining, or injuring personal property, if the damages claimed do not exceed «s« hundred dollars ; 3. An action for a penalty not exceeding-»«e hundred dollars ; 4. An action commenced by attachment of property,, as now provided by statute, if the debt or damages claimed do not exceed ^ie hundred dollars ; 5. An action upon abond, conditioned for the payment of money, not exceeding -^i^iundred dollars, though the penalty exceed that sum, the judgment to be given for the sum actu- ally due. Where the payments are to be made by instalments, an action may be brought for each instalment as it becomes due ; 6. An action upon a surety bond t^en by them, though the penalty or amount claimed exceed -mie hundred dollars ; T. An action on a judgment rendered in a court of a Jus- tice of the Peace, or of a Justice's or other inferior court in a city; but no action on a judgment rendered by a Justice of the Peace, can be brought in the same county within five years after its rendition, except in case of his death, resigna- tion, incapacity to act, or removal from the county, or when the process in the original action was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or destroyed.' iCode, §T. Sid.§Tl. 28 NEW-TOEK JUSTICE. This prohibition, however, does not extend to a Justice's judg- ment recovered before the Code took effect ;' 8. To take and enter judgment on the confession of a de- fendant, where the amount confessed does not exceed two hundred and fifty dollars, in the manner prescribed by statute ; '' 9. An action for damages for fraud in the sale, purchase or exchange of personal property, if the damages claimed jio , not ,exQ,eed .gn^uodre^ dp]^ars^ ^"^^ c ^ «-- ^-^ '^j''^ *"' not exceea gno^unarea aouars. ^'- i J5ut no J ustice oi the Jr eace ha las cognizance of a civil ac- tion : ' 1. In which the people of this State are a party, excepting for penalties not exceeding one hundred dollars ; 2. Nor where the title to real property comes in question, as provided by sections 55 to 62 of the Code ; ' 3. Nor of a civil action for an assaidt, battery, false im- prisonment, libel, slander, malicious prosecution, criminal conversation, or seduction; -^ ^ ^**1r-j4f, 4. Nor of a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the Justice, exceeds four hundred dollars ; but should the Justice give judgment in a case where the joint accounts exceed four hundred dollars, it would not be void, but voidable only ;' i'j7 5. Nor of an action against an executor or administi"ator, as such. , • , - ^' /, -r" ^ ^^ =»»'<«- It was provided by the Code of Procedure, that the Marine Court of the city of New- York, which, as we have seen, is a Justices' Court, should have jurisdiction in the following cases, and no other :° 1. In actions similar to those in which courts of Justices of the Peace have jurisdiction, as above specified ; 2. In an action upon the charter or a by-law of the corpo- ration of the city of New- York, where the penalty or forfeit- ure exceeds twenty-five dollars, and does not exceed one hun- dred dollars ; ■ 2 Sandford, 403. * Post^ Part I, Chap. IX. s 2 B. 8. 246 i Post, Part I, Chap. XV. » 4 Denlo, 8T0. ' \ 'Code, §64 'Code, §65. COUETS IN NEW-TOEK CITY. 29 3. In an action between a person belonging to a vessel in the merchant service, and the owner, master or commander thereof, demanding -compensation for the performance, or damages for the violation, of a contract for services on board such vessel, during a voyage performed, in whole or in part, or intended to be performed, by such vessel, though the sum demanded exceed one hundred dollars ; 4. In an action by or against any person belonging to or on board of a vessel in the merchant service, for an assault and battery or false imprisonment, committed on board such ves- sel, upon the high seas, or in a place without the United States, of which the ordinary courts of law of this State have jurisdiction, though the damages demanded exceed one hun- dred dollars. But nothing in this, or the last preceding sub- division, is to be construed- as giving the court power to pro- ceed in any of the cases therein referred to, as a court of ad- miralty or maritime jurisdiction. But, by a subsequent statute,' it is enacted that in all cases in which the jurisdiction of the Marine Court has heretofore been limited, so that there could be no recovery therein for a larger amount than one hundred dollars, the jurisdiction shall be extended, so that in such actions the recovery of either party may hereafter be to the amount of two hundred and fifty dollars, with the costs as now allowed by law in said Court ; and, in addition thereto, in cases of default, where the defendant does not appear, when such recovery exceeds the sum of one hundred dollars, the sum of five dollars ; and in all such cases, when an issue is joined and a trial had, the sum of ten dollars. The District Courts in the city of New-York have jurisdic- tion in the following cases :" 1. In actions similar to those in which Justices of the Peace have jurisdiction, as heretofore specified. It has been deci- ded that the District Courts in the city- of New- York are Courts of Justices of the Peace, within the meaning of the section of the Code'' which prohibits the bringing of an action 1 Laws of 1862, chap. 889. " id. § 71. . 2 Code, §66. 30 NEW-TOEK JtrSTICE. on a judgment rendered by a Justice of the Peace, in the same county, within five years after its rendition ;' 2. In an action upon the charter or a by-law of the corpora- tion of tlie city of New- York, where the penalty or forfeiture does not exceed one hundred dollars. The Justices' Courts of cities, which includes the cities of Albany, Troy and Hudson, have jurisdiction in the following cases, and no other ■!' 1. In actions similar to those in which Justices of the Peace have jurisdiction, as heretofore specified ; 2. In an action upon the charter or by-laws of the corpora- tions of their respective cities, where the penalty or forfeiture does not exceed one hundred dollars. The foregoing are all the provisions of the statute confer- ring civil jurisdiction upon Justices' Courts, except in the case of penalties, which will be hereafter considered.^ It is proper here to remark that the provisions of the Ee- vised Statutes respecting courts held by Justices of the Peace in civil cases, and the course of proceeding in them, apply to the Justices' Courts in the cities of Albany, Hudson and Troy, respectively, except in the cases where repugnant provisions exist in the acts organizing those courts, or relating thereto.' But they do not apply to the courts in the city of New-York.' The laws governing those courts will be found in the Kevised Laws of 1813, vol. 2, page 313, and subsequent acts,' what was formerly the Justices' Court being now called the llarine Court,' and what were formerly the Assistant Justices' Courts being now called the District Courts in the city of New- York.' It is provided, however, by section 68 of the Code, that tlie provisions of sections 55 to 64 of the Code, both inclusive, rela- ting to forms of action, to pleadings, to the times of commen- cing actions, to tlie rules of evidence, to filing and docketing ' 2 Sandford, 402 ; 1 Code Eep. 127. " S Code Eop. 18C. = Code, § C7. 7 Laws of 1819, chap. Tl. s Post, Part I, Chap, III. e Laws of 184S, cliaps. 168, 2T6; Code, § 66- < 2 E. a. 267, § 231. Laws of 1882, chap. 824 «id. AMOUNT m CONTEOTEEST. 31 transcripts of judgments, to tlieir effect, and the mode of en- forcing them, and to proceedings where title to real property shall conie in question, shall apply to the Marine Court of the city of New-York, the District Courts in the city of ISTcw-York, and the Justices' Coui-ts of cities ; except that, after the discon- tinuance of the action in the inferior court upon an answer of title, the new action may be brought either in the Supreme Court, or in any other court having jurisdiction thereof, and except, also, that in the city and county of New-York, a judg- ment for twenty-live dollars or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, shall have the same effect as a lien, and be enforced in the same manner as, and be deemed a judgment of the Court of Common Pleas for the city and county of New- York. Before examining, in detail, the various causes of action cognizable before Justices' Courts, it will be well to refer t'D what may properly be regarded as preliminary questions in all actions brought in those courts, "sdz : the amount in con- troversy, the territorial jurisdiction, and jurisdiction of the persons of parties. 1. AMOUNT IN" CONTROVERSY. It will be perceived that the Legislature, in conferring civil jurisdiction upon Justices' Courts, has adopted the general rule or principle, that the sum or amount claimedj, or for which judgment may be rendered, shall not exceed .«»e' hun- dred dollars. To this rule there are several exceptions. Ac- tions upon surety bonds taken by Justices of the Peace, and upon judgments rendered before them not within the prohibi- tion as to time,' may be brought in Justices' Courts, and judgment rendered thereon for a sum exceeding one hundred dollars." Justices, also, have the power to take and enter judgment on the confession of a defendant, where the amount confessed does not exceed two hundred and fifty dollars.' The above exceptions equally apply to the District Courts in 1 8 Code Eep. 44. , . Md. = Code, §53. ^ ^ Ha 1. " 32 NEW-TOEK JUSTICE. the city of New-York, and to the Justices' Courts in other cities. There are other exceptions to the general rule in regard to the amount in controversy, which are confined in their application to the Marine Court in the city of New- York alone. Thus, we have already seen,' that in all cases in which the jurisdiction of that Court has heretofore been limited, so that there could be no recovery therein for a larger amount than one hundred dollars, the jurisdiction is extended, so that in such actions the recovery of either party may hereafter be to the amount of two hundred and fifty dollars. And that court has no jurisdiction of an action upon the charter or a by-law of the corporation of the city of New-York, unless the penalty or forfeiture exceeds twenty-five dollars. If the complaint sets forth a cause of action exceeding in amount the jurisdiction of the Court, but claims damages within its limit, the Court has jurisdiction ; but the complaint is bad if it claims damages to an amount beyond that limit." But the parties may present and prove their demands as they are, and, if a balance is found exceeding the Justice's juris- diction, the excess may be remitted, and judgment taken for the residue.^ An obligee of a bond, may bring an action in a Justice's Court, to enforce the condition of the bond, when the penalty exceeds one hundred dollars, if the sums specified in the con- dition, or the damages claimed for a breach, do not exceed one hundred dollars ; he is not bound, however, to bring his action in a Justice's Court, but may bring it in a Court of Record." A summons issued by a Justice stating a cause of action exceeding in amount the jurisdiction of the Court, is a nullity, and the defendant is under no obligation to appear. Neither the process issued in the cause, nor the complaint, should claim an amount exceeding the jurisdiction of the Justice.' On a contract to build a house, the plaintiff claim- ed " damages one hundred dollars and over ; the defendant demurred to the declaration, on the ground that, as the plain- tiff claimed damages for one hundred dollars and over, the 1 Ante, p. 39. ^ Justices^ Manual, Sd. ed. 18. ' 1 Johnson's Oases, 26, 888 ; 9 Johnson, 866 ; < 13 Wendell, 189 ; 10 id. 626 ; 24 id. 118, 12 id. 205 ; 6 Hill, 681. / '' ' /o - . ' - - ' * HIU, 681 ; 9 Johnson, 86& ; , AMOUNT IN CONTEOVEKSY. 33 Justice had no jurisdiction of the cause ; judgment was ren- dered for less than one hundred dollars ; it was held that the words " and over" were void for uncertainty, and had no greater effect than if an "&c." had been added, but that, if the plaintiff had claimed one hundred and fifty dollars, or any other sum more than one hundred, the Justice would have been ousted of jurisdiction.' Where there is one indivisible contract, as the sale at one time of several barrels of pot-ashes, it cannot be made the foundation of several suits, so as to recover part in one suit and p%rt in another, nor can a plaintiff divide aSi entire con- tract for the payment of one hundred and twenty-five dollars, or any sum of money exceeding the jurisdiction of a Justice of the Peace, into several smaller demands, and bring a dis- tinct action for each ; judgments rendered on a note thus divided would be reversed.' If the plaintiff bring an action for a part only of an entire and indivisible demand, the ver- dict and judgment in the action are a conclusive bar to a sub- sequent suit for another part of the same demand.' A run- ning account for goods sold, is an entire demand within the rule ; /and so is such aji account, though it include items for rents'aueSid labor.^ where 'there has been a trespass or conversion by one single indivisible act, in relation to several chattels, the plaintiff cannot split his claim for damages, by bringing separate actions for each particular article seized or converted." This rule applies only to adversary, or what are commonly called litigated or contested suits. Parties to a large demand may, by mutual agreement, divide it into any number of smaller ones, and the debtor may confess separate judgments for each." Sec. 51 of the Code, (which is the same as the former pro- vision of the Revised Statutes,) provides that in a matter of ac- count, if the sum total of the accounts of both parties, proved to the satisfaction of the Justice, exceeds four hundred dollars, he shall not have jurisdiction. This provision extends to those accounts only which are open and unliquidated between the 1 5 Barbour, 678. * 8 WendeU, 492 ; 18 id. 644 ; 15 id. 657. s 15 Johnson, 229 ; 18 id. 121, 186. ' 15 Johnson, 482. -euuo ^ C-i^j F6 a 15 Johnson, 482 ; 16 id. 136 ; 1 'Wendell, 487. » 7 Cowen, 810. ' 34 NEW-TOEK JUSTICE. parties. "When they have been settled, the balance alone is the account between them ; and unless this balance, with the other accounts, exceeds four hundred dollars, the Justice has jurisdiction." Under the provisions of the Revised Statutes, in regard to joint accounts, the language of which is almost precisely like that of the Code, where the plaintiff's claim and the defendant's set-off together exceeded four hundred dollars, and the Justice, instead of entering judgment of discooitinu- ance, proceeded with the cause, and gave judgment for the balance, it was held, that the judgment, though erroneous, was not void'for want of jurisdiction.^ 2. TERRITORIAL JURISDICTION. It has been heretofore stated, that Justices must reside in the town for which they are chosen, and cannot try a civil cause in any other town, except in cases otherwise provided for by law.' Justices of the Peace were originally mere conservators of the peace, and had no jurisdiction in civil matters ; but various powers have been conferred upon them from time to time by statute, until, as Mr. Justice Blackstone says, such an infinite variety of business has been heaped upon them, that few care to undertake, and fewer understand the office.* In this State competent persons have usually been elected. In England, from which country we have borrowed our civil institutions, these magistrates are county officers, and they have been lim- ited in their jurisdiction here only by statute. A Justice is limited, in the exercise of any official act which he is authorized to perform, to the town for which he is cho- sen, only in the trial of civil causes ; he may send his civil process' into any part of the county, but he cannot hold a Court for the trial of a civil cause out of his own town, nor make process returnable elsewhere than in the town where he resides." Until the Eevisod Statutes, a Justice might exercise his office in civil suits, any where in his county, and might make > 2 Oowen, 418. 5 ' ■ • ' -^ ' < 1 Blackstone's Comm. 354 " i Denlo, 870. ' » 9 Wendell, 319 ; 1 E. S. 102, § 12. ^1K.S. 102, §12. JURISDICTION OF THE PEESON. 36 process returnable elsewhere than in the town in which he resided ; and there is no law now limiting his action to his own town, except in civil suits.' He is substantially a town officer, and retains his authority as such, during his constitu- tional term, in whatever county it may please the Legislature to place his town." A subpoena, however, may be issued by him to compel the attendance of a witness being in the same county where the cause is to be tried, or being in an adjoin- ing county, and in no other case.' A summons, warrant, or attachment, can only issue to the county in which the Justice resides. Actions for injury to real property, or for the recovery of personal property distrained for any cause, must be tried in the county in which the cause of action or some part thereof is situated.* The Code further provides, that actions for the following causes must be tried in the county where the cause, or some part thereof, arose :° 1. For the recovery of a penalty or for- feiture imposed by statute ; except, that when it is imposed for an offence committed on a lake, river, or other stream of water situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offence was committed ; 2. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command or in his aid, shall do anything touching the duties of such officer. 3. JUKISDICTIOlSr OF THE PERSON. Jurisdiction of the person is indispensable. A Justice has jurisdiction over all persons residing in the town in which he resides ; and it is sufficient to give him jurisdiction if any one of the plaintiffs or defendants resides in his town. He has jurisdiction, also, where either the plaintiff or defendant resides in a town in the same county next adjoining his town." The Kevised Statutes further provide, that if a defendant has ab- 1 10 Wendell, 196. ■• Code, § 128. 2 6 Cowen, 642 ; 9 id., 641 ; 21 Wendell, 563. » id. § 124. f ' ■ ' s 2 E. 8. 240, § 80. ' 2 E. B. 226, § 8. • 36 IfEW-YOBK JUSTICE. sconded from his residence, actions cognizable before a Justice may be brougbt before a Justice of the town in which such defendant or his property may be ; and if the plaintiffs be all non-residents of the county, or if the defendant be a non- resident of the county, then such action may be brought be- fore any Justice of the town in which such plaintiffs or de- fendant may be.' When a warrant issues in favor of a non-resident plaintiff, the action may be brought before any Justice of the county, and need not be brought before a Justice of the town where the defendant resides, or of the next adjoining town. In a suit against a non-resident defendant, the action must be brought before a Justice of the town in which the defendant may be at the time of the commencement of the suit ; but it is not necessary that a non-resident plaintiff should be per- sonally in the county at the time of the application for process.^ . A suit in a Justice's Court must be brought in the town, or next adjoining town, wherein either the plaintiff or defendant to the record resides.' Actions cognizable before a Justice maybe brought by and against all persons who sue or are sued in their own right ; and by and against all town and county officers, in their offi- cial character ; and by and against corporations ; and Jy ex- ecutors and administrators ; * but not against an executor or administrator.' A' - / » S Oalnes, 129. * 2 E. 8. 226, § 5. ' '■ 8 6 Barbour, 60T. » Code, § 54; e Johnson, 847; T id. 866; 1 • id. 621; 8 Bandford, 823. CONTEACTS GBNEEAIXY. 37 defendant be not proceeded against as the law prescribes, this strips the Justice of all oiBcial authority, and he possesses no more power to accept a waiver, and thus acquire jurisdiction, than a private individual would have.' CHAPTER III. OF ACTIONS GENERALLY, THEIR SUBJECTS, AND INaDENTS. It will be recollected that the Code provides that Justices «f the Peace shall have civil jurisdiction in actions arising on contract for the. recovery of money only, if the sum claimed do not exceed-««e "hundred dollars. It will be proper, there- fore, to consider the various kind of contracts which most frequently constitute causes of action in Justices' Courts. 1. CONTRACTS GENERALLY. A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing. Contracts are divided into two classes, viz : contracts 5y deed^ and svmrple contracts. An agreement under seal is a contract by deed^ and is com- monly called a speaialty. A simple contract comprises all contracts, whether verbal or written, of a degree inferior to a deed. A contract not in writing is called a pa/rol contract. A simple contract must be voluntarily made, either verbally, or in writing not under seal, upon a good consideration, be- tween two or more persons capable of contracting, to do or for- bear to do some lawful act : as, if a man sells or exchanges cattle or goods for money, or any other commodity, or agrees, in consideration of a sum of money, to make a lease of lands, or forbear to prosecute a legal claim, &c. These are valid con- > 11 Barbo-ur, 309. 38 NBW-YOBK JUSTICE. tracts, because there is qmdpro quo, or one thing for another. But if a man, without any other consideration than mere good will, or natural affection, make a voluntary promise to give to another a sum of money, as for instance fifty dollars, and that he will be his debtor for that sum, this is no contract, but a mere naked promise ; for, however a man may or may not be bound, in honor or conscience, to perform such a promise, which the municipal laws of the country do not take upon them to decide, those laws will not compel the execution of such a promise. But if any thing, however ti'ifling, were done, or to be done or given for the fifty dollars, it would be a valid contract, and binding upon the parties. Six things are necessary to render a contract certain and com- plete: 1. A person competent to contract; 2. A person capable of being contracted with ; 3. A thing to be contracted for ; 4. A good and sufficient consideration ; 5. Clear and explicit words to express the contract or agreement : 6. The assent of both the contracting parties. The parties who enter into the contract must do so willing- ly, and not be biassed or influenced unduly in the matter. 1^0 precise form of words is necessary, but any words which show the assent of the parties are sufficient. Contracts are express or implied. Express Contracts are where the terms of the bargain, agreement, or promise, are openly uttered or expressed in writing, by the contracting parties themselves ; as, to pay a particular price for certain goods, or to deliver a load of hay or fifty bushels of wheat. Implied Contracts or promises are such as reason and justice dictate, and which, therefore, the law presumes that every man makes and undertakes to perform. If a person employs another to transact any business for him, or to perform any work, and there is no express agreement as to the price of his labor, the law implies that the employer undertakes to pay the person employed as much as he reasonably deserves for his labor. So, if one purchases goods of a merchant, or produce of a farmer, without any agreement as to price, the law as- sumes that the purchaser agrees to pay the seller the value of the property sold. Without any express agreement between landlord and tenant as to the use of a farm, the latter is bound CONTEAOTS OF SALE. 39 to cultivate it in a husbandlike and proper manner j and every person who undertakes any office, employment, trust, or duty, contracts Avith. those who employ him, to perform it with integrity, diligence and skill. K a surgeon, an attorney, or any professional person, is guilty of neglect of duty, he is liable to an action on an implied promise, for a reparation in damages for the injury sustained in consequence of such neg- lect. An inn-keeper, common carrier, or other bailee, is lia- ble, on an implied contract, for the goods intrusted to his care ; so, a common farrier is bound to shoe a horse skillfully, and ■without injury to him, and a carpenter or other workman, to perform his work in a workmanlike manner. Contracts are also called executed or exeoutory. If one agrees to exchange property with another and they do it im- mediately, it is called an executed contract, and conveys an interest in possession ; but if they agree, for a good consider- ation, to make the exchange at some future time, they convey to each other a property or interest in action merely, and the contract, not being performed, is called an executory contract. As a general rule, all persons having capacity and under- standing, except infants and married women, may enter into a contract, and bind themselves and their personal represen- tatives to a performance thereof. Infants and married women may, however, under certain circumstances, legally enter into contracts, as will be subsequently shown.' 2. CONTRACTS OF SALE. One of the most numerous forms of contract, and one which Justices are very frequently called upon to consider, is the contract of bargain and sale. This comprises a large class of cases, and as many as can be conveniently embraced in this work will be referred to. Sale or exchange is a transmutation of property from one man to another, in consideration of some price or recompense in value. K it be a commutation of goods for goods, it is an exchange ; but if it be a transferring of goods for money, it is called a sale. There is no difference in the law applicable to • Comyn on Contraots. 40 NEW-TOEK JUSTICE. sales, and exchanges. The seller is called tlie vendor, and tlie buyer the vendee.^ Independently of the Statute of Frauds, any words import- ing a bargain, whereby the owner of a chattel should signify his willingness and consent to sell it, and whereby another person should signify his willingness and consent to buy it, would be a sale." . ^ . ^ . 3. STATUTE. OF F-RAVDS. -^''^ '■"-'■-' ^'^^^ ' By a statute, however, which is commonly called the Stair- ute of Frauds, it is enacted that in the following cases, eyery agreement shall be void, unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party to be charged therewith : 1. Every agreement that, by its terms, is not to be perform- ed within one year from the making thereof: 2. Every special promise to answer for the debt, default, or miscarriage of another person : 3.^ Every agreement, promise or undertaking, made upon consideration of marriage, except mutual promises to marry.' 1. Every agreement that, by its terms, is not to be perform- ed within one year from the making thereof.* To bring an agreement within the statute, it must be ex- press and specific, and not to be performed within a year. If the thing promised may be performed within the year, it is not within the statute. Where A. promised to pay B. two dollars a year for his services as minister in a certain church, and had paid for several years half-yearly, it was held that this was a valid promise, for the jury might infer that it was a promise to pay half-yearly.' An agreement by a person with the overseers of the poor, to support a bastard child until it shall be five or six years old, or as long as the child shall be chargeable to the town, at six shillings per week, with the condition that the overseers may have their pay every week, is not within the Statute of Frauds ;° nor is a contract to take care of A. so long as he shall live.' ' 1 Cowen'8 Treatise, 49. » 10 Johnson, 244. ' 8 Johnson, ITO. • 10 Wendell, 426. i, / > 2 R. S. 186, § 2. '8 Snndford's Ch. E, 2T9. / / / )^C / , 'td. STATUTE OF FEAITDS. 41 If one, under a contract, not written, to work for another for tlie term of two years, for which he is to receive one hun- dred dollars, or fifty dollars a year, leave at the expiration of six months, the employer cannot recover for the non-perform- ance, the contract being within the statute.' ■<" Although one of the parties to a parol agreement is to per- form every thing on his part within the year, it is void, if a longer time is stipulated for the performance by the other party." To be within this first subdivision of the statute, the contract must be necessarily incapable of performance within a year f as, an agreement to pay for improvements in one year from the next month.* But an agreement that may be per- formed within a year, as to furnish materials and build a house within fifteen months, is not within the statute. ° The statute does not include a case where it is merely highly improbable that the time for performance may arrive within a year ; but, if the performance is commenced within the year, yet if any 'part of the contract is, by its terms, not to be completed within that period, it is within the statute.' A party who re- fuses to go on with a void contract, after having derived a benefit by a part performance, must pay for what he has received.'' A parol lease for a year, made in January, to commence the next May, is void, because it is a contract not to be perform- ed within one year from the making thereof ;° and so, too, an - agreement made in April, for board and rooms for one year from the first day of May then next ensuing." An unwritten contract made by a parent with a third person, by which his son is to serve from sixteen years of age, until he shall arrive at the age of twenty-one, is void." The plaintifi" entered into aj|arol contract to labor at a factory one year for the defend- als ; the latter to pay jEbr the services one dollar per day, and furnish the plaintifi" with employment during that time ; it did not appear from the evidence that the parties expressly fixed upon any precise day when the services were to com- 1 13 Wendell, 30T. « 8 Hill, 128. ' 2 Denlo, 87. ' id. ' 5 Hill, 200. ' T Barbour, 191 ; 7 Cowen, 864. ■• 7 Cowen, 268. » 1 Denio, 602, 606. » 16 Wendell, 336. " 5 Wendell, 204. 42 NEW-TOEK JUSTICE. mence ; in an action for a breach, in not fiirnisliing the plain- tiff with labor, &c., it being objected that the contract was void because not to be performed within a year, the court held that the plaintiff had a legal right to commence perform- ance immediately upon making the contract, and that as, from its nature, it might be completely executed within a year, the Statute of Frauds. did not apply.' 2. Every special promise to answer for the debt, default, or miscarriage of another person." • The promise here mentioned must be on behalf of a third person originally liable to be sued, otherwise it is not within the statute. It is, however, very difficult in many cases, to discover to whom credit for a debt was originally given. The general rule in respect to the sale of goods is, that if the person for whose use goods are furnished be liable at all, any promise by a third person to pay that debt must be in writing, otherwise it is void by the statute. And the memorandum must express the consideration.^ A promise to indemnify another for becoming a gua/rantor for a third person is not within the statute ; the assumption of the responsibiUty bein^a sufficient consideration for the promise.^^^Toie worcfe^^for value received," in a guaranty to pay the debt of another, is a sufficient expression of the con- sideration to render the instrument obligatory ;' so too, a seal imports a consideration." A promise by a third person to pay the debt of another, need not be expressed in any particular form ; hence, the signatures of sureties to an instrument so drawn as to express an obligation to pay on the part of their principal alone, is an effectual ^romrn in wntlng by the sure- ties, within the statute.' Where the maker of a note procures a third person to become his surety, by an endorsemenMn these words : " I guarantee the collection of the within note," the guaranty is void, because it does not express a con- sideration.' = 24 id. 8B, 266 ; 10 Barbour, 808 ; 1 Sandford, 58. ■< 2 Hffl, 668. 8 5 id. 146, 161 ; IS Wendell, 114 ; 11 Barbour, 144. J 12 Connecticut E. 465. !'2E. S. 185, §2. s Comyn on Contracts, ^ * 4 Wendell, 65T.Stt. ^/ '■-■ - ' L^ » 19 id., 56T. -2 3 •• «fc^ jSyO //y The statute is not complied with by any thing short of a statement or expression of the consideration in the note or memorandum. The agreement must state the consideration in writing ; and it cannot be implied or made out by infer- ence or conjecture.' Thus, an instrument signed by a party in the following form : " Mr. Henry Peters, I hereby agree to pay you the rent of the part of the house hired of you by Mr. John "Ward, in case he fails, the rent to be paid quar- terly, at the rate of thirty-seven dollars for the year," is a promise to answer for the debt or default of another, and isvoid for failing to express the consideration of the promise." A guar- anty, though in writing, if it express &past consideration, is void ; but parol evidence to explain, is admissible, when it is doubtful whether the consideration was executed or.not.^ It is well settled that if the whole credit be not given to the person who assumes to answer for another, his undertaking is collateral, and must be in writing, or it is void by the Statute of Frauds. ° Therefore, a parol promise to a vendor to endorse one's note, in consideration of a sale of goods to the latter, is void.'' If a promise to pay the debt of another be founded on a ' new and distinct consideration, independent of the debt, and 1 4 Hill, 178. "4 id. 559 ; 4 Bandford, 81. 2 2 Denio, 145 ; 8 Barbour, 209. « 1 Sandford 514 ; 5 Hill, 483 ; 8 Kent's Oomm. 3 4Denio, 2T5, 559; 4 Jobnson, 422; 12 id. 128. <» > X? / /' ^J^ 291; 11 Barbour, 144, , / , , a ^v- '6 Hill, 483. -?J /c?T, " Deliver him the cloth, and 7" will pay you ;" the promise is good, be- cause no credit is given to the person using the horse, or taking the goods, and the liability is entirely on the part of the person making the promise." /^ t^-^ry^ *^*<^' ijl' It has been seen, that the agreement or memorandum re- quired by the statute, need not be drawn in any particular form. It may be contained in a letter, or other writing refer- red to by letter. But in whatever form the writing may be, the agreement or promise must contain with certainty the con- sideration for the promise ; and also a specification of the terms of the agreement or contract. It must also be signed with the name of the party to be charged therewith, or his' agent lawfully authorized ; otherwise, the promise or contract , > 8 Johnson, 29, 876; 10 Id. 242, 412 ; 11 id. ' 10 Wendell, 461. 221jj'lJ Id. 176 ; 4 Sondford, 81, 611 ; 5 Barbour, < 4 Wendell, 667 ; 4 Barbonr, 181. SOI ; 11 Id. 486 ; 8 Oomstook, 385. / '' V .1, > o j Oomyn on Contracts, 62. " 17 Johnson, 114. STATUTE OF FEAtTDS. 45 will be void.' "Where A. agreed in writing to become security for silver or money, not exceeding four hundred dollars, that M. might from time to time, for two years, put into the hands of J. for the purpose of manufacturing into work, and that, if J. refused to pay, A. would assume and pay the same with interest, the delivery of the silver to J. was held to be a suffi- cient consideration upon the face of the agreement.' A guaranty in this form : " We guarantee the collection of the within note," imposes upon the person holding the guaranty the duty of diligence in the collection of the note, even to its prosecution out of the State, if the maker resides without the State, before he can resort to the guarantor.' A seal to an instrument guaranteeing the payment of a debt of a third person, expresses a consideration ;* and so do the words, "for value received." '' A letter written to G. sta- ting that if the owner of a house will rent it to G. at a given rent, he will become security to G., and directing G. to state the same and send the papers to the writer for execution, ex- presses on its face a sufficient consideration ; and the owner of the house, G. having entered into the occupancy, may maintain an action against the writer, on his refusing to exe- cute the proper security.' 3. Every agreement, promise, or undertaking, made upon consideration of marriage, except mutual promises to marry.' Any parol agreement to pay money, or make a settlement, in consideration of marriage, if not reduced to writing previ- ous to the marriage, is void ; and a subsequent marriage is not a part execution of such an agreement, so as to take it out of the statute." An ante-nuptial agreement to support the daughter of the wife, is void, if not in writing.' Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, is made void by statute, unless, » 1 Comyn on Contracts ^08. " 4 Sandford, 215. " 13 Wendell, 520. ,^ f. .. _^ ,'' £' ' 2 E. B. 185, § 2. 8 5 Barbour, 501. J2ji /i^„A~/'J L ^ '1 Comyn on pontraots, 78. 4 11 id. 14 ' »11 Paige, 257. 6 19 Wendell, 557. 46 NEW-TOEK JUSTICE. 1. A note or memorandum of sucli contract be made in writing, and be subscribed bj tbe parties to be charged thereby: or, /''^^^^^^^^"-^-^^ ^^^^ 2. Unless the buyer shall accept and receive part oi sucn goods, or the evidences, or some of them, of such things in action: or, 3. Unless the buyer shall, at the time, pay some part of the purchase money.' This section of the statute applies to every sale of tangible, moveable property, where the price is fifty dollars or more. 1. We will first consider, what note or memorandum in wri- ting, is a compliance with the statute. The memorandum should disclose who the person is with whom the contract is made, as well as the person to be charged by it ; otherwise, it is no memorandum of the bargain. It is not necessary that the name of the party with whom the contract is made, should be inserted, if there be on the face of the memorandum a suf- ficient description to show who he is.'' ISTor is the form of the memorandum of the bargain material. It must, however, state the contract with reasonable certainty, so that the sub- stance of it can be understood from the writing itself, without having recourse to parol proof.^ The memorandum must be in vwiting, and must contain in itself sufficient matter to amount to the note or memorandum, without calling in parol testimony to supply the deficiency. It must contain the whole agreement; that is to say, the parties, the subject mat- ter, and the promise. Blackburn, in his treatise on the Contract of Sale, speaking of the_ section of the English law which, like our own, requires the memorandum to be signed by the parties to be charged, says, that if the question were now open, it might seem that the words of this section required the note or memorandum to be signed on behalf of both parties to the contract, but that it is well settled, that the only signature required is a signa- ture on behalf of the party who is sought to be charged in the proceeding in which the question arises. Our own courts 1 2 E. 8. 186, § 8. / » 8 Johnson, 899, 'Blackburn on Contract of Sale, 87. STATUTE OF FEATEDS. 47 concur in this opinion, and have decided that the suhscrip- tion by the party to be charged, or by his authorized agent, is sufficient.' It is not necessary that the name of the party to be charged should be subscribed at the bottom of the instrument ; but where it is in the body of the memorandum, and in the hand- writing of the party to be charged, it is a compliance with the statute ; as a bill of sale in this form : "Albany, March 12, 1847 : Mr. Thomas James, bought of M. & S. Patten, (for the relief committee,) 3,000 bushels of yellow corn, (fifty-six pounds per bushel,) to be deliyered at the opening of the Hud- son river navigation, at our store in Albany, at eighty-one cents per bushel, $2430." ' &i^-- ■- •-^- -':' -'''' ■ 2. Something more than inere words is necessary to consti- tute a delivery and acceptance of goods, such as the statute requires. There must be some act of the parties, amounting to a transfer of the possession, and an acceptance by the buyer. Cumbrous articles are not exempt from this rule, as will be seen by the following case. The parties agreed as to the price of a pile of lumber, separated from other lumber, which had been inspected and measured, and which was on a dock, in view of the parties, at the time of the bargain. The vendor said, " The lumber is yours." The vendee then told the ven- dor to take the inspector's bill to another person, who would pay it. This was done, but payment was refused. It was held, that there was no delivery and acceptance of the lumber, within the meaning of the statute.' An actual delivery of goods, or of a part of them, is not al- ways required, but a virtual or constructive delivery may be sufficient. Those circumstances, however, which are tanta- mount to an actual delivery, ought to be so strong and une- quivocal, as to leave no doubt of the intent of the parties. As, if the vendor give the vendee an order on a depositary of the goods for their delivery, this is a good delivery ; and so, when the chattels are not in the actual possession of any one, the > 26 ■Wendell, 841 ; 2 Gaines, IIT ; 2 E. 8. 186, = 8 Barbour, 844 ; 26 Wendell, 322 ; 3 id. 112. 3. '1 Comstook. 261. / 48 NEW-TOEK JUSTICE. owner's saying to the vendee, ten miles away from them, "/ ddi/oer''' the property, is a delivery within the statute.' A contract for the sale of a boat load of wheat, to be delivered at a subsequent day, is within the statute of frauds, when no part of the wheat is^delivered at the time, no earnest paid, and no note or memorandum of the bargain made in writing.' To take the case out of the statute there must be not only a delivery, but an acceptance by the purchaser ; for any words or acts of the seller will be unavailing, without an acceptance separate the property he sells from the mass of property with which it is mixed, or the title will not pass. No sale can be perfect, and no property passes to the purchaser, when any act remains to be done by the vendor, such as weighing, measuring or counting out of a common parcel. Accordingly, where hay in the stack was sold by a school collector, under a tax warrant, but was not deliv- ered, the quantity sold being mixed with the other hay of the owner, to be weighed off, or otherwise separated from the general mass, by the purchaser at a future time, it was held that the property in the hay did not pass to the purchaser." A contract for the sale of goods, to be delivered at a future day, is not invalidated by the circumstance, that at the time of the contract, the vendor neither has the goods in his pos- session, nor has entered into any contract to buy them, nor has any reasonable expectation of becoming possessed of them at the time appointed for delivering, otherwise than by pur- chasing them after making the contract. When the goods ai'e ponderous or bulky, or cannot conveniently be delivered man- ually, the law does not require an actual delivery, but oidy that they should be put imder the absolute poAver of the ven- dee, or that his authority as owtier should be formally ack- nowledged ; or that some act should be done typical of a sur- render of them on the one side, and of an acceptance of them on the other. Tlie law only requires such a delivery as is consistent with the nature and situation of the thing sold.' 1 S Johnson, 899 ; 8 Calnoa, 182 ; T Cowon, s 2 Sondford, 167 ; 6 'Wendoll, 89T. 266. * 10 Barbour,-S»: ^^ a 6 •Wendell, 139. » 8 Sandford, 380. ' STATUTE OF FRAUDS. 49 3. The amount of purchase or earnest money paid is imma- terial, nor need it be in money, but something must be given and accepted by way of consideration, which is money, or money's worth.' A broker for sale is a person making it a trade to find pur- chasers for those who wish to sell, and vendors for those who wish to buy, and to negotiate and superintend the makino- of the bargain between them, and his authority to make the con- tract need not be in writing. But, in practice, he who employs a broker gives him a discretion as to the terms on which he is to sell or buy. In the absence, however, of express directions, he who employs a broker, (or indeed any other common agent,) must be taken to give him authority to act for him in the manner in which such agents ordinarily do act, and the other party who treats with him has a right to assume that the bro- ker has such authority from his principal, and to hold the principal bound by all acts of his broker not exceeding that apparent authority. If the principal does in fact limit the broker's authority more than usual, it is his business to see that the other party knows of such an unusual limitation. The question therefore is, what is the customary authority of brokers ? This was originally a question of fact, and is still so to some extent ; but where a trade has been long establish- ed, its customs become known to the law, and are judicially noticed as matters of law.'' It is also provided by statute, that, whenever goods shall be sold at public auction, and the auctioneer shall, at the time of sale, enter in a sale-book a memorandum specifying the nature and price of the property sold, the tei-ms of the sale, the name- of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale, within the meaning of the section last considered.^ The memorandum must be made in a sale-book at the time and place of sale, or the contract cannot be enforced ; it is not 1 5 Uill, 200. 14 id 484. 2 Blackburn on Sales, 49; 12 Johnson, 102 ; "2 E. 8. 186, § 4. 5 50 NEW-TOEK JUSTICE. enougli that a minute in pencil is made at the place of sale, of the sums bid and of the name of the highest bidder, although an entry be immediately thereafter made in a sale- book, setting forth all the particulars prescribed by statute, if such entry be made at a place different from that where the sale was had. It is not necessary that the names of the own- ers of the property should be mentioned in the entry of the memorandum, but it is sufficient if it contain the name of any factor, or agent, or person having authority to sell, on whose account the sale is made.' Where goods amounting in the aggregate to one hundred dollars, are purchased at auction, in several parcels, upon distinct and separate bids, to be paid for in a note at a future day, the whole constitutes but one contract, and the delivery of some of the parcels is sufficient to take the case out of the Statute of Frauds as to the residue.' The memorandum may be made by the kgent or clerk of the auctioneer.' All deeds of gift, all conveyances, and all transfers or as- signments, verbal or written, of goods, chattels, or things in action, made in trust, for the use of the person making the same, are, by statute, made void as against the creditors, ex- isting or subsequent, of such person." 4. SALES AND MORTGAGES OF CHATTELS., The statute declares, that every sale made by a vendor, of goods and chattels in his possession, or under his control, and every assignment of goods and chattels, by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold, mortgaged or assigned, shall be presumed to be fraudu- lent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subse- quent pm'chasors iu good faith ; and shall be conclusive evi- dence of fraud, unless it shall be made to appear, on the part of the persons claiming under such sale or assignment, that J 12 Wendell, B4S. s 8 id. 286. " 20 Id. 481 ; 17 id. 883. » 2 E. 8. 136, § 1. SAXES OF CHATTELS. 51 the same was made in good faith, and without any intent to defraud such creditors or purchasers.' The term creditors, as used in the foregoing section, inchides all persons who are creditors of the vendor or assignor, at any time while the goods oj chattels remain in his possession or under his con- jtroL" '''''' ■'''.'■ " - UA A, ' • ''■■' L- ,' i' /• This section requires an amiM^woA' continued change of possession. Tlie word actual \% used in contradistinction to virtual or constructive. An actual change, as distinguished from that which, by the mere intendment of the law, follows a transfer of the title, is an open, visible, public change, manifested by such outward signs, as render it evident that the possession of the former owner, as such, has wholly ceased. It was the intention of the Legislature, that a debtor who wishes to free himself from the imputation of fraud, when he parts with his title to goods, must also part with their use and enjoyment, so as to exclude the hazard of his deriving a false credit from the continuance of his apparent ownership ; and this intention, recommended by the strongest reasons of public policy, will be enforced by the courts. Where there has been no actual and continued change of possession, the party asserting the validity of a sale of goods, must prove affirmatively that the sale was made in good faith, and without any intent to defraud creditors or purchasers ; and loth of these propositions must be proved. The good faith of the parties, in the restricted sense in which the term is here used, is evinced by showing that the sale was not colorable and fictitious, but was founded upon a valuable, and, as the parties believed, an adequate consideration, and was intended to operate as a valid transfer of the ownership. Yet, even where a full consideration is actually given, the mo- tive of the parties may have been, to prevent the application of the goods sold to the payment of the debts of the vendor. Hence this intent must be disproved, even where the sale is real and effectual,' './•"«.>''•■' , ' , A mortgage of goods and chattels, though unaccompanied by an immediate delivery, and not followed by an actual and >2E.8.186,§5. »88andford,69. -SO OdA^-^V, Mi §6. i- /J-.-,-^ / (f^ . 52 NEW-TOEK JUSTICE. continued change of possession of the tiling mortgaged, is not void, if it be made to appear on the part of the mortgagee, that the same was made in good faith, and without any intent to defraud purchasers or creditors. Continuance of possession in the mortgagor affords the highest presumption of fraudu- lent intent, and will amount to conclusive proof, unless it be rebutted by such evidence as to make the good faith of the transaction appear affirmatively. Guilt, and not innocence, is presumed, and the burden of proof of innocence is thrown wholly upon the party claiming under the mortgage.' An ac- tual removal of the property from the premises in which it was at the time of the assignment, is not essential to a chano-e of possession. The publicity of the transfer, the exercise of an owner's authority and control over the property by the assignee, and, above all, the absence of any such control by the assignor, are the true tests of the validity of the trans- fer." -r^'i^ /^ i^'^ ■"'■'" ' ■' '' "'' ■■ ■ '-■ ■' " ■ '.•' Whether a chattel mortgage is fraudulent and void as to creditors, for want of a change of possession of the property, is a question for the jury to decide ; and their verdict will not be disturbed unless it is palpably against evidence." The statute also provides, that every mortgage, or convey- ance intended to operate as a mortgage, of goods and chattels, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against sub- sequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be iiled in the town or city where the mortgagor, if a resident of this State, shall reside at the tinie of the execution thereof; and, if not a resident, then in the city or town where the property so mortgaged shall be at the time of the execution of such instrument. In the city of New- York, such instrument must be filed in the office of the Eegister of said city ; in the several cities, other than the city of JSTew-York, and in the > 23 Wendell, 658 ; 26 id 511 ; 4 Hill, 2T1 ; 6 ^1 Hoffman's Ch. E. 4*7, 511. 14 438; lid, 488, 467,478; 9 Wendell, 198; 10 =12 Barbour, 630; 1 Comstock, 496- 28 id. 528 ; 17 id. 68. Wendell, 653 ; 4 Hill, 271. ' CHATTEL MORTGAGES. 53 several towns in which a county clerk's office is kept, in such office ; and in each of the other towns, in the office of the town clerk thereof.' /•' - Every mortgage thus filed ceases to be valid against the creditors of the person making the same, and against subse- . qnent purchasers or mortgagees in good faith , after the expi- ration of one year from the filing thereof; unless, within thirty days next preceding the expiration of the said term of one year, a true copy of such mortgage, together with a state- ment exhibiting the interest of the mortgagee in the property thereby claimed by him by virtiie thereof, shall be again filed in the office of the clerk or register pf the town or city where the mortgagor shall, then reside,!.^"^^ H''i/^f'.' V^ \,A^ ' •tf^^ If the mortgage be hot' adcompanied^by ah actual aud con- tinued change of possession of the whole of the property, JHid benot filg^n the proper, office, it is absolutely void, as against creditors of the mortgagor^ And where, the mort- gage not having been filed, the mortgagor was left in pos- session, as the mortgagee's agent, to manage the property for him, it was held, as matter of law, that there was no actual cha,nge of possession.* ,// . ■; -^ ' / ' -, ■ A new copy of the mortgage must be filed within thirty days preceding the expiration of a year from the time of filing the first mortgage or copy, and so on from year to year, if the mortgagee wishes to continue his lien.' The protec- tion given to purehasers by the statute requiring the re-filing of the mortgage, is not limited to purchasers from the mort- gagor, but includes a purchaser from his vendee, or, in case of his death, from the person in whom, but for the mortgage, the title to the property would have vested, as an executor or administrator.^ .^erM^^^t!^^ /^ ^.^./l.A^<^. If one takes a mortgage, with actual notice of another which is neither filed nor accompanied by change of posses- sion, he is not a 'bona fide mortgagee within the statute, and can gain no preference by filing his mortgage.' To show good faith in the making of a mortgage, so as to avoid a prior '2E. 8. 136, §§9, 10./ / ' ' 2 Sandford, 299. • 's \. ?' ~ s id. § 11. ' 12 Bartour, 67T. ^ 3 10 Paige, 126. ' 20 Wendell, IT. S /t«-M^ i~T^ * 2 Hill, 628; 8 Barbour, 102. 64 NEW-YOEK JUSTICE. one wMcli was not filed, nor accompanied by an actual and continued change of possession, it is essential to show that it was made for a valuable consideration, or to secure an honest debt ; and proving an honest debt, is not snflBcient, unless it jbeconnep.ted with i^^giving of the mortgage.' y /**>-*^**'.^i«^. ^ An iMstrument oy TOiclr'brie'' party agrees to sell, and the other to purchase, certain personal propert}', at a specified price, the vendor to retain a lien upon the property until the purchase price is paid, is in the nature of a chattel mortgage.'' A mortgage of goods may be valid between the parties, without writing ; but it must be in writing and filed when the rights of creditors and purchasers in, good faith are , These proVisions^f tne statute in regard to the necessity of a delivery of goods and chattels do not apply except when they have an existence and can be delivered. A contract re- lating to goods thereafter to be manufactured is not within the statute ; as where a mortgage is given upon barrels to be made, or ashes to be manufactured into pot-ashes.' In such a case, there must be fraud in fact, to render the contract void. Nor does the statute extend to contracts for the sale of goods which are not in a condition to be delivered, but which require something to be done to get them ready for delivery or to fit them for sale.' It has been held in England, that a contract for the sale of goods, to be thereafter produced by work and labor, is not within the statute requiring a delivery as against creditors, which only relates to sales where the sale is to be immediate, and the buyer immediately answerable. In one case, a coach was to be made, and in another, wheat was to be thrashed ; and as the article contracted to be sold was to be first manu- factured, or labor bestowed upon it, the contract was deemed to be one for work- and labor, or preparing an article for de- livery." If the article sold exists at the time perfect and complete, and is capable of delivery, the contract is within the statute ; but, if the article is to be afterwards manufac- 1 8 Comstock, 810. * 9 Barbour, 440. = 9 Barbour, 680. ^. ' ' ■ ' - "18 Johnson, 58. " 4 Comstock, 497. ' 1 Strange, 506 ; 4 Burrow, 2101. WAREANTT. 56 tured, or prepared by work and labor for delivery, the contract is not within the statute.' /Jw- ^ *■ -"''•-'■l -■ ■/'-' If the debt, to secure which a mortgage was given, is as- signed, the mortgage passes with the debt, as an incident.' The whole legal title to a thing mortgaged, is transferred to the mortgagee, subject only to be defeated by the perform- ance of the condition, and, on the failure of the mortgagor to perform the condition, the mortgagee acqiiires an absolute title to the chattel,' notwithstanding the mortgage contains a power of sale ;* and a tender of the money after forfeiture, does not re-vest liie legal title. ° When, however, upon a de- fault in payment, the mortgagee sells, under the power, a part of the property, and realizes enough therefrom to pay the mortgage debt, with the interest and expenses, the title to the residue re-vests absolutely in the mortgagor, and a subsequent sale of the residue is tortious ;° but, if the property is fairly sold, and brings less than the^debt, the balance may be re- covered of the mortgagor.' ^^^£- ^ 'tht-^r^^Y^ V^ ii^t-^.-fi' J/: y^^^.^p^JJO, /^Lxrt.--^^ ^'Sa-fc««.-v« /(Ct^fet-i.Ai a-hm—. ■4-^^tuJ,S70 /;Z^f4jJj/ '^^ " If an article be sold by sample, knd'tlie sample be a fair specimen of the article, and there be no deception or warranty on the part of the vendor, the vendee cannot rescind the sale. But such sale amounts to an implied warranty that the article is in bulk of the same kind, and equal in quality to the sample. If the article should turn out to be unmerchantable, from the same latent principle of infirmity in the sample as well as in the bulk of the commodity, the seller is not answer- able. The only warranty is, that the whole quantity answei-s the sample.: ?'";'■•'■•■/ . ^ ,, - i .,,/'' "''-■■■■ -;'' In cohti'acts for the sale of provisions, a warranty on the > 1 Johnson, 274 ; 6 id. 855 ; 4 Id. 421. 4 2 Kent's Comm. 480.»? ^- ?h>M6 i/./ i. » 1 Cowcn's Truatise, 355 ; 13 Wendell, 449 ; 'IT Johnson, 487 ; 18 Weidell,,426.j 12 id. 14 1 Denio, 878. » 2 Kent's Comm. 481 ; 20' Johnson, 196; 4 3 2 Oainos, 48 ; 1 Johnson, 98, 129, 274 ; 6 id. Cowen, 354, 440 ; 9 Wendell, 20 ; 12 id. 560 ; 18 854, 895 ; 18 id, 892 ; 18 id. 408 ; 20 id. 196. id. 425 j 1 Denio, 378. BAILMENT. 57 part of the seller is implied, that they are sound and whole- some, especially if the provisions be intended for domestic use.' In general, a warranty of an article sold should be made at the time of the sale ; but if, when parties are iirst in treaty respecting the sale, the owner offers to warrant the ar- ticle, the warranty will be binding, although the sale does not take place until some days afterwards." It is not necessary that the term wm'rcmt should be used, nor are any particular words required to make out a warranty. But it is essential that the affirmation made at the time of the sale should be intended by the parties as a warranty ; other- wise it is merely the opinion or judgment of the vendor.' An affirmation that a horse is not lame, accompanied by a decla- ration of the owner that he would not be afraid to warrant him, is enough to establish a warranty.* tf^-^ ^^v ,X^ • 6. BAILMEMT. Actions are frequently brought in Justices' Courts, upon c^^ntract§ of bailment. ^'Y?^^ elju.:,. afer ^^ ^ Mr. Justice Story defines bailment to be a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or pur- pose of the trust.' The one who delivers the thing in trust, is called the hailor, and the one receiving it, the lailee. Bailments are properly divided into three kinds : 1st. Those in which the trust is for the benefit of the bailor. Under this division, deposits and mandates are embraced. A deposit is a delivery of goods to be kept by the bailee, with- out recompense, for the bailor, and to be returned when he shall require it ; as when one leaves his watch, or silver with another, to be kept until his return from a journey. A man- date is a delivery of goods, to be carried from place to place, or to have some act performed about them, without reward ; as when one requests a friend to receive a package and deliv- er it for him at a particular place or to a certain person. > 8 Black. Comm. 16S ; V^ Johnson, 468 ; 18 440 ; 2 id. 433 ; 10 WendeU, 418. — ^ ••'-•' ' ' Wendell, 449 ; IT Id. 368. J -/.■7- - " « 18 Wendell, 277. 2 11 Wendell, 584 ' Story on Bailments, § 2. 3 20 Johnson, 196; 19 id. 290, 484; 4 Cowen, 58 NEW-YOEK JUSTICE. 2d. Those in which the trust is for the benefit of the bailee. Under this division is included a loan for use, or in other words a delivery of property to be used by the bailee, for a limited time, without reward ; as when one gratuitously lends his horse or watch to a friend. 3d. Those in which the trust is for the benefit of both par- ties ; which embraces articles pledged or pawned, and articles hired or let to hire. K pledge or pawn is a delivery of goods to a creditor as security for some debt or engagement. A liiri/ng is a bailment, always for reward or compensation.' This last subdivision embraces four classes : First. The hiring of a thing for use, as the hiring of a horse ; Seco'/id. The hiring of work and labor, as the hiring of an assistant ; Thvrd. The hiring of care and services, to be performed or bestowed on the thing delivered, as the deposit of a watch with a silversmith, to be repaired, or the leaving of cloth with a tailor to be made into clothes ; Fourth. The hiring of the carriage of goods, of which freight is a familiar illustration. It is obvious, that these different kinds of bailments im- pose different obligations upon the bailee.^ Under the first subdivision, where the trust is for the benefit of the bailor, the bailee is liable for gross neglect only,' and is not liable at all until the property has been demanded and refused.' "Where goods are left with a factor for sale on commission, the owner has no cause of action against the factor for the price or value of the goods, until a demand by him ; and un- til such demand the statute of limitations does not commence running.' But if the property has been delivered to a third '63 the benefit of the trust, he is responsible for the slightest neglect. He must exercise all the care and diligence that the most careful persons are accustomed to apply to their own affairs.' Under the third subdivision, Avhere both parties are to be benefitted by the trust, most of the causes of action arise. 1 story on Bailments, §§ 3 to 7. « 12 Barbour, 298 s la. %% 8, 9. « 9 Barbour, 1T6. a 7 Oowen, %1%. ' 4 Sandford, 6. « 9 Johnson, 361. COMMON CAEEIEES. 59 Common carriers, who iindertake to cany goods for a compen- sation, are bailees under tlie third subdivision, and are liable for any loss not occasioned hy the act of God, or of the public enemy. They are, therefore, liable for a loss by fire.' A common carrier cannot restrict his liability by a general notice that he will not be responsible for baggage, although such notice is brought home to the passenger y but to subject the carrier to damage for the loss thereof, it must be strictly baggage, and include neither money nor merchandize.' The rule is the same as to a carrier by water and a carrier by land." The freezing of our canals and rivers is such an interposition of superior force as excuses the delay of a com- mon carrier by water ; but he is bound to exercise ordinary forecast in anticipating the obstruction, and must use the proper means to overcome it, and exercise due diligence to accomplish the transportation as soon as the obstruction is re- moved, and, in the mean time, must not be guilty of negli- gence in the care of the property.' A common carrier remains liable until the actual delivery of the goods to the consignee ; or, if the course of business be such that delivery need not be made to the consignee, his lia- bility continues until notice of the arrival of the goods be given. He may, however, show that it is the uniform custom to leave them without notice." The liability of the carrier as insurer, does not continue beyond the period of the arrival of the goods at the place of destination, and their readiness for delivery, with notice of such readiness, when the consignee,,- can be foundj. ^J^yf^f^ft ''^ -^-i-^i^i^^ t^/C^ A eomracf to forward goods irom one place to another and distant place, subjects the party to liability as a common cai'- rier for the whole route, although his own transportation line ex:tends only a part of the distance, and the loss occurs on a portion of the route in which he is not interested ; and, if a carrier on the lakes agrees to forward by steam goods so marked, and, instead of doing so, sends them by a sailing 1 2 HiU, 628 ; 4 Sandford, 186, 490 ; 21 Wen- < 19 Wendell, 329 ; 21 id. 190. dell, 190. ' 28 id. 806. 219 Wendell, 251, 824; 21id.854; 26id.691; « 26 Wendell, 691 ; 17id.805; 14 id. 215, 225 ; 9 id. 85 ; 25 id. 459 ; 2 Hill, 623. 8 Comstock, 322, 3 25 Wendell, 459 ; 6. Hill, 586. ' 10 Barbour, 612. 60 NEW-TOEK JUSTICE. vessel, and they are lost in a gale, he is liable for their value.' Acceptance of the goods by the owner does not bar the right of recovery for injury arising from negligence, but naay properly be shown in mitigation of damages.'" Within the tJivrd subdivision hiring is embraced ; in which case the bailee is answerable for ordinary neglect. One who hires a horse to go a journey is bound to treat it as carefully as any man of common discretion would his own ;° but, for any damage happening to the horse without any negligence or misconduct of the bailee, the loss must be sustained by the bailor, and the burden of proof lies on him to show the negli- gence. It is not enough that the horse becomes disabled, if he is i}ot shown to have become so througkthe ,]3ailee's fault.* "'' When articles are delivered to another to be repaired or re- ' newed, the property of the articles, with the additions, re- mains in the former owner, both during the performance of the work, and after its completion ;' but the bailee has a lien upon the articles for the labor bestowed, and if a part of the articles has been re-delivered, the lien attaches upon the res- idue.' S iAH^'^ ^^' M^Y^^^uM$f.yL^^)^ Property is frequently delivered to a creditor, as security for a precedent debt, or for a debt incurred at the time, and when so delivered it is termed a pledge.' The legal property continues in the person making the pledge, and therein con- sists the difference between a pledge and a mortgage. In the latter case, the legal title is in the mortgagee, and the mortgage may be good without a delivery of the property ; but not so in the case of a pledge. Where no time has been fixed for re- demption, the pawnor may redeem at any time, and the right survives to his representatives, against the pawnee and his representatives. Where the pawnee has parted with the pledge, the pawnor need not tender the sum borrowed, to en- title himself to an action. ° A creditor cannot sell the prop- erty pledged without giving notice to the debtor to redeem.' » 8 Sandford, 810. » 26 Wendell, 46T. ' '' > 28 Wendell, 806. ^ fi f ■ /■ <- ' * I'""'"' ''■''-'^■ > 8 Barbonr, 880. Sf C.Z^- ^ ^ "2 Coinea, 200 ; 1 Sandford, 861 ; 2 Comstoci, * 18 Johnson, 211 j 8 Bartonr, 880. 448. « 2 Donlo, 628. » 2 Comstook, 448 ; 4 Denio, 227. t) 3 Comyn on Contracts, 3. ^ 1 Cowon's TrcatLso, 14 ji, 14T; 5 Johnson, 2 id. 18T, 149. 85 ; 12 id. 374. s 21 Wendell, 583; 2 HiU, 606; 2 Kent's • id. 368. Comm. 46. ' 6 Cowen, 431. 4 7 Cowen, 662; 2 Denio, 91. » 15 Wendell, 412. NEW-TOEK JUSTICE. My_negligeTicc imputaUetohimjmajiterejam^ ' ^^* noti^ney paidumler a^isml'eqi law!^!/ Moirey peicl through a mutual mistrike of facts, in relation to which both parties were equally bound to inquire, may be recovered back ; but the party claiming a return of the money must prove the facts which entitle him to it.^ Money paid to an attorney as costs, where costs were not recoverable, and through mutual ignorance of the law, may be recovered back.^ For money paid, laid out, and expended for another, at liis request, an action may be maintained, but it must appear that money or its equivalent has been actually advanced." The request need not be express, but may be by implication. An action cannot he maintained for a voluntary payment, where there is no legal oljligation ; as where an oiBcer, hav- ing an execution to collect, or a collector, having a warrant for taxes, pays the amount without any request from the party liable to pay.' Where money is paid in consequence of a legal liability to which one is subject, but which another ought to pay, an action may be maintained ; as in the case of a surety who is compelled to pay the debt of his princijial.' An action will lie for goods sold and delivered, or for goods bargained to be sold, by -one person to another. If the price is agreed upon, the purchaser is 'hound to pay it ; hut if no price is stipulated, the law implies that the purchaser sliall pay what the articles sold are reasonably worth. The plain- tiif must prove the contract of sale, the delivery of the goods, and their value. When the terms of sale are agreed on, and the bargain is closed, and every thing that the seller has to do with the goods is complete, the contract of sale becomes absolute as between the parties, without actual payment or delivery, and the property and the risk of accident to the goods vest in the buyer. He is entitled to the goods on payment or tender of the price, and not otherwise, when nothing is said on the sale as to the time of delivery, or the time of payment. In such 1 8 Wendell, 69. jj . )-i- ''f "'' -' ''■ ttse, 178. " 1 mil, 287 ; 3 Comstock, 280 ; 8 Barlom, ' 3 Jolmson, 484 ; 8 id. 486 ; 10 id. 861 ■ 34 869. ^'i« ,. .' .■ ■ id. 87..' ^ 3 18 Wendoll, 686. » 4 Hill, 345 ; 8 Johnson, 249. * 8 Jolmson, 202; 7 id. 182; 1 Cowen'sTrea- CONTEACTS EELATOTG TO LANDS. 63 cases, the payment or tender of the price is a condition prece- dent, and the buyer cannot take the goods, or sue for them, without payment. But if the goods are sold upon credit, and nothing is agreed ixpon as to the time of delivering the goods, the vendee is entitled to their immediate possession, and the right of possession and property vest at once in him. Tliis right of possession is, however, not absolute, but is liable to be defeated, if he becomes insolvent before he obtains pos- session. If the seller has even despatched the goods to the buyer, and insolvency occurs, he has a right to stop them in trmisltu.^ When property is sold to be paid for on delivery, the ven- dee, to sustain an action for their non-delivery, must aver and prove a request to deliver." 8. CONTEACTS RELATING TO LANDS. In this connection it will be proper to state some of the .provisions in regard to conveyances and contracts relative to lands. No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or con- cerning lands, or in any manner relating thereto, can be crea- ted, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surren- dering or declaring the same, or by his lawful agent, there- unto authorized by writing. And every contract for the leasing for a longer period than one year, or for the sale of any lands or any interest in lands, is void, unless the con- tract, or some note or memorandum thereof, expressing the consi^deration thereof, be in writing, and be subscribed by the party by whom. the lease or sale is miide.''^|'^ ^•''^•■7 -— i-- . A parol coiiufact for the leasmg of lands for more than one year is absolutely void.' So are an agreement that one may build and maintain a permanent dam upon the land of anoth- er ;' an agreement that one may build a house and occupy it 1 2 Konfs Gomm. 492. « 28 Wendell, 616. 2 2 Cowen's Treatise, 260; lOMasB. Eep. 280. » 15 id. 880; 6 Barbour, 51. S2E.S.134, §6;'id.l35, §8. /..: 64 NEW-YOEK JUSTICE. for an indefinite time ;' an agreement for the exchange of lands f a contract to sell and deliver the improvements and possession of lands ;' an agreement to extend the time of per- formance of a contract for the conveyance of land ;' an agree- ment to convey land for services, though the services be ren- dered in pursuance of the agreement ;" an agreement to bid in premises upon a sale for the benefit of another ;' a lease for the term of one year, to commence in future ;' the grant of a right to enter upon and occupy the land of another, for a permanent purpose, or for an indefinite time ;' and the sale of growing trees, fruit and grass.' The sale of a pew in a church is a sale of an interest in real estate, and the contract for such a sale, or some note or mem- orandum thereof, expressing the consideration, must be in writing and be subscribed by the vendor, or his agent ; the print- ed name of the vendor is not a sufficient subscription.'" ,:'/ I 9. USE AND OCCUPATION OF LANDS. /, . A landlord may recoverj in^Jan action on the case, a reasron- iable satisfaction for the use and occupation of any lands or tenements, by any person under any agreement not made by deed ; and if any parol demise or other agreement, not being by deed, by which a certain rent is reserved, shall appear in evidence on the trial of any such action, the plaintiff shall not, on that account, be debarred from a recovery, but may make use thereof as evidence of the amount of the damages to be recovered." The landlord can recover for use and occupa- tion, only for the time the tenant has actuall}' occupied the prem- ises, either by himself or by his sub-tenant ; and where he has never entered imder the lease or agreement, either in person or hj an under-tenant or agent, thereyCan h^io recover W^. Jj 1^; . .. ,>:\3'i.^^ l'^- PROMISSORY NOTES. A promissory note may be defined to be a written engage- 1 5 Barbour, 879. Oh. E. 221. a 15 Johnson, 608. »1 Denio, ISOi 1 Barbonr, 542 ; 2 id. 618; s 7 Id. 206. 6 id. 864. g' iul"-/7/lu^i/'>^-*X4 »6IIilI,47; 8 Com8tO(ik,611; 2 Barbour's ' '// PEOMISSOEY NOTES. 65 ment by one person to pay another person therein named, ab- solutely and unconditionally, a certain sum of money, at a time specified therein. It must be for the payment of money only, and not for the performance of some other act, nor can it be in the alternative, or payable on any contingency, or out of a particular fund.' A written instrument, payable to the estate of M. L., deceased, is not a promissory note.' Notes are negotiable or not negotiable. " For value re- ceived, Auburn, ISTov. 28, 1852, 1 promise to pay Eichard Eoe one hundred dollars, six months from date. John Doe."- — is not a negotiable note, for it is, payable to one person only. " For value received, Auburn, Nov. 28, 1852, 1 promise to pay Eichard Eoe, or bearer, {or order,) two hundred and fifty dollars, three months from date, with interest. John Doe." — , k^negotiable^ote^^^^^-^^^/*- '^^'^ ^z-- /^t.^ Ing per^n fowSom the note is payable, is called tlie payee. When he transfers it by endorsing his name on the paper, he is called an endorser. "When he simply endorses his name on the note, it is called an endorsement in blank. When he endorses his name and the name of the person to whom, or to whose order, the note is to be paid, it is called an endorsement in full, and the person to whom it is endorsed, is called the endorsee. A restrictive endorsement is an endorsement made to one person only, and not to him or his order. Formerly, notes wanting negotiable words could not be transferred or negotiated so as to enable the assignee to sue upon them in his own name ;' but now, as the Code requires all actions to be brought in the name of the party in interest, the question of •negotiability does not afiect the parties to, or the form of, the action. When, however, a party takes a non-negotiable note, he takes it subject to all equities between the original parties." A note negotiable, but not endorsed, transferred by delivery, and a note not negotiable, transferred by delivery, are open to every equitable defence which the maker had against them at the time of the transfer ; and if the payee could not have recov- ered at that time, the holder cannot.' ' story on PronussorjoNote^l 1 ;,6 Cowen, ' 8 Kent's Comm. TT. 108./i/^A^6V9_ •A**^ 7^3 4 3 Johnson, 489; 11 Bartonr, 620. ni Bartour, 241. 7 7 Ui^ ^ ^ f^:i/ » 9 id. 214. 66 NEW-YOBK JUSTICE. A note payable to bearer, or order, is negotiable, and may be transferred, so as to give to the holder all the rights of the payee. When a note is payable to bearer, it may be trans- ferred by mere delivery without endorsement ; and when it is payable to order, it may be transferred by endorsing the payee's name on the note, and passing the title by delivery. It is not necessary that the endorsement should be upon the back of the note, but it is sufficient if it be on the face. If it be by a mark, there must be a subscribing witness.' An endorser may exempt himself from liability by adding after his endorsement the words, without recowrse.' jL^ ,A^/ It is not necessary that a note should be dated^ Sor need the words value reoewed be inserted, for every note imports a consideration, unless the contrary appears by the note itself." The date of an instrument in writing is Only presumptive ev- idence of the time of its actual execution, and, whenever fraud or mistake is alleged, may be rebutted by parol evi- dence." Any benefit to the person making the promise, or any loss, trouble, or inconvenience to, or charge upon, the person to whom it is made, is a sufficient consideration.' The maker of a note in the ordinary form, is entitled to three days beyond the time expressed in the note, in which to pay it. Tliese are called days of grace, and are to be computed exclusive of the day on which the note would oth- erwise become due, and inclusive of the third day of grace.' Thus, a note dated the first day of January, 1852, payable one mon^^after date, would be due the first day of February, 1852. But the three days of grace will postpone the pay- ment until the fourth day of February. If a note thus dated were payable in thirty days from date, the days of grace would begin on the first day of February, and end on the third. When the last day of grace falls on a Sunday or hol- iday, the note becomes due and payable on the preceding day.' The following days, viz : the first day of January, the fourth day of July, the twenty-fifth day of December, and any day appointed or recommended by the Governor of this State, or I story on Promissory Notes, § 1B2. -/ ''^«^ ^^ 6 smith on Contracts, 63. -2 "T'/Jw-*/— i>/ ' 8 Kent's Oomm. 92 ; 9 Barbour, 828. " Story on Promissory Notes, § 21T. 5 9 Johnson, 117. 1 ' ' /, 'id. §220; 8 HIU, (jST; 8 Wendell, 466; 4 id. < 4 Sandford, 79. 666 ; 4 Hill, 129. PEOMISSORT NOTES. 67 the President of the United States, as a day of fast or thanks- giving, are for all purposes whatsoever as regards the pre- senting for payment or acceptance,and the protesting and giv- ing notice of the dishonor of bills of exchange, bank checks and promissory notes, to be treated and considered as Sun- day.',' y^^-<^^'*^>-<*v.^^:i^'****'^ «^7 /^^i*^ 4f/f/^Z ^-^ As befweenth^OTiginal parties to a note, or the endorser and endorsee, the consideration of the note may always be inquired into ; but where a negotiable note has, before matu- I'ity, passed into the hands of a hona fide holder for a valua- ble consideration, without notice, the original consideration of , the note cannot, as a general rule, be inquired into. *% f^f.'^a. il Possession is prima lacie evidence ol property m negotia-/ ■. ble paper. And a lyona fide holder can recover upon it, though it came to him from a person who had stolen it from the true owner, provided he took it innocently, and without notice, in the course of trade, for a valuable consideration, be- fore maturity, and under circumstances of due caution ; and he need not account for its possession, unless suspicion be raised. This doctrine is founded on the commercial policy of sustaining the credit and,-©irculatio,n of AOffiotiable instru- /^■^ Every note, •absolutely void m its inception, is equally void m the hands of an innocent holder, whether transferred be- fore or after due ; as as a note given upon a usurious considera- tion.' A total failure of the consideration of a note, or that it was given without consideration, may Ije proved on the triah imder the general denial of the complaint.* ^-*^ ' OkmJ ^ An endorseewno buys' a note at less than its face, can re- cover against the endorser no more than the sum for which he bought the note, with interest ; but he may recover the full amount of the note against the maker. 'o^-'^t*'^'*^ ^CJ^yZ^ If property is sold for the purpose of defrauding creditors, and a promissory note is taken to secure the payment of the consideration money, the contract being illegal and void, no action will lie by the payee on such note. Nor will the note 1 Laws of 1849, chap. 261.- !. «11 Barbonr, 21B. > 3 Kent's Comm. T8. » 9 id. 64T. ) 3 Laws of 1887, chap. 480, § 1. NEW-YOEK JtrSTIOE. be rendered valid by including in it a sum honestly due, and growing out of a different transaction ; for, when a part is void, the whole is void, and the party must sue on the origi- nal consideration.' /-> ■" >' I "/l As between the makers of a promissory note and the hold- er, all are alike liable, and all principals ; but, as between themselves, their rights depend upon other questions, which are the proper subjects of parol evidence. The fact that one of the signers of such a note adds to his signature the word " security," is evidence prmia facie that he signed the note as surety for somebody ; but even that presumption may be overcome by proof that, though he signed as security, he was in fact anrincipal debtor.^ />^,.^''''".. ± ' ' "'"' ^"'^ There is a difterende between the contract made by the ma- ker, and the contract made by the endorser, of a promissory note. The contract of the maker is, that he will pay the note when it becomes due ; and if it is payable at a particular place, that he will pay it at that place. The contract of the endor- ser is : 1st. That the instrument itself and the antecedent sig- natures thereon are genuine ; 2d. That he, the endorser, has a good title to the instrument ; and, 3d. That the note will be duly paid at maturity, and, if not, that he will, on due present- ment of it for payment to the maker, and non-payment, and due aotice, thereof,Ti|;ake it up.' - '-■ ■' A promissory note is joint or several. It is joint, when made by two or more persons, and when no words indicating a separate promise appear upon it. If the 'vrovdiS, jointly and s&verally are used, it is a joint and several note. When two or more persons sign a note written thus: I promise to pay, it'is a joint and several note, and the makers may be sued jointly or severally. If the note be signed in the name of a firm, whether the name represents in form only one person, or more than one person, it is the joint note of the firm, and all the partners may be jointly sued thereon, and that, whether the words be, we pro'fnise, or I promise.^ In a note written "we jointly or severally promise," (yr is » 10 Barbour, mA^^ ^^<^ 9 U Notes, %1B6. 7 L^9 ^ ^- ^ ^ ^"^^ " id. 612. Z-f. /.'.'■ > ^ / f . V'^i— ^ <> » Md. § 6T. ' » 8 Kent's Comm. 83 ; Story on Promissory PEOMISSOET NOTES. 69 construed to mean and, and it is a joint and several note. If the note is written we promise, and signed hj A. B. principal, and C. D. surety, it is the joint note of both ; and if it is writ- ten I promise, and signed in the same manner, it is the joint and several note of both. The word surety does not affect "the rights of the payee or subsequent holder; it merely indi- cates ^e rejatjon of the makers to each other. iT ' r i}"/''^^ -^R) maintain a suit against an endorser of a rio^, it is neces- sary that a demand of payment be made of the maker, or, if the note is payable at a particular place, at that place, and that payment be refused ; and the demand must be mad.e on the precise day the note falls due.' If the note is not paid, notice must be given to the endorser ; '' and, at farthest, on the next day after the dishonor.' If the third day of grace falls on a Sunday or a holiday, it will be sufficient to give the notice on the next succeeding day.'' As tawhat are holidays, see ante p. QQ.fptAijcJj aJt^duju 'f Jfn*L4^ ^'• ■ ' ' '6 Barbour, 282. » 18 Johnson, 280 ; 8 Wendell, 1T8. « id. 64T. * IT Johnson, 248 ; 8 Oowen, 2T1 ; 8 Wendell, « 2 id. 51 ; 2 Oomstock, 226. 13. '° 15 Law Eeporter, (now series, vol. 5,) 541. > 2 Johnson's Oases, 409 ; 5 HIU, 143. INTEEEST. 71 hundred dollars for one year ; and at that rate for a greater or less sum, and for a longer or shorter time.' Interest is not allowed on an unliquidated account for goods sold and delivered, where no time is fixed for its payment, and there is no agreement, express or implied, to pay interest f nor is it recoverable upon an unliquidated account for work, labor, and services/ But, where a merchant has been in the habit' of charging his customers interest after a limited period of credit, those who deal with him with the knowledge of the fact, are bound to pay interest. So, too, where there is a gen- eral usage in any particular trade or branch of business, to charge and allow interest, parties having knowledge of the usage, are presumed to contract in reference to it." The rule for calculating interest, where a partial payment has been made, is, to calculate interest on the principal, up to the time when the payment was made, add this interest to the principal, and then deduct the payment. This rule, however, is to be adopted only in cases where the payment exceeds the interest due ; otherwise it will be taking interest upon interest. When a payment falls short of the interest due, it must not be deducted ; but interest must be calcula- ted upon the principal, up to the time when the payments, taken together, will exceed the interest due, and the deduc- tion must then be made.' When a balance of an accoimt is received, without any charge for interest, interest cannot afterwards be demanded." If payment of the principal is accepted in full, it is a good accord and satisfaction ;' but it must be accepted in full, for payment of the amount of the principal, if made, generally, on an account composed of principal and interest, applies first to extinguish the interest, and thus leaves a part of the principal still due.° The receipt of the principal debt, where interest is only recoverable as damages, is a bar to action for the interest.' 1 2 E. 8. 7T1, § 1. '8 Cowen, = 4 Cowen, 497 ; 6 id. 193 ; 4 Barbour, 8fi ; 2 '8 Johnson's Ch. E. 53T. Comstook, 186 ; 3 id. 602. ' 5 Johnson, 268. 3 7 Wendell, 178. « 8 id. 109 ; 4 id. 83 ; 1 Barbonr, 235 ; 8 Com- » 11 Paige, 142. stock, 502. ' 5 Johnson, 268. / ^ , ' 5 Cowen, 881. /S' ffUiJ^ /{. Y2 NEW-YOEK JUSTICE. 12. USURY. It is provided by statute, that no person or corporation shall, directly or indirectly, take or receive in money, goods or things in action, or in any other way, any greater sum or greater value, for the loan or forbearance of any money, goods or things in action, than seven dollars upon one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter time ;' and every person who, for any such loan or forbearance, shall pay or deliver any greater sum or value than is above allowed to be received, and his person- al representatives, may recover, in an action against the per- son who shall have taken or received the same, and his per- sonal representatives, the amount of the money so paid or val- ue delivered, above the rate aforesaid, if such action be brought within one year after such payment or delivery.' K such stiit be not brought within the said one year, and prosecuted with effect, the overseer of the poor of the town where such pay- ment may have been made, or any county superintendent of the poor of the county in which the payment has been made, may sue for and recover the said sum with costs, at any time within three years after the said one year.' All bonds, bills, notes, assurances, conveyances, and all oth- er contracts or securities whatsoever, (except bottonuy and respondentia bonds and contracts,) and all deposits of goods or other things whatsoever, whereupon or whereby there shall be reserved or taken, or secured or agreed to be reserved or ta- ken, any greater sum or greater value, for the loan or forbear- ance of any money, goods, or other things in action, than is above prescribed, are void." "Whenever, in an action at law, the defendant pleads or gives notice of the defence of usury, and verifies the truth of his plea or notice by affidavit, he may, for the purpose of proving the usury, call and examine the plaintiff as a witness, in the same manner as other witnesses may be called and examined." It is not illegal to stipulate for compound interest, or that interest, as it becomes due, shall be converted into principal, ilE. S. TT2, §2. Md. §6. Md. § 8. » id, § 9. Md.§4. USUET. 73 and carry interest ; and a note given for the balance of an account, on wMch account interest has been annually added, is not usurious.' Including interest upon interest in a note given upon settlement, is not usury.' To take out interest in advance, as in discounting a note, is not usurious, and there is no distinction in this respect between bankers and others f nor is taking interest for the three days of grace.' A mistake in the computation of interest will not make a loan usurious ; and, when the mistake is trifling, the Court will presume that there was a mistake in calculation, rather than an error in the principle of computation.' A note paya- ble one year from date, with interest quarterly, is not usuri- ous ;' nor is a note presumptively usurious, because it bears interest from a time prior to its date.' Selling uncurrent bank notes, which are two or three per cent, below par in the mar- ket, for their nominal amount in current money to be paid in thirty days, if a cover, for a loan, is usury.'' The criterion by which to detect usury, where any thing is given besides money in consummating a loan, is the market value of that which is given, and the gain to the lender in. I charging and obtaining, more than such market. valije.i^^'—V/ The statute prohibiting usury applies only to those loans which are in substance and effect loans of money. The inten- tion of the statute is, to prohibit more than seven per cent, upon direct loans of money, and upon loans of money made indirectly by way of loan of goods and things in action. A loan of goods, or of a chose in action, unless intended as a mere cover for a loan of money, is not usurious. And, in all cases where the contract is in form one of sale or exchange, if the Court, in looking at the whole transaction, can see that the value secured to the vendor was, in good faith, but the price of the thing sold or exchanged by him, there can be no usury, whatever the price may be, or the mode in which it may be secured. Where, however, the object of the parties is a loan of money, and something else, under the form of a 1 1 Johnson's Ch. E. 14 ; 1 Wendell, 521. » id, 664, 678. •> 3 Barbour, 822. " 5 Paige, 98. » 15 Johnson, 102 ; 2 Cowen, 664,.6T8, 712 ; '8 WendeU, 533. 4 "WendeU, 652. - ^ /W " ' " '- •-..'". « T Paige, 615. 4 3 Oowen, T12. o/ -42- 1 K- ^■' i » 4 Oomstock, 46a 74 NEW-TOKK JUSTICE. sale or an exchange, is substituted for it, the principal of the loan or debt will be the value in money received by the nom- inal vendor.' '...;'■ '/ ' A usurious contract is executed and extinguished by pay- ment ; therefore, after usurious loans and advances have been paid, they cannot be recovered back, except that the excess may be sued for within a year, under the statute.' A security for the payment of money, not usurious in its inception, cannot be rendered usurious by any subsequent agreement. Thus, where a note is given in renewal of a for- mer note, and a premium or interest above seven per cent, is exacted for the renewal, the new note is usurious and void, although a separate note was given for the premium ; but the old note is not thereby affected.' The taint of usury, however, in the original security, affects all subsequent secm-ities ;^ and if a security be taken for a valid loan and a prior usurious one^ io render a contract'usunous, both parties must be cogni- zant of the facts which constitute the usury ; and, if a hoTia fide holder of a negotiable note, which is tainted with usury in the hands of the payee, receives a new security from the maker, and gives up the note, without any knowledge of the usury, the new security is not usurious.' If the payee of a note made for his accommodation, transfers it as business pa- per, at an usurious discount, to a T)ona fide purchaser, the maker may s^t up the usury in defence.' " - ' C" ^ 13. PAYMENT. The law is well established, that the acceptance by a credi- tor of the note of a third person, in full satisfaction of an ex- isting debt, is an extinguishment of the original indebtedness ; and this, though the note so taken is for a less sum than the whole debt." The law, however, is otherwise where the note of the debtor himself is taken. In the latter case the credi- t 8 Comstook, 844 « 1 Barbour's Oh. E. 48 ; 2 Saodford, 85. « 10 Barbour, 5T6 ; 11 id. 80. ' 2 Denio, 821. 3 19 Johnson, 294. « 20 Johnson, T6; 1 'Wendell, 172; 14 Id. * 9 Oowon, 64T; 21 jWendeJl, 108. 110; 21 id. 450; 22 id. 341 ; 10 Barbour, 8T2. » 6 Id. 415. k I. 'i*yil / f "" ILLEGAX CONTEACTS. 15 tor, if tlie note is not paid at maturity, may sue upon the ori- ginal mdebj^dne^s.' ,^'f^'- ■-- ''"-' '■''Vl.'^'''',, "- '' "WHw'e tiheliote of a third person is taken in full iatisfac- tion of a debt, on condition that it shall be paid at maturity, and not otherwise, and the note is not paid, the creditor may insist that the contract is broken, and claim the whole amount of the original debt ; but if he waives the forfeiture, and re- tains the note, and finally receives the full amount of it from the maker, he cannot afterwards , proceed against the debtor for the balance of the original demand.' Taking the note of a third person for an existing debt is not payment, unless the creditor agrees to receive it in payment.' A payment in current bank bills, if accepted without objec- tion,, is a good payment." A payment in counterfeit bank bills is a nullity, and will not .discharge the debt, thoiagh both parties suppose them to be genuine. So, also, of payment in the genuine bills of a bank which has failed, neither party being aware of the fact. But in such cases the party receiving the bills must return them within a reasonable time after discov- ering their worthlessness, or he will be obliged to sustain the loss.' '^■,^.fzi^^^ A^,..j.uJ^ i>^ .t^ '^f'^U- rjy, ^ ^ ed-^2- 14. ILLEGAL CONTEACTS. There is a large class of contracts which are illegal, either by common or statute law, and upon which no action can be maintained. A contract is illegal at common law on three grounds : because it violates morality ; or because it is op- posed to public policy ; or because it is tainted with fraud. If the contract grows immediately out of, or is connected with, an illegal or immoral act, a coiirt of justice will not enforce it. The consideration must not only be valuable, but it must be lawful, and not repugnant to law, or sound policy, or good morals." Contracts for obscene prints, or for books whose tendency is immoral, or for such as are libels on individuals, and for which the person who published them might have been indict- Md. ; 8 Cowen, 79 ; 3 WendeU, 68. . < 9 Barbour, IT. 2 10 Barbour, 3T2. ,. j » 6 HUl, 840. 3 4 Comstock, 812. / A-«'>t^ / u , '2 Kent's Comm. 466. lui tile priut; ui xiL£uui euiuj luc ±a w .t ui tjlcoo ui presiimed, till the, defendant proves the con- i statme contain no express prohibition, all 76 NEW-TOEK JUSTICE. ed for a libel, are void.' A printer cannot recover for pub- lishing such prints or books ;" nor a lessor for the use and occupation of a house, let for the purposes of prostitution.^ So, also, a promise by a putative father, to pay for the board of a woman and her bastard child, the purpose of both parties being to facilitate a continued state of cohabitation, is void.* In Yermont, it has been decided that an action cannot be main- tained for the recovery of property which the owner had pre- pared to use in violation of law ; as, for pieces of German sil- ver, representing Mexican coin.° And where it is an offence by statute to sell spirituous liquors without license, the courts will not aid the vendor in enforcing payment. But in an ac- tion to recover for the price of liquor sold, the lawfulness of the sale will be trary.'^g-^;^^ _ _ Although the statme contain no express prohibition, contracts which contravene the general policy of the common law, are void ; as, a contract to pay money for killing, robbing, stealing, committing an assault and battery or trespass, and the like.' So, also, are all contracts in restraint of marriage and of trade, they being against public policy. With respect to contracts in restraint of trade, if they totally prohibit the carrying on of a particular business at any place within the State, they are void ; for such a general restraint is injurious to the public. But contracts for a limited restraint, as that a man will not exercise his trade, or carry on his busi- ness, in a particular place, or within certain limits, are valid, provided they are entered into for some good reason inde- pendent of pecuniary considerations." Agreements between proprietors of boats running on the interior lakes of this State, regulating the price of freight and fare, and prohibiting the parties from engaging in similar business out of the association, have been declared void, as being in restraint of trade." When a man covenants to do a thing then lawful for him to do, and a subsequent statute makes it unlawful to do it, the > 4 Esplnasse, 9T. « 12 Barbonr, 21. ' Chit^ on ContraetB, 217. ' 1 Cowon's TrooUse, 271, • 1 Esplnasso, 18. .. ^ ,/ ^ r , * 2 Kent's Comm. 4CT, ^ 3 >& ■> ■ ■ * 6 Cowen, 268(I«a^' itotcAJ *^ OVu*^ ^//, When two persons a^ply to the Governor of the State to be appointed to the same office, and it is agreed that one of them shall withdraw his application, and aid the other in procuring the appointment, in consideration of which the fees and emol- uments of the office are to be divided between them, such contract is illegal and void. All agreements by which one person engages to pay another for his aid or influence in pro- curing an appointment to office, are illegal and void." A note given in consideration of forbearance to bid at a public auction is fraudulent and void, as against public policy. Certain articles being advertised for sale at public auction, it was agreed between A. and B. that they would not bid against each other, but that A. should buy the articles, and after- wards divide the same equally with B. A. made the pur- chase, but refused to deliver to B. the one half of the goods. In an action brought by B. against A., to recover one-half of the proiits of the purchase, it was held that the agreement was without consideration and void, and against public policy.' And so, where a contract or job for making a road was put up for sale at auction, and A. and B. agreed that one of them should bid, and that, if the contract should be struck off to the one bidding, the other should have an equal share in it, and it was struck off to B., against whom A. afterwards brought an action for a breach of the agreement between them, it was held th^t the agreementwaswithout considera- tion wAyoii)..'/i^!!:^!^^^)^i,a^^/^:i^a^^ The same principle applies with more force to sales on execution. The law has regulated sales on execution with a jealous care, and has provided a course of proceeding likely to promote a fair competition, and a combination to prevent competition is contrary to public policy, and to the interests 1 5 Cowon, 638. ' 6 JohnBon, 194. 5 4 Comatock, 449. * 8 id. 444. 78 NEW-TOKK JUSTICE. of the original debtor, whose property is liable to be sacrificed by such a combination. The abstaining from bidding, upon concert and by agreement, under the promise of a benefit for thus abstaining, is the evil the law intends to redress. A public auction is open, to every, one, but thiere must be no combination among persons competent to bid, silencing such bidders, for the tendency to sacrifice the debtor's property is inevitable.' Any agreement or combination, the object and effect of which are to chill a sale at auction and stifle compe- tition, is illegal, and no party to the agreement or combina- tion can derive any benefit therefi-om." Many contracts are illegal by statute, such as usury, and betting on elections, or on horse races, or on any game of chance. A contract founded in part upon an illegal considera- tion, is entirely void." '^'^ <^,''f, ' . 15. CONTRACTS MADE ON SUNDAY. It was for sometime unsettled whether by the common law contracts made on Sunday were void. It seems now to be well established, that nothing but judicial proceedings are prohibited upon Sunday, by the common law, and that any other business can be transacted on that day, unless prohibited by statute.* But, although contracts may be made on Sun- day, yet work performed on that day cannot be recovered for, unless the parties keep the last day of the week as the Sab- bath, or the work is one of necessity or charity.' -C ^ . :- '- ^-'■' "When the day fixed by a contract for its performance, falls on Sunday, the party has Monday in which to perform, except where grace is allowed by the custom of mer- chants ; " but when the last day allowed by statute for performing an act, falls on Sunday, it must be done on Satur- day.' An award, being a judicial proceeding, if made and published on Sunday, is void.' All shooting, hunting, fishing, sporting, playing, horse- racing, gan^n- frequenting of tippling houses, and any un- an*||' freqi: 1. 112; r^Bj^ ', 1 13 JohnBon. 112 ; i iS^m 782 ; i John- « 8 id. 2T ; 12 WondoU, 69 ; 18 id. 425, 429, Bon's Oh. E. 264. ^^ » 1 Hill, 76 ; 2 Sandford, BIV"/ ^&,S. i » 2 Elchardson's Eq. E. 855; 1 Story's Eq. ' 20 Wendell, 205. Jur. § 298; 2 McLean, 277. ^ 7 Oowen, 147 ; 1 Sandford, 664 > 6 Oowen, 547 ; 6 Id. 43. «% Cowen 27 CONTEACTS MADE ON STTUDAT. 79 lawful exercises or pastimes, are prohibited on Sunday ; also all travelling on that day, unless in cases of charity or neces- sity, or in going or returning from some church or place of worship within the distance of twenty miles, or in going for medical aid or medicines, or in visiting the sick, or carrying the mail, or in going express by order of some public officer, or in removing a family or furniture when the removal was commenced on some other day ; and all servile labor or work, except works of necessity and charity, unless done by some person who observes some other day as the Sabbath. Every person, over fourteen years of age, offending against these provisions, forfeits one dollar for each offence.' Every person exposing to sale, on Sunday, any wares, mer- chandize, fruits, herbs, goods or chattels, except meats, milk and fish, which may be sold before nine o'clock in the morn- ing, forfeits the articles thus offered to sale to the use of the poor, and a Justice may issue a warrant for their seizure, upon conviction of the offender." In Massachusetts, where the statute in regard to the obser- vance of the Sabbath is siibstantially like our own, the fol- lowing case has been decided. The plaintiff let a horse, on Sunday, to be driven on a pleasure drive to Chelsea. The defendant drove to a different place, and by a route which varied materially from the route to Chelsea, and the horse was killed by immoderate driving. In an action for the value of the horse, it was decided that the plaintiff could not recover. Letting the horse by the plaintiff was a matter of business, which he could not do on the Lord's day, and travelling with the horse for pleasure by the defendant, was doing what he could not lawfully do on that day. The plaintiff", therefore, acted unlawfully in letting the horse, and let him knowingly for an unlawful purpose. No person can maintain an action founded on an unlawful proceeding, and it cannot be main- tained, where the plaintiff, in making out his case, is obliged to prove an illegal act as a link in the chain of evidence." 1 1 E. S. 675, § TO. ' 14 Law Eeporter, (new series, vol. 4,) 861. "id. 6T6, § Tl. 80 NEW-TOEK JUSTICE. , , ,16. FRAUDULENT CONTRACTS. , . ' " • /UJ^ In all contracts, tVe law presumes that the parties act m good faith, and where fraud is practised, the party who is deceived is not bound by the, agi-eement, for the fraud vitiates the contract.' To obtain justice is the object of the law, and fraud is what it most abhors. Misrepresentation is a statement made by one party to a contract, to the other, that a thing relating to it is in fact in a particular way, when he does not know it is so, and when in truth it is not as represented ; but, in order to avoid a contract^ the representation must be both false and fraudu- lent, and must work an injury to the party." If a party intentionally misrepresents a material fact, or produces a false impression by words or acts, in order to mislead, or to obtain an undue advantage, it is a case of manifest fraud.' Fraud must be proved, but it is not necessary that it should be established by direct proof. Eesort may be had to cir- cumstantial or presumptive evidence. The declarations of persons while engaged in accomplishing a fraud, are evidence equally with their acts. So, too, as evidence of good faith, it is competent for one to show that he took legal advice, upon a full statement of the facts, before making a pur- chase.^ Z?/^^./^- ^ Ji^ / ^'^ 'h -'^^''" ; • - ^ If a contract be entered into upon a misrepresentation, and the party discovers the fraud before he enters upon the performance, and performs instead of rescinding the contract, he is concluded. But, if there is fraud in a sale on the part of the vendor, the vendee may rescind the contract and recover back the consideration paid." He must first, how- ever, restore, or offer to restore, all he has received under the contract.' Yet, if the thing is valueless, and not the thing contracted for, the vendee may maintain an action without returning it.' And where the note of an irresponsible third person was received, through false representations, as part of 1 6 Jolinson, 110. / , '24 id. 74 = 1 Bouvier'B Institutes, 801. « 2 Hill, 28S ; 1 Denlo, C9. "IStory'sEq. Jur. §193. '2 id. 139. ■1 7 Cowen, 801; 18 WendeU, 868; 12 id. 41. FEATJDtTLENT OONTEACTS. 81 the price, and the defendant was informed that the plaintiff looked to him for the amount, it was held that an offer on the argument of the case, to return the note, was sufficient' A purchase of goods with a preconceived design of not pay- ing for them, is such a fraud as will avoid the sale.' A fraudulent concealment, a^jvell as a false representation, renders a contract v6id._^,^^onceajmenr is the unlawful sup- ' pression by one of the parties to a contract, of any fact or circumstance which in justice ought to be known. It is oplvj ho;^ever, when f^party is bound in justice tQ^diynlge a fact, that Slenc'e'or coric^lment is fraudulent,', Mr. JuBtice^ Cowen says, that the well established rule, in cases of this nature is, that one party must not practise any artifice to conceal defects, or make any representations for the purpose of throwing the buyer off his guard,* Where, however, the means of information relative to facts and circumstances affecting the value of the commodity sold, are equally acces- sible to both parties, and neither of them says or does any thing to impose upon the other, the disclosure of any supe- rior knowledge which one party may have over the other, as to those facts and circumstances, is not requisite to the validity of the contract.' Jf :jl, ; c ' c J /t' /. "'' ' The common law affords to every one reasonable protection against fraud in dealing ; but it does not go to the romantic length of giving indemnity against the consequences of indo- lence and folly, or a careless indifference to the ordinary and accessible means of information. It reconciles the claims of convenience with the duties of good faith, to every extent compatible with the interests of commerce. This it does by requiring a purchaser to direct his attention to those particu- lars which may be supposed to be within the reach of his observation and judgment." If there be any intentional concealment, or suppression of material facts, in the making of a contract, in cases in which both parties have not equal access to the means of information, it will be deemed unfair dealing, and will vitiate and avoid > 2 Bandfora, 421. * 1 Cowen's Treatise, 3SJ, . • -; »1 Hill, 802. . »2Wlieaton,lTayv/3iiU'-J 3 1 Bouvier'8 iBstitntes, 802. / 7 /l^jji /W." 2 Kent's Comto. 484. 82 NBW-YOEK JTTSTIOE. the contract. As a general rule, each party is bound to com- municate to the other his knowledge of material facts, pro- vided he knows the other to be ignorant of them, and they be not open and naked, or equally within the reach of his observation. In the sale of a ship which has a defect known to the seller, and which the buyer cannot possibly discover, the seller is bound to disclose' it, and the concealment is a breach of honesty and good faith. So, too, selling an unsound arti- cle, knowing it to be unsound, for a sound price, is fraudulent.' A mere false assertion of value, when no warranty is intended, is not fraudulent, because the assertion is a matter of opinion, which does not imply knowledge, and upon which men may differ. Every person relies at his peril on the opinion of others, when he has an equal opportunity to form and exercise his own judgment." Fraud, says Mr. Justice Cowen, is a crime ; and whenever a court and jury are convinced of its existence, to the injury of another, they may and should give damages, as in other actions for a wrong involving moral guilt, with a liberal and unsparing hand, both to compensate the plaintiff for his extra- ordinary trouble in vindicating himself against the injury, and to furnish a moral^ lesson by the punishment of the defendant. / 'j , ' i !'^' An action lies for a false recommendation as to the credit of one person, by which another sustains damage, if such rec- ommendation be made with the intent to deceive and defraud such other person. The information, however, must be com- municated to, and be relied upon by, the party injured, and must cause the damage. The false representation may con- sist in the suppression of truth, as well as in the assertion of falsehood ; as, where one recommends another to be worthy of credit, and suppresses the fact that he holds judgments against him, and that he is in embarrassed circumstances. Nor is it necessary that the person making the false represen- tation should be benefitted by the fraud, or that the intention should be to defraud any one in particular.' An action can be maintained for a false affirmation, where 12 Kent's Comm. 482; IHIU, £11,817; C ° 2 Eont's Oomm. 48^ Johnson, 110, 181. ' . =7 Wendiu, X. 6 JfM 3 i'^. FEATIDirLENT CONTEACTS. 83 a certificate is given to an individual that lie is an honest, in- dustrious, reputable and good citizen, of good morals and hab- its, and that, in the opinion of the person giving the certificate, the individual recommended would honorably endeavor faith- fully to perform every engagement he should make in any mat- ter of business or credit, and where the person recommended, on the strength of the certificate, obtains goods on credit, on its being shown that the certificate was false, and so known to be by the person giving it.' Fraud in the sale of horses is the ground of numerous ac- tions in Justices' Courts. Mr. Justice Cowen, in citing the following case, decided in North Carolina, says, that it is a true and most excellent commentary upon the doctrine of fraud in the sale of horses :" This was an action on the case to recover damages for deceit in the sale of a horse. The plaintiff bought the horse in question from the defendant. Soon after, in riding him from "Windsor to Newbern, the horse became perfectly blind. It appeared in evidence, that the defendant had purchased the horse for one hundred and twenty- eight dollars, about twelve months before he sold him. His eyes were at that time defective. The defendant applied a remedy, which produced temporary relief But, whenever the horse was rode a journey, the disorder returned. The de- fendant, in bringing him from Tennessee, had discovered that he was getting blind, and was obliged to drive very mode- rately to prevent the loss of his eyesight. The plaintiff pur- ' chased without being apprised of this defect. The defendant had refused to warrant, saying, he was determined never to do 80, as he had already been injured by warranting his horses. He observed, while exposing his horse to sale, that the eyes of some horses looked dull, but this was occasioned by their having travelled on dusty roads. He afterwards acknowledg- ed, that he knew the horse was subject to blindness, but thought he was not answerable, as he had not warranted. The horse, after he became blind, was sold for sixty dollars. This was the evidence on the part of the plaintiff. The defendant en- deavored, but unsuccessfally, to prove that the horse, after he came to the plaintiff's possession, had received some injury, > 14 Wendell, 226. ' ' 1 Cowen's Treatise, 871. 84 NEW-TOEK JUSTICE. by wliicli the blindness bad been occasioned. After argu- ments by counsel, the Court observed, that this was an action to recover damages for deceit in the sale of a horse. The grounds of the action were, that the property sold was defec- tive, that this defect was known to the seller, and unknown to the purchaser. If the jury believed that the plaintiff did know of the defect at the time he bought the horse, he could not complain. He had sustained no injury from the defend- ant. It was his own folly. But, it was for the jury to decide whether he did or did not know it. It was not because he might possibly have known it, that the defendant was to be discharged. If, indeed, the defect was so open and visible that he could not well avoid discovering it, then the jury must of course presume against him. In the present case, skill might have been required. The plaintiff might not have been possessed of this skill. If in fact he was ignorant of the cir- cumstances, though a person better acquainted with horses might have discovered it, the deceit and criminality in the de- fendant were still the same. He was imposing on the plain- tiff as sound, what he new to be unsound. He was not act- ing with that fairness and plain-dealing which became an hon- est man. Again, it had been said the plaintiff placed no con- fidence in the defendant, that he saw the horse, examined and liked him. Why was the defendant bound to disclose the de- fects of the property, which it was his interest to sell to the best advantage ? He was bound by the rules of good faith and honesty. He was bound, as a man of truth, of candor and of fair dealing. It is a principle in morals, as a maxim in the municipal law, that a suppression of truth is often equal to a suggestion of falsehood ; a deception may be as effectual- ly occasioned by the one as by the other. Men must place some confidence in one another, or there must be an end to civil intercoiirse. The confidence reposed by the plaintiff in the defendant in the present case, necessarily arose from the jiature of the transaction. It was not an unreasonable one. The Courts of that country from which we derive our laws, ■have lately gone a gi-eat way in enforcing moral obligations, .and I trust we shall go at least as far. In a recent case deci- ded in England, A. had sold a vessel to B., who agreed to take H0SBA1TD AlTD WIFE. 85 her just as she stood. It appeared afterwards, that some of her timbers were unsound, and that this was known to A., but could not have been known to B. when he purchased. Tlie Court determined, that A. ought, injustice and honesty, to have disclosed this defect, and, as he had not done so, should be liable to B. in damages. Many persons in this coimtry have considered themselves loosed from the obligations of morality when they were trading in horses. It is time to correct this false notion. If the jury believe the evidence in the present case, and that the plaintiff knew not the unsoundness of the horse at the time he purchased, they will give ample and, ex- . "'^ '■-"■■•;•'- 17. HUSBAND AND WIFE.^"^" "^ Actions frequently arise in Justices' Courts growing out of the relation of husband and wife, and especially in reference to the liability of the former for debts contracted by the latter. //.-^ti'^,:,, '. /.-. /. ,, -' ,,. ',., ^cfw-''-' a- ,i r. -■> t- ■ The rights of the husband in the property of the wife have been materially changed in the State of E^ ew-Tork by a law passed in 1848, and amended in 1849. The provisions of the two acts, in brief, are these : 1. The property of a woman, thereafter marrying, continues her sole and separate property, as if she were a single female, not liable to her husband's debts, nor subject to his disposal ; 2. A like provision as to the prop- erty of a woman married at the time of the act, except so far as the same may be liable for the debts of the husband pre- viously contracted ; 3. Any married woman may inherit, or take property by gift, &c., from any person other than her husband, and hold the same to her separate use, and convey and devise the same, in the same manner as if she were un- married ; 4. Married women entitled to trust estates, are au- thorized to receive conveyances from the trustees, of the trust property, for their separate use ; 5. Contracts made in contem- plation of marriage remain in full force after ,the man-iage takes place.' -^^ 'h ^<^^-^'^/- ^i-«4iy ^y. ^5=^«., /- ^^ j- Tn'ese provisions make a great alteration in what has hith- to-' > Laws of 1848, chap. 200; Laws of 1849, chap. 875. NEW-YOEK JUSTICE. erto been understood to be the law affecting the relation of busband and wife. It is not within the scope of this work to enquire what are the probable changes that will be produced by the provisions referred to. It has, however, been decided, that the act of 1848, so far as it relates to existing rights of property in married persons, is unconstitutional and void ;' and also, that it was not intended to deprive the husband of his estate as tenant by the curtesy in his wife's real estate, in case of his surviving her, unless where she has devised or convey- ed it under the statute. The estate is vested in the wife, du- ring coverture, and, upon her death, intestate, after issue born alive, leaving her husband surviving, it descends to her heirs, charged with his rights as tenant by the curtesy. If there is no issue of the naarriage born alive, then the estate becomes perfect and absolute inher heus.V^ 7^^ *«< id. 114. « 9 id. 866. , f- » 2 Kent's Oomm. 185. M Bradford, 64. ' i' • ^' PAEENT AND CHILD. 87 The husband is answerable for the wife's debts contracted before coverture, but if they are not collected during the cov- erture, he is discharged. If the wife be indebted before mar- riage, and the husband appropriates all her personal property to himself, and she dies before the creditors have collected their debts, the husband is no longer liable, and the creditors are left without remedy. If the husband dies before the debts are collected, his representatives are not liable ; but the w^fe , remains personally liable.' ^t-'^'^ ^ ^ ^^}z^f6.^/:. The husband is bound to provide the wife with necessaries suitable to her situation and his condition in life." If he turns her away, he gives her credit, wherever she eoes, and must pay tor necessaries fuwushgd her.^ It the wiie vomnta- rily leaves her husband, though not in an adulterous manner, he is not liable for any of her contracts, though the person furnishing the necessaries had no notice of her elopement.* The adultery of the husband justifies the wife in leaving him, and he remains liable for necessaries furnished her.' The husband is liable, also, for a forfeiture under a penal statute, incurred by the wife.' Where a husband and his wife have separated, and he provides a suitable separate maintenance for her, which is promptly paid, he is not liable even for ne- cessaries furnished to her.' The husband is liable for the torts and frauds of the wife committed during marriage ; if committed in his company, or by his order, he alone is liable ; if not, they are jointly liable, and the wife must be joined in the suit. Where the remedy for the tort is only damages by suit, or a fine, both are liable ; if the remedy be sought by imprisonment on execution, the husband alone is liable.' 18. PAKENT AND CHILD. The liability of parents to maintain their children, is a fre- quent subject of inquiry before Justices. The inability of children to provide for themselves, renders it necessary that some persons should maintain them, and nature as well as 1 2 Kent's Comm.143. , »a^» f£> » /18andford,483. a id. 146. U - ■ . .^ 7rjJ^J^' ^*' Jo'">^»'^ ^^■ 9 11 Johnson, 281 ; 12 id. 2«, 298. '*'-* ' ' 8 id. 72 ; 10 id. 88. < id. '2 Kent's Comna. 149. ' 88 NEW-YOEK JUSTICE. the common law point out the. parents as the most proper per- „.„„ y/^ ^.t*^-, .^t-* >i-'/ ^'ry^ ^i<^M-c--ce/ c~^/?---^f;^ The statute law of this State has provided, that the father, mother, and children, who are of suiBcient ability, of any poor person who is blind, old, lame, impotent or decrepid, so as to be unable by work to maintain himself, shall, at their own charge, relieve and maintain such poor person, in such manner as shall be approved by the overseers of the poor of the town where such poor person may be.' This provision is intended to protect the public against the support of parent or child, when either is able to maintain the other. A parent, during the minority of his children, is bound to provide reasonably for their maintenance and education, and may be sued for necessaries furnished, and schooling- given to them, imder just and reasonable circumstances. This provi- sion the father is bound to afford, if he has the ability, even though the children have property of their own." If a parent neglects to furnish his infant child with the ne- cessaries of life, a third person may supply them, and the parent will be liable for the amount ; but the third person must 'take notice of what is necessary for the infant according to his situation in life. If, however, the infant lives with his parent, and is provided for by him, the parent is not charge- able, even for necessaries.' What is necessary for the child, must be left to the discretion of the parent. A recent decision in our own courts, apparently conflicting with this principle of the liability of the parent, holds, that there is no legal liability on the part of a parent to maintain his child, independent of the statute ; and that a person who supplies an infant with necessaries, cannot maintain an action against the parent therefor, unless the latter has expressly or impliedly contracted to pay the amount.' In that case, the minor left his mother in express disobedience of her com- mands, to live with the plaintiff, who furnished him with clothing, board, schooling, &c., and there was no evidence to show that the mother was not able and willing to provide suitably for her child. But this decision may perhaps be ■1E.8.614,§1. =18 Johnson, 480; U Paige, 188..i'<^/?*v/^ > g Kent's Comm. 191. < 10 Barbovir, 488. nwAiTTs. 89 reconciled witli the law as previously held, upon the principle that the relation of parent and child is sufficient to imply a contract. A step-father is not bound in law to support his step-child- ren ; yet, if he acts the part of a father towards them, and does support them, the law will not imply on their part a promise to pay him for such support. His assumed relation of father entitles him on the one hand to their services without com- pensation, and entitles them on the qdier to their support and education, without xQm^^y&\:\o^^j^''^fy^^ %:^,^:) '-j^^^ , \ ' ^ ' '^^ A parent is entitl'ea" to the earnings of his minor child, where there is no express or implied agreement that payment may be made to the child.^ But if a minor makes a contract for his services, on his own account, and the father knows it, and makes no objection, it seems ther^is an implied assent that thje son shall have his, earnings.' " ' ^ !*a») \» .,'• /.£-■' A step-father' is hot entitled by law' t6 the custody or ser- vices of the children of his wife by a former kusband, nor is he bound to maintain them." ^.^„ '/ , ,'/-.' JiS- INFANTS. . -''^"^ "'-'^-^t Jc^'i-' ^ The age of of twenty-one is the period of majority for both sexes. Most of the acts of infants are voidable only, and not absolutely void. As a general rule, an infant may affirm or disavow a contract, when he becomes of age ; but, if the con- tract is absolutely void, the party contracting with the infant is discharged as well as the infant. Where the deed or con- tract of an infant is voidable only, it is nevertheless binding on the adult with whom he deals, so long as it remains execu- tory, and is not rescinded by the infant. But, in all such contracts, an infant, on coming of age, is bound to give notice of his disaffirmance of the contract in a reasonable time, and his affirmance may be inferred from his positive acts in further- ance of the contract, or from his tacit assent, under circumstan- ces which do not excuse his silence.* - '. iy^f, '^iw'''i« 10 Barbour, 800. 90 NEW-TOKK JUSTICE. An infant is liable for necessaries, provided the articles are neceesary for him under the circumstances and condition m -which he is placed ; and necessaries for an infant's wife and children are understood to be necessaries for him. But if an infant lives with his father or guardian, and their care and protection are duly exercised, he cannot bind himself even for necessaries/ '^^ ' ji '■ ^'-f 'H.^ " ^ ^ -' - ' ' ^^ . . , If an infant pays money on his contract, and enjoys the benefit of it, and then avoids it when he comes of age, he cannot recover back the consideration paid ; and if he avoids an executed contract when he comes of age, on the ground of infancy, he must restore the consideration which he, has re- P:^#- ' :.. /. -'■' .'■-.'■ / .^^a /■'=' /An infant may have money or other property, indepen- dently of his father ; and the father may so far emancipate him, as to allow him to labor for others, and enjoy his own earnings,' but he cannot so far emancipate him, as to render his contracts binding. Infancy is a personal privilege, of which no one but the infant can take advantage ; so that, when an infant is sued with a person of full age, the latter cannot plead the "infancy of his co-defendant." If a defendant plead infancy, and the Justice is of opinion that he is not an infant, and the jury find that he is not, the infancy cannot, on an appeal, be as- signed for error, it being against the record and the fact as found by the jury.' For all wrongs, infants are liable, the same as adults. They are liable civilly for an assault ;' and, if an infant commits a trespass, without authority of his father, he is himself answer- able, and not the father.' So, too, an infant is liable for ob- taining goods fraudulently,' and may be punished by indict- ment." ,^/ ^' -'■.''*.' 'n' , ^^. ^n ; ^ /j^'^'^'- A minor Is ineKgiBle to bfiiee, &'na, if he beelected c'onsta- ble, and execute process as such, he is a trespasser.' ' ..... O*.. c.''.. ,. . 1 ., , J.*".:->fc Z 1 2 Kent's Comm. 289 ; 9 Johnson, 141 ; 2 " 8 Wendell, 891. Paige, 419. ' i Denio, 176. a 2 Kent's Comm. 240; T HUl, 110. 1 . ' SB Hill, 891. "TCowen, 93; 8 id. 86. '26^0^611,899. 4 2 Johnson, 2T9 ; T Cowon, 181. >° 28 id. 490. • 8 Johnson, 487. EXEOUTOES AND ADMINISTEATOES. 91 20. EXECUTORS AND ADMINISTRATORS. Executors and administrators are the representatives of the personal property of deceased persons, among which property- are the debts due to the deceased, not collected at their deaths. These debts executors and administrators have the power to collect, and forthat purpose they may bring actions against the, debtprs.' <>^/';;; ".','-'- , ,, , ,'■' , ^''l^'/-) As a general rule, and at common law, independent of statutory provisions, whatever actions a deceased person might have had to enforce the performance of personal contracts, the same actions, for the most part, the executor or adminis- trator may have also. And in such cases the right of action for a breach of the contract, committed in the. lifetime of the deceased, in general survives upon his death to his executor or administrator. But when the right of action is founded upon some wrong done to the person or property of the de- ceased, for which damages only are recoverable, the rule of the common law is, that the action dies with the person against whom the injury was committed, and cannot be main- tained by his personal representative.' This rule has, however, been considerably modified by statute. It is provided that, for wrongs done to the property, rights, or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person inferred, or, after his death, by his executors or administrators, against such wrong-doer, in the same manner, and with the like effect, in all respects, as actions founded upon contracts.' But this does not extend to actions for slan- der, libel, assault and battery, or false imprisonment, nor to actions for injuries to the person of the testator or intestate of any executor or administrator.* In this State, all letters testamentary, and letters of admin- istration must be issued in the name of the people of this State, and must be tested in the name of the Surrogate or other officer granting the same, and must be signed by him, and sealed with the seal of his office, or with the seal of the ' 2 Kent's Oomm, 415, 416; Lovelass on » 2 E. S. 44T, § t WillB, 41. * id. S 2. > ii 39. 92 NBW-TOEK JUSTICE. County Court of the county, wlien issued by the first Judge, or District Attorney.' The letters testamentary and of ad- ministration granted by any officer having jurisdiction, are conclusive evidence of the authority of the persons to whom the same may be granted, until the same are reversed on ap- peal or revoked according to law.' 21. CORPOKATIONS. Justices of the Peace have jurisdiction of suits by and against corporations. A corporation is a franchise possessed by one or more individuals, who subsist as a body politic, under a special denomination, and are vested, by the policy of the law, with the capacity of perpetual succession, and of acting in several respects, however numerous the associates may be, as a single individual. The object of the institution is, to enable the members to act by one united will, and to continue their joint powers and property in the same body, xmdisturbed by the change of members, and without the necessity of per- petual conveyances, as the rights of members pass from one individual to another. All the individuals composing a cor- poration and their successors, are considered in law but as one moral person, capable, under an artificial form, of taking and conveying property, contracting debts and duties, and enjoying a variety of civil and political rights. One of the peculiar properties of a corporation, is the power of perpetual succession; for, in judgment of law, it is capable of indefinite duration. The rights and privileges of the corporation do not determine, or vary, upon the death or change of any of the individual members. They continue as long as the corporation endures.' Corporations are divided into aggregate and sole. A cor- poration sole consists of a single person, who is made a body corporate and politic, in order to give him some legal capaci- ties and advantages, and especially that of perpetuity, which, as a natural person, he could not have. But the corporations 1 « E. S. 80, § 65. '1 Kent's Comm. 20T, » Id. § 66. COEPOEATIONS. 93 generally in use are aggregate, or the union of two or more individuals in one body politic, with a capacity of succession and perpetuity.' Public corporations are such as are created by the govern- ment for political purposes, as counties, cities, towns, and villages. But banking, insurance, canal, bridge, turnpike, rail-road, and other companies, whose stock is owned by pri- vate persons, are private corporations, though their objects and operations partake of a public nature." The ordinary incidents to a corporation are: 1. To have pei-petual succession, and of course, the power of electing members in the room of those removed by death or other- wise ; 2. To sue and be sued, and to grant and receive by their corporate name ; 3. To purchase and hold lands and chattels ; 4. To have a common seal ; 5. To make by-laws for the government of the corporation.' Private monied corporations are not only liable to be sued like private individuals for breaches of contract, but they may be sued for neglect and breaches of duty, and for damages resulting from trespasses and torts committed by their agents under their authority, and the authority of such agent need not be under seal." Whenever a corporation is acting within the range of the legitimate purpose of its insti- tution, all parol contracts made by its authorized agents are express and binding promises of the corporation ; and all duties imposed on such agents by law, and all benefits con- ferred at their request, raise implied promises, for the enforce- ment of which an action lies against the corporation. And a corporation may be bound by contracts not under its corpo- rate seal, and by contracts made in the ordinary discharge of the official duty of its agents and officers.' But corporations, Kke natural persons, are, of course, bound only by such acts and contracts of their agents as are done and made within the scope of their authority.' Every county in this State, and every town in this State, as a body corporate, has capacity, 1. To sue and be sued in the > 8 Kent's Oomm. 2T3, 274. Mi 284 Md.2T5. Md. 239,290. 'id. 277. •Id. 292. 94 NEW-TOEK JUSTICE. manner prescribed by law ; 2. To purchase and hold lands within its own limits, and for the use of its inhabitants ; 3. To make such contracts, and to purchase and hold such per- sonal property, as may be necessary to the exercise of its corporate or administrative powers ; 4. To make such orders for the disposition, regulation, or use of its corporate property as may be deemed conducive to the interests of its inhabi- tants.' But no county or town possesses or can exercise any corporate powers, except such as are specially given by law, or are necessary to the exercise of the powers so enumerated or given." All acts and proceedings by and against a coimty in its corporate capacity, must be in the name of the board of su- pervisors of such county ; " and the powers of a county as a body politic, can only be exercised by the board of supervi- sors thereof, or in pursuance of a resolution by them adopted.' All acts or proceedings by or against a town, in its corpo- rate capacity, must be in the name of such town.' No action lies against a town for an injury occasioned by letting a public highway or road remain out of repair." 22. PRINCIPAL AJs^D AGENT. It may be stated generally, that whenever a person has power in his own right to do a thing, he may do it by an agent. Every person of full age, and not otherwise disabled, has a complete capacity to appoint an agent. Infants, mar- ried women, idiots and lunatics, are either wholly or pai'tially incapable of appointing an agent. An infant may authorize another person to do any act which is for his benefit ; but he cannot authorize him to do an act, which is to his prejudice. A married woman may dispose of or incumber her separate estate through an agent or attorney. There are but few persons who are excluded from acting as agents, or from exercising authority delegated to them by others. An infant, or a married woman, may act as agent for another ; and the latter may act as agent or attorney for her 'IE. S. 864, §1; id. 887, §1. Id. 364, § 3. « 8 Barbour, 645. PEMCIPAi AOT) AGENT. 95 husband, and, with his assent, may bind him by contract.' But an idiot, lunatic, or person otherwise non compos mentis, cannot do any act to bind another, for they have no legal discretion or understanding to bestow , upon the affairs of others." ^^/■'--' ^^> ,/ — ' ■ ' " ■ ' ■' ^--'■' ■ ,/i) yV _0iie who has a mere authority to act for another,' Cannot delegate his power to a thii'd person, but must execute it personally ; for the principal selects his agent on account of the confidence which he reposes in him personally." Attor- nies, auctioneers, brokers, factors, consignees, supercargoes, masters of vessels, &c., are agents, but subject to different liabilities. ' '^']^_^ ' '>; '' " ■ ' - ': ' - ^ '^ ' ' ' As a genemlrule, an agent may be appointed by parol, or the appointment may be deduced from acts and implica- tions. A power to convey real estate must be in writing under seal ; and, whenever any act of a principal is required to be under seal, the authority of the agent must be under seal." The appointment of an agent, when not required by law to be under seal, may be either express or implied. An express appointment may be by a formal written instrument, as a power of attorney ; but a more common mode is by some informal written instrument, as by a letter, or written request. But the most usual mode is by an unwritten request, or by implication from the recognition of the principal, or from his acquiescence in the acts of the agent." A clerk employed in a store, has implied authority to make sales, from his ordinary occupation and the acquiescence of his principal. A master is bound by the acts of his servant, where the servant acts within the scope of the usual business confided to him. Agencies are of two kinds, general and special. A general agent is authorized to transact all the business of his em- ployer, and he may do generally what his principal may do, and his acts will be binding on his principal. A special agent is one appointed to do some particular thing, and is limited in his power to the particular thing he is authorized to perform, and cannot bind his principal beyond that. 1 4 Wendell, 465. ^ /. ^i o-ll 3/ J' 1 12 Wendell, 525 ; 20 id. 251 ; 22 id. 834. » 1 Hill, 567. ' Story on Agency, § 54. » id. 601 ; Story on Agency, § 13. 96 NBW-TOKK JUSTICE. A general agent may bind his principal in all things not inconsistent with the nature of his employment. A person is liable for the acts of his general agent, acting within the general scope of his authority ; and a third person cannot be affected by any private instructions from the principal to his agent. T'But^'Ke principal is not bound by the acts of a spe- cial agent who acts beyond his authority ; ' nor can a special agent in any case bind his principal, where he has disobeyed express instructions." Where an agent, within the scope of his agency, employs a third person, the principal is liable to the emplove^ on %*^*poiitract.' 2-'^i/^/^ #? -' ' Anient to sell a'pkrticularTmng, wrtnout any r^ric^n'" as to terms, is a general agent ; " limiting the agency to a particular business, does not make it special." It is not neces- sary, to constitute a general agent, that he should have pre- viously done an act precisely the same as the one in question ; it is enough if he has usually done things of the same general character and effect, with the assent of his principal." The question is not so much what authority the agent had in point of fact, as what powers third persons had a right to suppose he possessed, judging from his acts and the acts of his princi- pal.' "Where there is an apparent authority in the agent, the real question is, what power a third person, who deals with him, has a right to infer he possesses, from his own acts and those of his principal.' Though a general agent disregards particular instructions, his acts as agent are, nevertheless, binding upon his principal.' A power to sell does not, of itself, convey a power to war- rant the title." But an agent authorized to sell an article is presumed to possess the power of warranting its quality and condition, unless the contrary appear ; and this, whether the agency be general or special." A broker authorized to sell goods without any special instructions as to the manner, may sell by sample, and bind his principal by warranty ;" but an 116 Johnson, 44; \S\i.BWSt^'/C,'f//.^, ;^ft .iCawea,^^; 23 Wendell, IS. > 7 Barbonl, 68. ' « 4 Barbour, 869. » 6 Wendell, 6W. . » H Wendell, ST. * 18 id. 518. i» 6 Johnson, 6S ; 7 li 830. '2114 279. .. , , ', "6 Hill, 886. • 1 Hill, sot / '^ '■' • ,/'/.. "6 Cowen, 854 ; 12 Wendell, 606 ; IS id. 425 PEETCIPAL AND AGENT. 97 authority to sell does not authorize a sale on credit, unless it be a known usage of trade that the particular article should be so sold.' The general rule of law is, that where an agent or factor, who is duly authorized to contract for his principal, discloses the fact of his agency, and the name of the person for whom he is acting, he is not personally liable, if he makes the con- tract in such form as to be binding upon his principal, unless it satisfactorily appears that he also intended to bind himself personally.'' But though an agent does not disclose his name in buying for his principal's use, yet if he uses the style of agent in the transaction, and credit is not wholly given to him personally, his principal is liable.' litfA^ls:i i '-■ ■ ' ' '- -' ■ ' Where the acts of the agent will bind his principal, there his representations, declarations, and admissions, respecting the subject matter, will also bind him, if they constitute part of the transaction ;' therefore, if an agent to sell sheep knows that they are diseased, and sells them without communicating the fact, the principal is liable for the deceit." A principal who neither authorizes nor ratifies a wilful trespass of his agent, is not liable therefor ;" but in cases of known agency, the principal alone is liable to third persons for the neglect or omissions of the agent in the business of his agency.' If a factor sell goods in his own name, the purchaser may set off any claim he may have against him, in the suit of the , principal for the price.'/ ^2; , ...,,.. ^^ -2/ //<^/S-;>. The conduct of an agent on whom no fraud is chargeable ought to receive a liberal and favorable construction." An agent is liable for fraud or gross neglect ; but while acting with good faith, he is bound to exercise ordinary diligence 'and attention only. Therefore, if goods are consigned to the master of a vessel, on board of which they are laden, and, on ar- riving at the port of destination, not being able to find a pur- chaser, he leaves the goods there and returns, he is not liable for them." • 26 Wenrlell, 192 ; 2 Hill, 259. « 2 Com stock, 479. - ti ■\Vi.ii,!e'.!, iii. '' 5 Di-iiin, Olil ; 'J, L'o:n3too'.;, l^u. 3 10 id 2T1. » 10 Wendell, 492. * 28 Id. 260. '...',:]. ; 9 2 Gaines, 310. '18 id. 518. ' ' ■» IJohnson's Cases, 174. 98 NBW-TOEK JUSTICE. A factor may sell on credit, for the period usual in tte market, unless prohibited by his instructions, and, if he uses due diligence to ascertain the solvency of the purchaser, he -will not be responsible, though the purchaser should prove insolvent ;' but if he neglects to comply with the directions of his principal, he renders himself liable.'' If orders are giv- en by a principal to his factor, they must be pursued, or the factor becomes liable ; but, if none are given, or if they are not clear and explicit, he is allowed to use his best discretion, and is entitled to protection so long as he acts according to the best of his judgment, and is innocent of fraud or gross neglect.^ Where goods are consigned to a factor for sale, with specific instructions as to price, he has no right to sell below the price named, to cover his subsequent advances, unless, after due notice and request, the consignor neglects or refuses to pay the advances.' An agent who wrongfully refuses to surrender the goods of his principal, or wholly departs from his authority in dispos- ing of them, or who pledges them for his own debt, is liable for their conversion.* But, where an agent has, by his mis- conduct, rendered himself liable to his principal, the acquies- cence of the principal in his acts will exonerate him ;° and, where a principal is informed by his agent of what he has done, the principal must express his dissatisfaction in a rea- sonable time, otherwise, his assent will be presumed.'' So, if an agent compromises a debt due his principal, with the knowledge of the principal, who makes no objection, the agent will be responsible for no more than the sum he receives ; the silence of the principal amounting to assent, and to a ratifica- tion of the act of the agent." ' ' .,." i j'^' In the absence of any express- agreement, the law impliesiJ il& promise by the agent to render an account to his principal ; "'T)ut whether in a reasonable time, or on demand, is not well settled." As a general rule, it is the duty of a collecting agent, to pay over the moneys he collects, as soon as he receives J 6 Johnson, 69 ; 8 id. 819 ; 5 Cowen, 473 ; ' 14 Johnson, 128 ; 21 Wendell, 610. Id. 481. » 1 Johnson's Cases, no. TA/ /' » 1 Johnson's Oases, 487. ' 12 Johnson, 300 ; 2 Cowen, 2SI. ' 8 Caines, 226 ; 6 Cowon, 128. , P .' 8 2 Johnson's Cases, 424. < 1 Bandford, 111 ; 8 Oomstock, 78. » 24 Wendell, 208. PEINCIPAJL Aim AGENT. 99 them. An agent who has collected money for his principal, should give him ^ immediate notice of the fact; and, after a reasonable time from the receipt of such notice', inwtiitib'to'"* make a demand of it from the agent, the statute of limitations will commence running, although no demand be made.' In the case of a factor, an action will not lie for an omission to pay over the proceeds, without a previous demand of them, or instructions to remit, or proof that it is the usual course of business to remit without directions or demand." A^agegij^ho exceeds his.p^werSi in marking, a coptract for^ his principal, is liable upon it ^s his own conffact';' and^wtCTe he acts in his own name, he binds himself, and not his prin- cipal.* Where a person purchases goods as agent for another, and the vendor, with full knowledge of the agency, takes the note of the agent for the purchase money, and relies upon his credit, he cannot afterwards resort to the principal.' An agent who makes a contract in behalf of his principal, whose name he discloses at the time to the person with whom he contracts, is not personally liable.' But a party who would excuse himself from personal responsibility, on the ground that he acted as the agent of another, must show that he communicated to the other party his situation as agent, and that he acted in that capacity, so as to give a remedy against his principal.' A person who purchases for another at auction, but does not, at the time, nor on the day of sale, disclose the fact that he is an agent merely, and the name of his principal, is bound as purchaser.' In a contract of sale or exchange by an agent, as in all oth- er acts done by him, it is essentially requisite, in order to bind the principal, that the authority should be pursued ; otherwise the contract is void. This is especially so, when a purchaser knows that the agent is violating his instructions, and they agree to conceal from the principal the fact of such violation. A transfer of property by an agent who exceeds ' 4 Bandford, B90. 5 %^l/ir^. ^- •? ^Z' » 9 Barboor, 160. ' 8 Barbour, 887. • 15 Johnson, 1. s T Wendell, 81B. ' 18 id. 58. g Johnson'8 Ch. E. 678. a 17 TVendell, 4T. » 6 Denio, 641. » 16 Johnson, 488. » 1 Wendell, 811 ; 9 Id. 487. i" 2 Johnson, 800 ; 2 Hill, 620 ; 8 Barbour, 5T0. • 14 Johnson, 818. " 8 Johnson, 586; 15 id. 409. » 8 Oalnes, 254. " 4 Paige, IT, • 20 .W^deU, 251. » 1 Hill, 6T2. '6HI11,463; T id. 685. PAHTNEESHIP. 103 who have previously dealt with the firm, and who have not had actual notice of the dissolution.' A partner whose name is not used in the firm, is answera- ble for debts contracted after his retirement with persons who knew his previous connection, imless they had notice of his withdrawal.'' After dissolution, all the partners must join in the transfer of a partnership secm'ity, in order to vest the title in the transferree.' A partnership subsists after a voluntary dis- solution, for the purpose of closing the concern, and if one of the partners thereafter dies, the others take the property and books as survivors, subject to account to the personal represen- tatives of the deceased.* Surviving partners may carry on a joint business, in the name of their late firm, or in any other name, and limit it to winding up the business of the latefii'm, or carry on the business generally. "^ Payment of a debt by one partner extinguishes it, and the creditor caniot authorize such partner to keep it alive and enforce it by action against his co-partners ;° nor can one part- ner, who has paid a judgment recovered for a firm debt, call upon the others to contribute, if the partnership accounts are unadjusted.' One partner may sue the others on a promise to pay a bal- ance struck, though, through accident or otherwise, some tri- fling matters were left imadjusted f but he cannot maintain an action against the others, except upon an express promise to pay a struck balance.' Where two persons sign a joint note, that is no evidence of a partnership between them." But general reputation, con- nected with corroborating circumstances, is sufficient, at least ^mmaj^acie, to establish the fact of partnership ;" when uncor- roborated by facts, it is not sufficient evidence of a part- nership." As a general rule, entries made in the firm books during the continuance of the partnership, are evidence as between J 6 Barbonr, 244. ' 1 id. 632. a 8 Comstock, 168. « 16 "Wendell, 601. ' 2 Barbour, 626. » 6 Baiboui, 537. * 6 Cowen, 441. >» 11 Johnson, 161. » 4 Denio, 659. " 14 id. 215. « 1 Wendell, 164. " 20 Wendell, 81; 22 id. 264; 3 H1U,-8S8. 10 4: NEW-YOEK JUSTICE. the partners, on a partnersliip accounting ; and a partner im- peaching them must prove fraud or mistake." Partners are not entitled to charge each other for services rendered in the care and management of the joint property, unless there is a special agreement to that effect." If a partner withdraws, and uses the partnership) funds in his own private trade or speculations, he must account not only for the interest on the money so withdrawn, but for the profits of that trade." Partnership property must first be applied to the payment of partnership debts." If, after dissolution, a partner pays demands against the firm, he cannot maintain an action at law against his co-partners to recover back the whole or any part of the money." j3 Limited Parimership. Limited partnership^ for the transaction of any mercantile, mechanical, or manufacturing business within this State, may be formed by two or more persons. Such partnerships may consist of one or more persons, who are called general part- ners, and are jointly and severally responsible as general part- ners are in other cases ; and of one or more persons, who con- tribute to the common stock, in actual cash payments, a spe- cific sum a3 capital, who are called special partners, and are not liable for the debts of the partnership, beyond the fund so contributed by him or them to the capital. The general part- ners only are authorized to transact business, and sign for the partnership, and to bind it. To form this partnership, a cer- tificate must be signed by all the partners, containing, 1. The name or firm under which the partnership is to be conducted ; 2. The general nature of the business intended to be transact- ed ; 3. The names of all the general and special partners in- tended, distinguishing which are general and which special, and their respective places of residence ; 4. The amount of capital which each special partner shall have contributed to the common stock ; 5. The period at which the partnership is > 7 Paige, 488. i 8 Paige, 1C7. 2 1 Johnson's Oli. E. 158 ; 8 id. 481. '' i Comstook, 4S6. » 1 id. 467. INJUEIES TO PEESON AJSTD PEOPEETT. 105 to commence, and when it will terminate. One or more of the general partners niiist make an affidavit, that the sums specifi- ed in the certificate as having been contributed by each of the special partners to the common stock, have been actually, and in good faith, paid in cash, which affidavit must be filed with the original certificate. The certificate mtist be acknowledged or proved in like manner as a conveyance of lands, and filed in the office of the clerk cif the county in which the principal place of business of the partnership is situated. If it has places of business situated in different counties, a duly certifi- ed transcript of the certificate, and of the proof or acknowledg- ment, must be filed in the clerk's office of every such county. After such registry, the terms of the partnership must be pub- lished for at least six weeks thereafter, in two newspapers to be designated by the clerk of the county in which such regis- try is made, and in the senate district in which the business is carried on. If such publication is not jpade, the partnership is general.' The business of the partnership must be conduct- ed under a firm in which the names of the general partners only are inserted, and the word company must not be used." The business of the partnership is to be transacted by the general partners exclusi"\-ely. The special partner must neither be named as a member of the firm, nor transact any business on account of the partnership. He may examine and advise in relation to the management of the partnership con- cerns, but he must not transact any business on account of the partnership, nor be employed for that purpose as agent, attor- ney, or otherwise ; else he will be deemed a general partner, and be liable as such.' ■■ ./ s ' \-/ /.,. ////.- 24. IlfJURIES TO THE PEKSON, AND TO EEAI; AND PERSONAL PROPERTY. By section fifty-three of the Code, Justices of the Peace have civil jurisdiction in actions for damages for an injury to the person, or to real property, or for taking, detaining, or injuring personal property, if the damages claimed do not ex- 1 1 E. S. T64, T66, §§ 1 to 9. s 6 Hill, 309. 2 id. § 13. 106 NBW-TOEK JUSTICE. ceed one hundred dollars. This general authority, however, is limited by section fifty-four of the Code, which provides that no Justice of the Peace shall have cognizance of a civil action for an assault, battery, false imprisonment, libel, slan- der, malicious prosecution, criminal conversation, or seduction, nor of an action where the title to real property shall come in question. (1.) In^wries to the Person. For any direct unlawful injury to the person, by another, which would entitle the party injured to an action, the Justice has no jurisdiction, for that would be an assault or battery. But if, for instance, the injury is one affecting the health of a person, arising from the sale to him of bad provisions, or from unskilful or negligent treatment by a physician or surgeon, the Justice has jurisdiction. (2.) Iniv/ries to Real Propertnj. To mamtain an action for injury t6 real property, a person must have actual and lawful possession, or be entitled in re- mainder or reversion, or, in case the premises are vacant, have the legal title, which draws to it the possession.' Every per- son who enters upon land without any claim or color of right or title, and keeps possession, is a trespasser ;° but if a person, having a legal title to enter upon land, enters by force, though he is liable to indictment, he is not liable to a private action for damages at the suit of the person whom he turns out of possession." Entering the dwelling-house of another withoiit license is a trespass ;* and so is every unwarrantable entry by a person or his cattle, on the land of another, whether enclosed or not.' Where a person enters upon land under a parol agreement for its purchase, and cuts timber, and afterwards rescinds the agreement, he is a trespasser." In an action for trespass by cattle, it is a matter of defence, » 19 'Wondell, BOT ; 9 Johnson, 61 ; 12 Id. 183; » 12 Johnson, 408. 1 Id. 611. » 19 Id. S85 ; B Denio, 26S. » 2 td. 22. « 9 Johnson, 85. » 18 Id. 28B; 16 id, 19T; 12 Wendell, 488. INJURIES TO REAL PEOPEETY. 107 that the fence through which the cattle entered, and which the plaintiff was bound to beep in repair, was defective.' A person having possession, though it has been tortiously acquired, may maintain an action for trespass against one having no title.'' 'No action can be maintained against a person for building on his own land, whereby his neighbor's lights, not being ancient lights, are obstructed.' Where the owner of two lots, which adjoined each other in the rear, leased one of the lots, without reserving a right to build on the other, and afterwards erected a building so as entirely to exclude the light from the rear windows of the building on the leased lot, it was held that he might lawfully darken or stop such windows by any erection on the other lot, that such an act was not in dero- gation of his own grant, and that he could not be restrained from so doing.' The command of a superior to do an act which amounts to a trespass, is no justification to an inferior ; and if the servant obey such command, bpth he and the master will be liable.*^ The right to land is exclusive ; and every entry thereon without the owner's leave or license, or the authority of law, is a trespass. A person has no right, without permission, to enter upon the land his own property.'^ sion of hJB property peaceably, he must resort to his legal re,m- templation of law, m posses- sion of a highway running through it, subject to the public .easement^ and may maintain an action for an exclusive, appro- ^ priation of tne sou oi the highway.^ i root oi possession ot •A . . ^ to dig up and remove the soil from the highway, opposite the land of another. Eut, to maintain an action for injury to land in a road or street, the plaintiff must prove that it is a > 16 Johnson, 220,^ ' 14 Johnson, 119. 2 T i<'-jy ^ - 8 6 id. 6 ; 14 id. 406. » 18 WendeU, 261 ; 19 id. 809. ^ j' ' 9 Barboni, 652. no Barbour, 53T. M* " 108 NEW-YOEK JUSTICE. highway, in order to give rise to the presumption of owner- ship to the centre ; and mere acts of dedication are not suffi- cient, without ppof of acceptance by the public' ^;^^ 2-i "^^ person m possession of a part of a lot, and not showing title to the whole, has not a constructive possession of the residue, and cannot maintain an action for cutting do'.vn or removing timber from another part ; " but using an unfenced lot, for a number of years, as a wood-lot for the farm on which the plaintiff lives, is a sufficient actual possession, to maintain an action for trespass." All who aid, command, advise or countenance the com- mission of a tort by another, or who approve of it after it is done, if it is done for their benefit, are liable in the same manner as if they had committed the tort with their own hands. When an entry, authority, or license, is given to any one by law, and he abuses it, he is a trespasser ah initio ; but when the entry authority, or license, is given by another, and the party abuses it, he may be puni^ed for the abuse, but will not be a trespasser db initio. \(ln oraer^to make a man a trespasser ab initio, when the law has given the entry, the acts of abuse must be of such a character as to be the subject of a trespass, if there were were no license.' There are three grounds on which a defendant may entitle himself to a verdict, in an action for trespass on Hands, namely: title in hi-mself, title in a third person, or possession out of the plaintiff.' A person is a trespasser who, instead of passing along on the side-walk of a street, stops on it in front of a man's house, and remains there, using towards him abusive and in-ulting language." Consequential damages frequently spring from trespasses on land, or from negligence in the use of one's own land. If a corporation, authorized by charter, necessai-ily blasts rocks, and they fall upon adjoining lands, the corporation is answera- ble for the damage, although negligence or want of skill in i«^WeTidoll, m.~~ ^ ■'' ^ - -' 4 11 Barbonr, 890. y 'VS^^^MW^T » 1 Id. 466. " ^ Johnson, 218. / • 14 Id. 289. '11 Bnrbour, 890. INJimrES TO EEAL PEOPEETT. 109 the blasting be neither alleged nor proved ; ' and evidence to show that the work was done in the most careful manner, is inadmissible, where only actual damages are claimed." But if A. sets fire to his own fallow ground, as he may lawfully do, and the fire spreads to the woodland of his neighbor, no action lies against A., unless there was some negligence or misconduct of himself or his servants.' ^ ^ y^'u^-/ Jj/l- Where the defendant, through gross negligence, left maple syrup in his unenclosed wood, and the plaintifl[''s cow, run- ning at large there without right, drank it, and was thereby killed, it was held that the defendant was not liable." The reason is, the cow had no right to be there. No one can recover for an injury arising even from gross negligence in the lawful use of another's property, unless he is free from negligence himself. Where a person, in the exercise of ordinary care and skill, in making an. excavation for the improvement of his own lot, digs so near the foundation of a building on the adjacent lot, as to cause it to crack and settle, he is not liable for the injury, unless the building is erected upon an ancient foundation, and entitled, by grant or prescription, to exemption from such injury, or has been granted, in its present situation, by the owner of the lot on which the excavation is made, or by those from whom he derives title." But for an injury resulting from neglig^t and careless excavation, a party is liable." I have a natural right to the use of my land in the situa- tion in which it was placed by nature, surrounded and pro- tected by the soil of the adjacent lots, and can maintain an action against a man who digs a pit on his own land so near to mine that my land falls into the pit. But my neighbor has a right to dig a pit on his own land, if necessaiy to its convenient or beneficial use, when it can be done without injury to my land in its natural state; and I cannot deprive him of this right by erecting a building on my lot, the weight of which will cause my land to fall into the pit.' 1-8 Barbour, 43 ; 2 ComsWck, 169. » IT Johnson, 92 ; 4 Paigo, 169. 2 id. 163. J / 10 '^ Denio, 466 ; 2 Barbou^ 166. » 8 Jobn3on,.4ai. .23//'^^^^/ '4 Paige, 169. 5/ /^ ■'■-rO' * 1 Cowen, 78. 110 ITEW-TOEK JUSTICE. Althougli one build on his own land in an exposed and hazardous situation, adjoining a blacksmith's shop, or the track of a rail-road, or the usual course of a steam boat, he may nevertheless recover, in case of injury resulting from the negligence of the smith, or the agents and servants of the rail-road company, or the owners of the steam-boat." (3.) Injv/ries to Personal Prop&riy. Personal property may be injured or destroyed, or a person may be deprived of its possession, so as to entitle him to an action, but he must, at the time of the injury, have either actual or constructive possession of the property." It is not necessary that one should be the actual owner, but a right to reduce the property to actual possession, is sufficient to entitle a party to maintain an action;" and bare possession of a chattel is sufficient to maintain an action for a trespass against a wrong-doer." But a bailee of goods for keeping, cannot maintain an action for taking them on an execution against the owner, though they be exempt from execution.' "Where an injury is done to a plaintiff's person or property, by an attorney, surgeon, physician, tailor, smith, barber, or other person of a trade or profession, acting ignorantly, care- lessly, or maliciously, an action will lie." And it may be stated as a general rule, that where one does an illegal or mischievous act, which is likely to prove injurious to others, and when he does a legal act in such a careless and improper manner that injury to third persons may probably ensue, he is answerable for all the consequences which may directly and naturally result from his conduct.' A wilful or grossly negligent injury is never tolerated; but where it arises from mere inadvertence, and there is an equal or greater neglect on the part of the injured, no action can be maintained.' Where the plaintiff's negligence contributed to the accident, he cannot recover; and, in no case can an action be sustained, if the wrongful act of the plaintiff co- 1 1 Denio, 91. e 1 Cowen, 114. //!> /JA*^ ^ flTT ' 8 Johnson, 482 ; 11 Id. 285. « 1 Oowon's TroatisB, 8T6. » 1 WendoU, 466. * ' 4 Denlo, 464 * 18 Johnson, 141, 561. 8 21 Wendell, 616. INJURIES TO PEESONAL PEOPEETY. Ill operated with the misconduct of the defendant to produce the damages sustained ; and this is so, whether the plaintiff's act was negligent or wilful.' K a person is entitled to take property into his actual pos- session whenever he pleases, that is sufficient to enable him to maintain an action for trespass, for its taking, against a third person.'' A landlord may have an action against his tenant, for trees wrongfully cut by the latter during the term, and removed by him from the premises.' If A.'s bees swarm, and take pos- session of a hollow tree on B.'s land, A. keeping them in sight, and tracing them there, and 0. fell the tree for the honey, to the destruction of the bees, A. can maintain tres- pass against him.' If A.'s lamb, being in the highway, gets into a flock which B. is driving by, and Br. knowing it, drives the whole to a yard, and leaves them to be taken away by a drover, A. can recover the value of the lamb from B., the injury Jein^^Amtary/^;^JT , ,; jWhere /jap^raon, with a deadly weapon, pursued a boy, with whom he had quarreled, into a store, and the boy, in his terror, ran against a wine cask, and spilled the wine, the per^ son who pursued the boy was held liable for the damage, upon the principle that one who does an illegal or mischievous act, is responsible for the consequences which result." If a man, without just cause, aims a blow at his enemy, which, missing him, falls upon his friend, it is a trespass upon the friend, and may be murder, if a deadly weapon is used, and death ensues; or if, in attempting to steal or destroy the property of another, he unfortunately wound the owner, or a third person, he must answer for the consequences, although he did not intend that particular mischief. And, although no mischief of any kind be intended, yet if a man do an act which is dangerous to the person or property of others, and which evinces a reckless disregard of consequences, he will be answerable civilly, and in many cases criminally, for the injuries which may follow ; as, if he discharge a gun, or let 1 21 Wend. 188 ; 6 Hill, 592 ; 11 Barboar, 112. ■'IS Wendell, 550. 2 1 Wendell, 466. ' 6 flffl, 283. » 4 Denio, 422. / ^' • 4 Denio, 464. 112 NEW-TOEK JUSTICE. loose a ferocious or mad animal in a multitude of people, or throw a stone from the house-top into a street where many are passing, or keep a large quantity of gun-powder near the dwelling of another. In these and such like cases, he must answer for any injury which may result, from his misconduct, to the persons or property of others. And, if the act was so imminently dangerous to others as to evince a dejjraved mind, regardless of human life, and death ensues, it will be mur- der.' Any person is justified in killing a dog which has been bitten by a mad animal, or a ferocious and dangerous dog which is permitted to run at large by its owner, or escapes through negligent keeping." A person is justified in killing a dog which is chasing and killing sheep, or destroying a fowl, on his land.'^ A confession that one killed a dog, which. assaulted him in the highway, must be taken together, and amounts to a justification.* It is' a well-settled principle, that in all cases where an action is brought for mischief done to the person or personal property of another, by domestic animals, such as horses, ^en, cows, sheep, swine, and the like, the owner must be shown to have had notice of their viciousness, before he can be charged ; but this rule does not apply where the mischief is done by such an animal while committing a trespass upon the close of another.' One who owns or keeps an animal of any kind, is liable for an injury the animal may do, only on the ground of some actual or presumed negligence on his part. It is essential to the proof of negligence, and sufficient evidence thereof, that the owner be shown to have had notice of the propensity of the animal to do mischief Proof that the animal is of a savage and ferocious ^ nature, is equivalent to proof of expi-ess notice, v a '-al < ■•';' • ■ >-"•' -^ ~l The owner of fifteen hives of bees kept them in his yard adjoining the public highway, and the plaintifi"s horses, while travelling along the highway, and passing the place where the bees were kept, were attacked and stimg so severely 1 4 Donio, 484, par Beonson, J. ' ''10 id. 865. ^IB Johnson, 812; 4 Cowen, 861. » 4 Denio, 127 ; 1 Comstock, 616. J '■ ■ ' " 9 Johnson, 233. '/ f mJITErES TO PEESONAL PEOPEETY. 113 that one of thein died and the other was greatly injured. It appeared that the bees had been kept in the same place for eight or nine years, without doing any other injury. It was held that the owner of the bees was not liable, at all events not for any accidental injury they might do.' If a dog be in fact ferocious, at large, and a terror to the neighborhood, the public would be justified in despatching him at once ; and it would seem not to be necessary to prove that the owner had knowledge of the vicious disposition of the dog.' If a man knowingly keep on his premises a fero- cious dog, in such a way that he will worry an ordinary tres- passer in the day time, he is liable for an injury inflicted by the dog upon such trespasser.' Evidence that the plaintiff was bitten by the defendant's dog, that the dog had previous- ly bitten others, and that the defendant had notice of it, be- ing uncontradicted, requires a verdict for the plaintiff.* Though a dog be vicious, no one but his master has a right to kill him, except when he chases and kills one's domestic animals on his land ; or, under the statute, when he attacks . sheep ; or, when he is ferocious and attacks persons, in which case he is a common nuisance, and any one may destroy him.' If a dog is in the habit of howling about one's house by night, so as to be a nuisance to his family, he may, after reasonable notice to the owner, be killed." Where dogs owned by differ- ent persons worry and kill sheep, a joint action cannot be^ maintained against the separate owners.' '^'-' ' - - -^ - -^v- ^ It is an act of negligence to suffer cattle to be at large in a highway at rail-road crossings. Therefore, where the owner of a cow suffered her to go at large in the highway, and upon a rail-road track, at the usual time for the passenger train of. cars to pass, and 'the cow was killed by the train of cars, it was held that the owner could not recover the value of the cow in an action against the rail-road company. Where cows are trespassers upon a rail-road, their owners cannot maintain an action against the rail-road company for running over and killing them by their passenger cars, even if the death of the > 8 Barbotil, 680. « 4 Cowen, 351. ' /' '^»*^ S%C. 'Zl- ^''fit^ ' » 21 WendeU, ^- ,, a. ,, i yy, / "23 WendeU, 354 »lT!d.496. iy- •'- ^ lirlM^iUb ' IT Id. 562. /' • -. *4Denio, 500. 9 114 NEW-TOEK JtrSTIOE. COWS was occasioned by the gross negligence of tlie defen- dants.' Every unwarrantable entry by a person or his cattle, on the land of another, is a trespass. This is so at common law, though the entry be by cattle coming from the highway, and the land be unfenced ; and it is no excuse that the owner ex- ercised care and prudence to keep them in his own inclosure. The purpose of fences, in the view of the common law, is to keep the owner's cattle in, and not the cattle of others out. But, if cattle driven along the highway, escape into an ad- joining field, against the owner's will, the rule does not apply, and the trespass is excused. Where a proprietor of land is bound by prescription to fence against cattle lawfully in the highway, he cannot maintain trespass for an entry of cattle arising out of a defect in his fences. If domestic animals stray upon land where they have no right to be, and are injured by the negligence of the owner of the land, an action will not li3 by the owner of the animals against the owner of .the land." ^-^^i^^ut-^.^-^,....,^, ^^lf^.JM^ '^f'^ '^^'^■ 25. PENALTIES AND FORFEITURES. Justices of the Peace have jurisdiction of actions for penal- ties, to an amount not exceeding one hundred dollars, whether brought by individuals or by the people.' Any alderman of the city of Albany may try any action brought to recover a penalty to the amount of twenty-five dollars or under, incur- red under any of the by-laws of the said city, but has no oth- er civil jurisdiction as a Justice.* By the provisions of the Revised Statutes, when a pecuniary wpenalty or forfeiture is specially granted by law to any per- son injured or aggrieved by any act or omission of another, the same may be sued for and recovered in an action of debt, or in an action of assumpsit ; and if it be a forfeiture of any prop- erty, it may be sued for and recovered in an action of trover, or other appropriate action.'_ The forms of all actions being abol- ished by the Code, (§ 69,) the claims recoverable in the actions 1 11 Bartour, 112. < 2 K. 8. 22T, 1 10. » 6 Dcnio, 255. ' ii «0, § 1. > Code, §§ 58, 64. PENALTIES AiTD FOEEEHTTEES. 115 tlms specified mnst be prosecuted in a civil action, and a com- plaint containing the substance of what was formerly required in a declaration in any one of those several actions, will be a sufficient compliance with the statute. In an action on a stat- ute making it penal to cut and carry away trees from the lands of the State, and creating a penalty of $25 for each tree cut, it may be alleged in the complaint that the defendant is indebted in a sum equal to four penalties, and the plaintiff may recover any amount of penalties which it can be proved the defendant has incurred, though the same be less than four." Every such action, and every action brought by any public officer for the recovery of any penalty or forfeiture, must be prosecuted and conducted in the same manner as other per- sonal actions in all respects, except as otherwise specially provided; and is subject to all the provisions of law concern- ing amendments of the process, pleadings, and records therein, and concerning the abatement of such suits by death or otherwise, and all other provisions concerning personal ac- tions, except where otherwise specially provided." "Whenever any penalty or forfeiture is recovered, which is not specially granted by law to the party aggrieved ; or to any officer ; or to, or for the use of any county, town, or other body politic ; or for the use of the poor of any place ; or to any person who will prosecute ; or which is not otherwise specially appropriated ; the same must be paid into the trea- sury of the State, for the use of the people thereof." Every suit or proceeding in a civil case, instituted in the name of the people of this State, by any public officer duly authorized for that purpose, is subject to all the provisions of law respecting similar suits or proceedings, when instituted by or in the name of any citizen, except where provision is oth- erwise expressly made by statute ; and in all such suits and proceedings the people of this State are liable to be non- suited, and to have judgments of nprir-jyTos or of discontinu- ance entered against them, in the same cases, in like manner, J 18 Wendell, 896. • id. 481, § 8. ' 5 2E. B. 480,481, §§2, 8. 116 NEW-TOKK JUSTICE. and with the same effect, as in suits brought by citizens, except that no execution can issue thereon.' An action for the recovery of a penalty or forfeiture imposed by statute, must be tried in the county where the cause of action or some part thereof arose ; except that, if the 'ofl'ence for which the penalty or forfeiture is imposed, was committed on a river, lake, or other stream of water situated in two or more counties, the action to recover the penalty or forfeiture may be brought in any county bordering on such river, lake or stream, and opposite to the place where the offence was committed ; ' and a recovery in such action by a public officer will be a bar to any other suit by any other public officer, for the same offence.' Where any penalty or forfeiture is given by law to any person who will sue for the same, such suit must be brought in the name of the person commencing the same, who may appear by attorney ; and it must be conducted and prosecu- ted in all respects in the same manner as, and will be subject to the provisions of law concerning, personal actions." No such suit will be deemed to be commenced, until process is actually delivered to an officer to be executed ; which pro- cess must not be re-delivered to the plaintiff in any case, but must be returned to the Court from which the same issued ; and no such action can be compromised or compounded, without leave of the Court in which it shall be pending.' Upon every process issued for the purpose of compelling the appearance of the defendant to any action for the recovery of any penalty or forfeiture, must be endorsed a general reference to the statute by which such action is given, in the fol- lowing form : " According to the provisions of the statute regulating the rate of interest on money,"' or, " According to the provisions of the statute concerning sheriffs," as the case may require, or in some other general terms referring to such statute." A reference thus: " According to the act ' of the internal police of the State,' " is not a compliance with the statute. At least the number of the title, if not the particu- >2 E.8. 662, §18. Mi §6. > Code, §124 Md. §6. »2E.8.481,§4. •ia.§T. PENALTIES AND FOEFEITUEES. 117 lar section under wMch the suit is brought, should he speci- fied.' In an action to recover any penalty or forfeiture given by any statute, the complaint must state that the action accrued according to the provisions of such statute, naming the sub- ject matter thereof, in the following form: "According to the provisions of the statute concerning sheriffs," naming the section, title, and chapter of such statute, as the case may require, or in some other similar terms referring to such statute.' K an action be brought to recover any goods or other things forfeited by the provisions of any statute, the complaint must contain a like reference to the statute, ac- cording to the provisions of which the forfeiture is claimed.' And the complaint in a penal action must also set forth the particular acts or omissions by which the penalty was incurred.* In any suit for a penalty or forfeiture brought by any person other than the party aggrieved, or other than any public officer, if a former recovery or acquittal, or other bar to such action, be pleaded, the plaintiff may reply, that such recovery, acquittal or bar was had by covin and fraud ; and, if such replication be confessed or established, the plaintiff will recover in such action, notwithstanding such plea." An action of debt to recover a penalty imposed by the by-law of a municipal corporation, may, it would seem, be brought in a Justice's Court, although the statute authorizing the by-law contains no provision conferring jurisdiction upon Justices of the Peace." Where any act is prohibited by law, under a penalty not exceeding any given sum speciiied in such law, an action may be brought for such specified sum ; and the jury or Justice before whom the trial is had, must award such sum so specified, to the plaintiff, or such part thereof as shall be deemed proportioned to the offence.' A penalty cannot be raised by implication, but must be expressly created and imposed." 1 17 Wendell 85 ; 4 Denio, 269. » 2 E . S. 482, § 14. 2 2 E. S. 482, § § 10, 11. ' 2 Hill, 296. s id. § 12. '2 E. 8. 483, § 15. < 4 Denio, 469. e 2 Johnson, 8T9. 118 NEW-TOEK JUSTICE. Only one penalty is recoverable for one oiFence or entire transaction, and not a separate penalty for each particular act into whicli the offence may be divisible ; ' and, though several join in committing it, they are jointly liable for one penalty.' Where double or treble value is given by statute, the proper practice is, for the jury to find the single value, and the Court doubles or trebles it.° Where a statute inflicts a penalty, and gives one moiety to the people, and the other moiety to the person prosecuting for the same to effect, a payment of the judgment to the plaintiff is authorized, and discharges the defendant. The plaintiff may thereupon discharge the judgment, and is a trustee for the people's moiety." Whenever an action is brought to recover any penalty im- posed by law for taking any rails, boards, planks, or staves, from the banks or vicinity of a canal, in which a Justice is authorized to direct the detention of any canal boat," he can- not endorse such direction on any warrant, unless a bond be executed and delivered to him, in the penalty of at least one hundred dollars, with one or more sureties, to be approved by the Justice, conditioned that such action shall be prosecuted to judgment with all convenient speed, and that, if judg- ment be rendered in favor of the defendant, the obligees will pay the costs and charges which shall be adjudged against the plaintiff, and all damages which may ensue from the de- tention of such boat and the cargo thereof, and the crew navigating the same." ISTo inhabitant of any town, city, or coxmty is disqualified as a juror or witness in any cause brought to recover any penalty or forfeiture, on the ground that such penalty or forfeiture is to be applied for the benefit of such town, city, or county, or for the benefit of the poor thereof; nor is any officer, on such ground, disqualified from serving any process for the summoning of a jury in such cause.' ' 12 JohDBon, 128. * 10 Johnson, 118. s B Oowon, 6T8 ; 4 Denio, 8T4 ; 8 Comstook, » 1 E. S. 24-, § 172. 182. "aE. S. 229, §§28, 24. » 5 Cowen, 678. ' id. 561, § 2. FIXTtTEES. 119 26. FIXTURES. Under this head, it will be impossible to give more than a few general principles in regard to the law of fixtures. The decisions are very numerous, and the distinctions between what are fixtures belonging to the freehold, and what are things removable as personal chattels, frequently require very subtle discrimination. The law divides property into two great classes, real and personal ; and the distinction is founded on reason, and the nature of things. The one is immovable and of unlimited duration; the other is perishable and movable. Every thing that is annexed to land is considered as a part thereof; a house, or a tree, for instance. If the property in the land on which the house is erected, or the tree is growing, be con- veyed to another, the house and the tree will pass. And, as the house and the tree are a part of the land, from the cir- cifmstance of their being fixed thereto, so the fruit on the tree, and the articles fixed in the house, as windows, doors, hearths, and chimney-pieces, are also part of the land. It may be stated, as a general proposition of law, that every thing fixed to land, either immediately, as a house, or medi- ately, as a window in a house, belongs to the proprietor of the land. And this rule prevails where one man builds a house on the land of another, or fixes the chattels belonging to another in his house. . fw^^i^ i2y«x!c^ <='} ^.'^ ^-^ T^ufaman may have occasion to fix to the land of another a chattel belonging to himself, and yet not be willing to part with his property in the chattel. Thus, where a house is let by the owner to another for a term, it may be necessary for the tenant, in order to the comfortable or profitable occupa- tion of such house, to fix therein articles of his own. In such case the general rule is modified ; and a party who, under such circumstances, makes annexations to the land of another, is allowed to remove the things so annexed, at any time during his tenancy, and in some cases after the expiration thereof. Things thus annexed to land, and removable, are termed fix- tures ; and, although, during the period of their annexation they are considered as a portion of the land, the party fixing them is allowed to reduce them again to a chattel state. 120 NEW-TOEK JUSTICE. Fixtures of the kind just mentioned are divided into two classes : 1st. Tiiose articles which a tenant fixes for the pur- poses of his trade ; 2d'. ThoSe which he fixes for his domestic convenience, or the ornament of his house. It is only articles which fall under the one or the other of these divisions that the law considers a party can have any reason for fixing to the land of another, or can find any utility in removing. In order to ascertain whether, as between landlord and ten- ant, a particular thing is or is not a fixture, enquiry must be made, 1st. If it be fixed to the land ; 2d. Kit have been so fixed by the tenant; 3d. If it be useful to the tenant in his trade, or in the occupation of his house, or ornamental to it ; and 4th. If it be capable of removal without doing substan- tial injury to the house. As these are questions of fact, each case must depend much on its own particular circumstances. A fixture is a thing fixed to land. If not so fixed it is a chattel, and cannot, under any circumstances, be considerfed as a part of the freehold. The merely laying, and resting up- on the earth, without letting and embedding into it, goods, or even buildings of any description, will not make them fix- tures. The article must be fixed in or to the ground, or to some substance already become a portion of the freehold, in order to deprive it of its personal nature ; and unless this com- plete annexation to the freehold take place, the article is not what is called a fixture, but remains a personal chattel, and may be removed by the party who brought it upon the prem- ises. If goods or buildings are merely placed and rest upon, without being let into, a brick or other foundation, and can be taken away without injury to such foimdation, they may le- gally be removed, although the foundation itself be in a solid manner rendered part of the freehold, and cannot be severed therefrom. Thus a tenant may erect barns, granaries, sheds, and mills, upon blocks, rollers, pillars, or plates resting on brick-work, so as to reserve to himself the right of removal. It may be stated generally, that whatever a tenant erects or fixes for the purposes of his trade, to the premises leased, he may take away at any time before the end of his term. In regard to domestic fixtures, or those articles which a tenant fixes in his house, in order to render his occupation more com- FISTTIEES. 121 fortable or more convenient, tlie rule is, that furniture and pictures, even wlien slightly fixed to the walls or floors of a house, are removable by the tenant before the expiration of his term. So, too, furnaces, grates, stoves, cupboards, shelves, bells, carpets nailed to the floor, blinds, curtains, and in short any article which has been flxed to the house by the tenant for his domestic use, and which is capable of being removed without injury to the house, may be removed by him. A tenant may lose his right to remove fixtures by leaving them on the premises, and he may waive it by agreement.' Where a thing fixed to the freehold is severed for a partic- ular purpose, it remains, in contemplation of law, a part of the freehold ; thus, a mill-stone taken from the mill for the pur- pose of being picked, does not become a personal chattel. But otherwise, articles affixed to the freehold become person- al property by severance. ° It has been decided in the Courts of this State that the fol- lowing articles are personal property : a bark mill, affixed to the soil, being an accessory to the tanning business ;° a cider mill and press, erected by a tenant from year to year, at his own expense, though affixed to the soil ;^ machinery used in, but not attached to, a mill ;' engines and machinery, firmly affixed to a building by a tenant for years, for the cai-rying on of business of a personal nature;" coppers, &c., for distilling;' a stove, not affixed, but communicating with the chimney by its pipe, and secured by temporary fastenings.' Eut whether personal property is annexed to the freehold for the purpose of trade or manufactures, is a question of fact for a jury.' Machinery put into a building, after its erection by the owner, for the purposes of trade, founded on timbers bedded in the earth, and so attached to the building as to be capable of removal without injury to it, is not a fixture which passes by conveyance of the land.'" The water-wheels, bolting ap- paratus, and machinery of a grist mill, are part of the free- ' Gibbons' Law of Fixtures ; Grady's Law of • 1 Denio, 91. Fixtures. ' 5 Oowen, 328. » 8 "Wendell, 68T. , « 24 Wendell, 191. 3 6 Johnson, 5. ■ .' » 1 Barbour, 372L * 20 id. 29. " 6 Denio, 52T. s 20 Wendell, 636. 122 NEW-YOEK JUSTICE. hold, and go to the heir ; and so of growing grass, fi"uit and trees.' Manure, there being no stipulation to the contrary, and rails in fences, or temporarily detached, belong to the landlord, and not to the tenant ;'' but rails built into a fence by a ten- ant, under an agreement with his landlord that he may re- move them at the end of his lease, are personal property as between the landlord and the tenant.' "Wheat growing on the ground is a chattel, and may be sold by parol." So, too, it may be sold on execution.'' But a foreclosure sale under the statute vests in the purchaser a title to the growing crops, as against the mortgagor or his vendee." If one occupies land under another, and, by the terms of the agreement, the grass belongs to the former, he may mortgage it as personal property.' 27. MECHANICS' LIENS. Justices of the Peace, Justices' Courts in cities, the Marine Court in the city of New-York, and the District Courts in that city, have jurisdiction, in certain cases, of actions arising un- der the various statutes which give to mechanics and oth- ers who erect buildings and furnish materials therefor in cer- tain cities and villages in the State, liens upon such buildings for the value of such labor and materials. As the proceed- ings in such cases are strictly statutory, very little more can be said than to quote the various statutes on the subject, which are as follows : Any person who shall hereafter by virtue of any contract with the owner thereof, or his agent, or any person who in pursuance of an agreement with any such contractor, shall, in conformity with the terms of the contract with such owner or agent, perform any labor or furnish materials in building, al- tering or repairing any house or other building, or appurte- nances to any house or other building, in the several cities in this State, (except the city of New- York,) and in the villages 1 10 Paigo, 158 ; 1 Barbour, 642 ; 2 id. 613 ; < 2 Johnson, 421 ; 9 Cowen, 39. Kaln T. Fisher, Court of Appeals, December, » 2 Johnson, 418 ; 9 id. 108. 1852. » 1 Barbour's Ch. K. 618; 2 Denio, 174; 6 a 16 ■Wendell, 1C9 , 2 Hill, 142. Barbour, 870. » 1 Gomstock, 664, ' 1 Denio, 580; 1 Comstook, 90. MECHAinCs' LIENS. 123 of Syracuse, Williamsburgh, Geneva, Oswego, Auburn and Canandaigua, shall have a lien for the value of such labor and materials, upon such house or building and appurtenances, and upon the lot of land on which the same stand, to the ex- tent of the right, title and interest at that time existing of such owner, in the manner and to the extent hereinafter provided ; but the aggregate of all the liens authorized by this act to be created, for the labor performed and materials furnished in building, altering or repairing any house, other building or appurtenances, shall not exceed the price stipulated in the contract with such owner or his said agent to be paid therefor ; and such owner shall not be obliged to pay for or on account of such house, building or appurtenances, any greater sum or amount than the price so stipulated and agreed to be paid therefor, in and by such contract.' The person performing such labor or furnishing such mate- rials, shall cause to be drawn up specifications of the work by him contracted to be performed, or materials to be furnished, and stating the price or prices agreed to be paid therefor, and shall file them, or if there be a contract, a true copy thereof, if the same be in writing, in the ofSee of the clerk of the county in which the city or village maybe situated, and serve a notice thereof personally on such owner, or his said agent, within twenty days after the making such contract, or after commencing such labor, or the furnishing of said materials. The said clerk shall provide and keep a book, which shall be called " The Mechanics' and Laborers' Lien Docket," in which he shall enter alphabetically, the names of the owners, and opposite to them the names of the contractors or laborers, or other persons claiming a lien, and the lot or street on which such work is to be done, or materials furnished, and the time of filing such specification or copy of such contract ; and the said clerk shall in each case receive the sum of eighteen cents.'' The filing of the specifications and statements, and serv- ing notice thereof, required by the second section of chapter 306 of the laws of 1844, may in respect to any labor perform- 1 Laws of 1844, chap. 805, § 1. 2 id. § 2. 124 NEW-TOEK JUSTICE. ed or to be performed, or materials furnished or to be furnish- ed in building, altering, or repairing any house or other build- ing in the city of Buffalo, be made at any time prior to thirty days after such labor shall be performed or materials furnished, or after such house or building, or the alterations or repairs of which, shall be completed, and the filing of such specifications and statements, and service of such notice, shall create a lien in favor of the person performing such labor or furnishing such materials, under the provisions of said act, for the amount of such labor performed and materials furnished, whether performed or furnished before or after such filing and service. But nothing herein contained shall be construed to create a lien in favor of a sub-contractor or laborer, beyond the amount due from the overseer or agent to the contractors, provided the payments to the contractor shall have been made by such owner or agent in good faith, and before the serving of such notice.' The lien so created by this act shall take effect from such filing and such service of the said notice, and shall continue in full force for the space of one year thereafter ; such lien may be discharged on such docket at any time by said clerk, on the production to and filing with him of a certificate sign- ed by the contractor, laborer, or other person claiming such lien, that the claim for which such lien was created is satisfied, and discharged ; which certificate shall be acknowledged or proved in the same manner as deeds are required to be ac- knowledged or proved to entitle the same to be recorded." Any owner, and any contractor or laborer, or any person furnishing materials, in pursuance of any contract made by such contractor with such owner, or his said agent therefor, may, after such labor has been perfoi-med, or materials fur- nished, enforce or bring to a close such lien, by serving or causing a notice to be served personally on such owner or his agent, contractor or laborer, or person furnishing materials, requiring him to appear in the County Court of the county, or in a Justice's Court of the city or village, in the county in which such building is situated, either in person or by attor- ' Laws of 1881, chap. BIT. » Laws of 1644, chap. 806, § 3, MECaAinCs' LIENS. 125 ney, at a time certain on some day to be specified in sucli notice, not less than twenty days from the service thereof, and submit to an accounting and settlement in such Court of the amount due or claimed to be due under such contract for the labor thus performed, or the materials thus furnished.' At the time of, or within ten days after the service of such notice, a bill of particulars of the amount claimed to be due, shall be served personally on such owner, and accompanying the same shall be a notice to produce a bill of particulars of any off-set which may be claimed to the same, within ten days thereafter, which shall be served in like manner." In case such contractor, laborer, or person furnishing ma- terials, shall not appear and produce his claim, as specified in sections fom- and five, he shall forever lose the benefit and be precluded of his said lien ; and in case such owner shall not appear in pursuance of the requirements of the said sec- tions, at the time and place specified in such notice, then his default may be entered in the book of common rules of the said county court, or by the said Justice's Court, and there- upon a writ of inquiry and inquisition may issue to the sheriff of said county, in which such city or village may be situ- ated, to be executed, or the amount of such claim shall be assessed by the said Justice's Court, as the case may be ; and judgment shall be entered upon the same, and execution shall issue for the enforcement of the said claim so adjudicated and established, in the same manner as in cases upon judgments in such courts in actions of assumpsit.' On the appearance of both parties in pursuance of the above requirements, issue shall be joined upon the claims made, and notices of set-off served, and the same may be noticed for trial and put upon the calendar of said court by either party, and shall be governed, tried, and the judgment therein enforced in all respects in the same manner as upon issues joined and judgments rendered in actions of assumj)sit in the said court.* Costs shall be allowed upon the same principles and by the iLawsof 1844,ohap. 805, H »id. §6. 2 Id. § 5. * id. § f ; Laws of 1845, chop. 205 126 KEW-YOEK JUSTICE. samo rules in such proceedings as they are now allowed hj statute in an action of assumpsit, and shall form a part of the judgment recovered in the same.' Any person performing such labor, or furnishing such ma- terials in pursuance of any agreement made by him with the original contractor with such owner or his said agent, who shall have done the acts prescribed by the second section of this act, to create a lien therefor, shall have a lien for only such labor as shall be performed, and for only such materials as shall be furnished subsequently thereto.^ Any person performing such labor, or furnishing such materials, as mentioned in the preceding section, in pursu- ance of any agreement made by him with the original con- tractor with such owner or his said agent, within thirty days after such labor has been performed, or such materials have been furnished, and claiming to have a lien therefor by virtue of this act, shall produce and deliver to such owner, or his said agent, a statement in writing, signed by himself and the said contractor, specifying how much is due to such person for such labor done, or materials furnished, or in default of so doing shall take the necessary proceedings against such contractor, to procure an accounting and settlement of the amount due or owing for such labor or materials, which pro- ceedings shall be conducted in all respects as prescribed by, and be subject to all the provisions contained in sections four, five, six, seven and eight of this act ; and in case such person shall fail to produce and deliver such statement, or take the necessary proceedings within the said period of thirty days, to compel such accounting and settlement between himself and such contractor, or shall fail to prosecute the proceedings so to be taken with effect, and without delay to a final judg- ment, he shall forever lose the benefit and be precluded of his said lien. The amount of any judgment which may be recovered by such person against such contractor, or the amount which, by their written statement, to be signed by them as aforesaid, shall be specified to be due to such person from such contractor, shall be paid by such owner, or his said ' Laws of 1844, chap. 806, § 8. ' Id. § 9. 127 agent, to sucli person ; and when so paid sliall be deemed to be a payment of such amount by the said owner, on the con- tract made with snch owner, or his said agent. And if such owner, or his said agent, shall refuse or neglect to pay such sum, after being served with such statement, or a transcript of the docket of such judgment, for ten days after being re- quested so to do, the clerk of the county, on having filed with him a duplicate copy of said statement, with the affidavit of such person that it is a true copy thereof, and of the delivery thereof to such owner, as required by this section, or on hav- ing filed with him a transcript of the docket of such judg- ment, and an affidavit of a demand of the said owner, or his said agent, ten days prior thereto, of the amount thereof, and of his refusal or neglect to pay, may issue an execution in favor of such person against such owner, in form as upon a judgment recovered in assumpsit, on the day of the attach- ing of such lien, reciting that such execution is issued pursu- ant to the tenth section of this act, which execution shall be subject in all respects to the jurisdiction and control of the County Court of said county to make such order in respect to the same as shall be just between the parties, according to their rights as defined and regulated by this act. Eor such execution the clerk shall be entitled to a fee of one dollar, which shall be collected under such execution, in addition to the amount therein directed to be collected thereby, and the fee prescribed by law for making such collection." The docket of liens and of judgments filed and docketed with the county clerk of any county, under chapter three hundred and five of the Laws of 1844, shall be subject to the control and jurisdiction of the County Court of such county, in the same manner as judgments recovered in said Court." Any person who shall furnish materials or perform labor in the erecting, altering or repairing any house or other buil- ding or appurtenances, may certify to the owner or his agent, at any time previous to or during the progress of the work, that such person will discharge the owner or his agent from any liability as to liens, and such certificate, executed by > Laws of 1844, chap. SOS, § 10. ' Laws of 1845, chap. 235. 128 NEW-TOEK JUSTICE. himself in presence of a subscribing witness, shall be conclu- sive upon such person in barring him from the benefit of a lien by virtue of this act.' The provisions of chapter 305 of the laws of 1844, are hereby extended to the town of Kingston in the county of Ulster.' Any person who shall hereafter, by virtue of any contract with the OAvner thereof, or his agent, or any person who, in pursuance of an agreement with any such contractor, shall, in conformity with the terms of the said contract, perform any labor, or furnish materials in building, altering or repair- ing any house or other building, in the county of Richmond, shall have a lien for the value of such labor and materials, upon such house or building and appurtenances, and upon the lot of land on which the same stand, to the extent of the right, title and interest at that time existing, of such owner, in the manner and to the extent hereinafter provided ; but such owner shall not be obliged to pay for, or on account of such house, other building or appurtenances, in consideration of all the liens authorized by this act to be created, any greater sum or amount than the price stipulated and agreed to be paid therefor in and by such contract.^ Any person furnishing such materials or performing such labor in pursuance of a written contract with such owner or his agent, shall produce such contract, or the best evidence thereof in his possession, the validity of which shall be established in evidence before the Court in which he may bring his suit to recover the value of his lien, and shall recover no more than the price stipulated to be paid to him in such contract.* Any person performing such labor or furnishing such ma- terials without a wi-itten contract -nath such owner or his agent, shall produce evidence as mentioned in the preceding section, to establish the value of such labor or materials, and that the same were used by the said owner or his agent or Laws of 1844, chap. 806, §11. s Laws of 1846, chap. 184, § 1. 'Lawsof 1815, chap. 206, §1. Laws of 18B1, chap. 169, § 3. > Id. § 6. ' id. § 4 MECHASriCS' LIENS. 133 clerk of said county, or upon the docket of said Justice's Court ; and thereupon a writ of inquiry and inquisition may issue to the sheriff of said county, to be executed, or the amount of such claim shall be assessed by the said Justice's Court, as the case may be ; and judgment shall be entered upon the same, and execution shall issue for the enforcement of said claim so adjudicated and established, in the same man- ner as in cases upon judgments in such Courts in civil actions.' On the appearance of both parties in pursuance of the above requirements, issue shall be joined upon the claims made and notices of set-off served ; and the same may be noticed for trial and put iipon the calendar of any Circuit Court in said county by either party, and shall be governed, tried, and the judgment therein enforced, in all respects in the same manner as upon issues joined and judgments rendered in actions ari- sing on money demands upon contract in said county." Costs shall be allowed upon the same principles and by the same rules in such proceedings as they are now allowed by statute in an action on a money demand on contract, and shall form a part of the judgment in the same.' Such owner or his agent may at any time give public notice in the same manner as notice is required to be given for the sale of real estate by virtue of an execution, to all persons having claims under any of the provisions of this act against any such building or appurtenances at the time of the date of such notice, to present the same, with vouchers in support thereof, to any Justice of the Peace in the town wherein such building is situated, on or before a certain hour and day to be specified in said notice, and to be at least six weeks from the first publication thereof, and in case of the failure of such per- sons to present their claims as required by said notice, each and every such person so failing shall forever lose the benefit and be precluded of his said lien.* Whenever such owner or his agent shall be proceeded against by a contractor pursuant to the provisions of the sec- ond section of this act, it shall be lawful for him to give the notice prescribed in the ninth section hereof, and present as a > Laws of 1851, chap. 169, § 6. ' id. § 8. "id. §7. •'id.§9. 134 NEW-TOEK JUSTICE. set-ofF all claims and liens thereupon presented and establish- ed ; and the magistrate or court before whom such proceed- ings shall be commenced, shall, upon the request of such owner or his agent, grant a stay of proceedings sufficient to enable him to give such notice and call in such claims, which claims shall thereupon be audited by such magistrate or court.' In case the said owner or his agent shall neglect to give the notice required by sections four and five, or the notice provi- ded for by section nine, no claim or lien against such building or ajDpurtenances shall be barred, until the expiration of one year from the time of performing such labor or furnishing such materials." Any person who shall hereafter, by virtue of any contract with the owner thereof, or his agent, or any person who in pursuance of an agreement with any such contractor, shall, in conformity with the terms of such contract, perform any labor or furnish materials in building, altering, or repairing any house or other building, or appurtenances to any house or other building in the city and county of liew-York, shall, upon filing the notice prescribed in the sixth section hereof, have a lien for the value of such labor and materials upon such house or building and appurtenances, and upon the lot of land upon which the same stand, to the extent of the right, title, and interest at that time existing, of such owner, in the manner and to the extent hereinafter provided; but such owner shall not be obliged to pay for, or on account of such house, other building or appurtenances, in consideration of all the liens authorized by this act to be created, any greater sum or amount than the price stipulated and agreed to be paid therefor in and by such contract.' Any person furnishing such materials or performing such labor, in pursuance of a written contract with such owner or his agent, shall produce such contract, or the best evidence thereof in his possession, the validity of which shall be estab- lished in evidence before the Court in which he may bring his suit to recover the value of his lien, and shall recover no 1 Laws of 1851, cliap. 109, § 10. ' Laws of 1851, chap. 513, § 1. ' Id. § 11. mechanics' liens. 135 more than the price stipulated to be paid to him in siich contract.' Any person performing such labor, or furnishing such ma- terials, without a written contract with such owner or his agent, shall produce evidence as mentioned in the preceding ' section, to establish the value of such labor or materials, and that the same were used by the said owner or his agent, or the original contractor in the erection, alteration or repairing of such buildinfl'.^ Any contractor or laborer, or any person furnishing mate- rials in pursuance of any contract made by such contractor with such owner, or his said agent therefor, may, after such labor has been performed, or materials purchased, enforce or bring to a close such lien, by serving or causing a notice to be served personally on such owner or his agent, contractor or laborer, or person furnishing materials, requiring him to ap- pear in the Court of Common Pleas, or, provided the amount claimed do not exceed one hundred dollars, in a Justice's Court of the judicial district in which such building is situa- ted, or in the Marine Court of said city and county of ISTew- Tork, either in person or by attorney, at a time certain upon some day to be specified in such notice, not less than twenty days from the service thereof, and submit to an accounting and settlement in such Court, of the amount due or claimed to be due for the labor thus performed or the materials thus fur- nished.' At the time, or within fifteen days after the service of such notice, a bill of particulars of the amount claimed to be due shall be served personally on such owner, or his legal repre- sentatives, and also a bill of particulars of any off-set which may be claimed to the same, shall be served in like manner upon the laborer, contractor, or person furnishing materials, as the case may be.^ "Within six months after the performing of such labor, or the furnishing of such materials, the contractor, sub-contrac- tor, laborer, or person furnishing materials, shall serve a notice in writing, upon the county clerk, specifying the amount of 1 Laws of 1851, chap. 513, § 2. s id. § 4 M(L§8. Md-IS. 136 NEW-YOEK JUSTICE. the claim, and the person against whom the claim is made, the name of the owner of the building, and the situation of the building, by the street and number, if the number be kncss-n. The county clerk shall enter the particulars of such notice in a book to be kept in his office, to be called, " The Lien Docket," which shall be suitably ruled in colums headed " claimants," "against whom claimed," "owners," "building," " amount claimed," and " date of notice, hour, minute," "what proceedings have been had." The names of owners and per- sons against wliom the claim is made, to be inserted in alpha- betical order. A fee of ten cents shall be paid to the county clerk on filing such lien, of which fees an account shall be ren- dered to the board of supervisors as provided by law with regard to other fees.' In case said owner shall not appear at the time and place specified in the notice given in pursuance of the requirements of sections four and five, then on filing with the county clerk, or with the clerk of the Marine Court, or with the Justice, an affidavit of the service of such notice, and of the default of the owner to appear, a writ of inquiry may be issued to the sheriff of said city and county, to assess the amount of such claim, or the amount of such claim may be assessed by the Court of Common Pleas, Justice's Court, or the Marine Court, as the case may be, and upon the return of the writ of inquiry, or the assessment by the Court, judgment shall be entered upon the same, and execution shall issue for the enforcement of said claim, so adjudicated and established, in the same manner as in cases upon other judgments in such Court.' On the appearance of both parties in pursuance of the above requirement, issue shall be joined upon the claims made, and notice of set-off served, and the same may be noticed for trial, and put upon the calendar of said court by either party, and shall be governed, tried, and the judgment therein enforced, in all respects in the same manner as upon issues joined and judgments rendered in all other civil actions for the recovery of monies in said Courts." A transcript of every judgment rendered, headed "lien I Laws of 1851, cbap. 513, § 6. Md. §8. "id.§T. mechanics' liens. 137 docket" shall be furnislied hj the clerk of the Court or the justice, to the sxiccessful party, who may file the same with the county clerk, whose duty it shall he to enter the name of the Court and the amount of the judgment, or where judg- ment is against the claimant, the word " discharged" under the last head in his docket.' Costs shall be allowed upon the same principles and by the same rules, in such proceeding as they are now allowed by statute in civil actions for the recovery of money, and shall form a part of the judgment recovered in the same.' Tlie lien may be discharged as follows: 1. By filing a certificate of the claimant, or his successors in interest, ac- knowledged or proved in the same manner as the satisfaction of a mortgage, stating that the lien is discharged ; or, 3. By the deposit with the clerk of a sum of money equal to the amount claimed, which money shall thereupon be held sub- ject to the lien; or, 3. By an entry of the clerk made in the book of liens, after one year has elapsed since the filing of the claim, stating that no notice has been given to him of legal steps to enforce the lien ; or, i. By an aflSdavit of ser- vice of a notice from the owner to the claimant, requiring him to commence an action for the enforcement of his lien, on or before a certain hour or day specified in said notice, and the lapse of thirty days thereafter, without any affidavit from the claimant being filed of the service of the notice required in section four ; 5. By satisfaction of the lien, upon an action for the enforcement thereof.' Every lien created under the first section of this act, shall continue until the expiration of one year from the creation thereof, and until judgment rendered in any proceedings for the enforcement thereof.* Any person who shall hereafter by virtue of any contract with the owner thereof or his agent, or any person who in pursuance of an agreement with any such contractor, shall, in conformity with the terms of said contract, perform any labor, or furnish materials in building, altering or repairing I Laws of 1861,chap, 518, § 9. ' id. § 11. 'id. §10. -"id. Sia. 138 NEW-TOEK JUSTICE. any house or other building, or appurtenances to any house or other building, in the counties of Westchester, Dutchess, Putnam, Kensselaer, Eockland and Chemung, and the town of Newburgh, in the county of Orange, shall have a lien for the value of such labor and materials upon such house or building and appurtenances, and upon the lot of land on which the same shall stand, to the extent of the right, title and interest at the time existing of such owner, in the man- ner and to the extent hereinafter provided, but such owner shall not be obliged to pay for or on account of such house, building or appurtenances, in consideration of all the liens authorized by this act to be created, any greater sum or amount than the price stipulated and agreed to be paid therefor in and by such contract, except in the case herein- after provided.' Any person who, in pursuance of an agreement with said contractor, shall in conformity with the terms of said contract perform any labor or furnish any materials as aforesaid, may serve a specification in writing of the amount of labor per- formed or materials furnished by him, together with the price or prices agreed to be paid therefor, personally on said owner or his agent within twenty days after the performance of such labor or the furnishing of such materials, and no lien for labor performed or materials furnished, in pursuance of an agreement with said contractor, shall attach to said building or lot unless said specification be served as aforesaid.'' If by collusion or otherwise, the owner of any building, erected by contract as aforesaid, shall pay to his contractor any money in advance of the sum due on said contract, and if the amount still due the contractor after such payment has been made, shall be insufficient to satisfy the demands made in conformity with the provisions of this act, for labor per- formed or materials furnished, the owner shall be liable to the amount that would have been due at the time of the service of the specification mentioned in the preceding section of this act, in the same manner as if no such payment had been made.' 1 Lawa of 18B2., chap. 384, § 1. s id S 3. a id. § 2. mechanics' liens. 139 Any person furnishing sncli materials or performing such labor in pursuance of a contract with said owner or his agent shall, if said contract be in writing, produce it or the best evi- nence thereof in his possession, the validity of whicli shall be established before the Court in which he may bring his suit, to recover the value of his lien, and if the contract be not in writing he shall produce evidence to establish' the value of such labor or materials, and that the same has been perform- ed or furnished according to the provisions of the contract made with such owner or his agent, in the erection, altera- tion or repairing of such building.' Any contractor or laborer, or any person furnishing mate- rials in pursuance of any contract made by such contractor with such owner or his said agent therefor, may after such labor has been performed or materials furnished, enforce or bring to a close such lien by serving a notice personally on such owner or his agent, requiring him to appear in the Su- preme Court for the district in the county when the amount of the lien claimed exceeds one hundred dollars, or in a Jus- tice's Court of the town, when the amount of the lien claimed is for one hundred dollars or under, in which such building may be situated, either in person or by attorney, at a time cer- tain on some day to be specified in such notice, not less than twenty days from the service thereof, and submit to an ac- counting and settlement in such Court, of the amount due or claimed to be due for the labor thus performed or the materi- als thus furnished." At the time or within fifteen days after service of such no- tice, a bill of particulars of the amount claimed to be due shall be served personally on such owner, and also a bill of particulars of any off-set which may be claimed to the same, shall be served in like manner upon the laborer, contractor or person furnishing materials, as the case may be.^ Within six months after the performance of said labor, or the furnishing of such materials, the contractor, sub-contrac- tor, laborer or person furnishing materials, shall serve a notice in writing upon the town clerk of the town in which said I Laws of 1852, chap. 884, § 4. » id. § 6. ' id. § 5. 140 NBW-TORK JUSTICE. house or building is situated, specifying the amount of the claim and the person against whom the claim is made, the name of the owner of the building, and if in a village or city, the situation of the building by street and number, if the num- ber be known. The town clerk shall enter the particulars of such notice in a book to be procured by him and paid for as a town charge, to be kept in his office, to be called " The Lien Docket," which shall be suitably ruled in columns headed " claimants," " against whom claimed," " owners," " building," " amount claimed," and " date of notice, hour, minute," "what proceedings have been had." The names of persons and owners against whom the claims are made, shall be inserted in alphabetical order. A fee of ten cents shall be paid to the town clerk on filing such lien.' In case such contractor, laborer or person furnishing mate- rials, shall not appear and produce his claim as specified in sections fi.ve and six, he shall forever lose the benefit and be precluded of his said lien, and in case such owner shall not appear, in pursuance of the requirements of the said sections, at the time and place specified in such notice, then his default shall be entered in a book to be kept for that pui-pose by the clerk of said county, or upon the docket of said Justice's Court, and thereupon a writ of inquiry and inquisition may issue to the sheriff of said county to be executed, or the amount of such claim shall be assessed by the said Justice's Court, as the case may be ; and judgment shall be entered upon the same and execution shall issue for the enforcement of said claim so adjudicated and established, in the same manner as in cases upon judgments in such Courts in civil actions.' On the appearance of both parties in pursuance of the above requirements, issue shall be joined upon the claims made and notices of set-off served ; and the same may be noticed for trial and put upon the calendar of any Circuit Covirt in said county by either party, and shall be governed, tried, and the judgment therein enforced in all respects in the same manner as upon issues joined and judgments rendered in actions ari- sing on money demands upon contract in said county.' 1 La W8 of 1852, chap. 884, § T. Mi § 9. « Id. § 8. mechanics' liens. 141 Costs sliall be allowed upon the same principles and by the same rules in such proceedings as they are now allowed by statute in an action on a money demand on contract, and shall form a part of the judgment in the same.' Such owner, or his agent, may at any time give public no- tice in the same manner as notice is required to be given for the sale of real estate by virtue of an execution, to all persons having claims under any of the provisions of this act against any such building or appurtenances at the time of the date of such notice, to present the same with vouchers in support thereof, to any Justice of the Peace in the town where such building is situated, on or before a certain hour and day, to be specified in said notice, and to be at least six weeks from the first publication thereof, and in case of failure of such per- sons to present their claims as required by said notice, each and every such person so failing shall forever lose the benefit and be precluded of said lien.'' Whenever such owner, or his agent, shall be proceeded against by a contractor, pursuant to the provisions of the fifth section of this act, it shall be lawful for him to give the notice prescribed in the eleventh section hereof, and present as a set- off all claims and liens thereupon presented and established, and the Magistrate or Court before whom such proceedings shall be commenced, shall, upon request of such owner, or his agent, grant a stay of proceedings sufficient to enable him to give such notice, and call in such claims, which claims shall thereupon be audited by such Magistrate or Court.' In case the said owner or his agent, shall neglect to give the notice required in sections five and six, no claim or lien against such building or appurtenances shall be barred until the expiration of one year from the time of performing such labor or furnishing such materials.' 1 Laws of 1853, chap. 884, § 10. » id. § 12. » ii § 11. * ii § 18. 142 NEW-TOEK JUSTICE. CHAPTER lY. OF THE TIME OF COMMENaNG aVIL ACTIONS, The provisions of the Eevised Statutes in the Chapter enti- tled " Of actions and the times of commencing them," are re- pealed by the Code, and the provisions of the Code are sub- stituted in their stead.' Jj^^y /Jct/tJ i 96 -- ■•'''•- ^/ i/i- Civil actions can only be commenced within the periods prescribed by the Code, after the cause of action has accrued, except where, in special cases, a different limitation is pre- scribed by statute ; but the objection that the action was not commenced within the time limited, can only be taken by answer." The following provisions of the Code, (Part 2, Title 2, Chap- ter 2,) in regard to the time of commencing actions relating to real property, are inserted here, as they may possibly, in some cases, be applicable to actions in Justices' Courts. § T9. No cause of action or defence to an action founded upon the title to real property, or to rents or services out of the same, shall be effectual, unless it appear that the person prosecuting the action, or making the defence, or under whose title the action is prosecuted or the defence is made, or the ancestor, predecessor or grantor of such person, was seised or possessed of the premises in question, within twenty years before the committing of the act in respect to which such ac- tjjOn is prosecuted or defence made. § 86. Whenever the relation of landlord and tenant shall have existed between any persons, the possession of the ten- ant shall be deemed the possession of the landlord, until the expiration of twenty years from the termination of the ten- ancy; or where there has been no vn-itten lease, until the ex- piration of twenty years from the time of the last payment of rent; notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his ■Oodo, §T3. Md.§74 - i / -,. . ' .J STATITTE OF LTMITATIONS. 143 landlord. Eut such presumptions sliall not be made after the periods herein limited. § 8T. The right of a person to the possession of any real property, shall not be impaired or affected by a descent being cast in conseqiience of the death of a person in possession of such property. § 88. If a person entitled to commence any action for the recovery of real property, or to make an entry or defence founded on the title to real property, or to rents or services out of the same, be at the time such title shall first descend or accrue either, 1. "Within the age of twenty-one years, or, 2. Insane, or, 3. 'Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life, or, ■i. A married woman ; The time, during which such disability shall continue, shall not be deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such entry or defence ; but such action may be commenced, or entry or defence made, after the period of twenty years, and within ten years after the disability shall cease, or after the death of the person entitled who shall die under such disabil- ity; but such action shall not be commenced, or entry or de- fence made after that period. The following are the provisions of the Code, (Part 2, Title 2, Chapter 3,) in regard to the time of commencing actions oth- er than for the recovery of real property : § 89. The periods prescribed in section seventy-four for the commencement of actions other than for the recovery of real property, shall be as follows : § 90. Within twenty years : 1. An action upon a judgment or decree of any Court of the United States, or of any State or Territory within the United States ; 2. An action upon a sealed instrument. § 91. "Within six years : 1. An action upon a contract, obligation or liability, ex- 144 NEW-TOEK JUSTICE. press or implied ; excepting those mentioned in section 90. 2. An action upon a liability created by statute, other than a penalty or forfeiture. 3. An action for trespass upon real property. 4. An action for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of person- al property. 5. An action for criminal conversation, or for any other in- jury to the person or rights of another, not arising on contract, and not hereinafter enumerated. 6. An action for relief, on the ground of fraud, in cases which heretofore were solely cognizable by the Court of Chan- cery ; the cause of action in such case not to be deemed to have accrued, until the discovery by the aggrieved party, of the facts constituting the fraud. § 92. Within three years : 1. An action against a sheriff, coroner or constable, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty ; including the non-payment of money collected upon an execution. But this section shaU not apply to an action for an escape. -\ (-lyjJ v»>^ J^SQ^T'^M^'f"'^ 2. An action upon a statute, for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the people of this State, except where the' statute imposing it prescribes a different limitation. /' '-^^^-^-' '/' § 93. Within two years : 1. An action for libel, slander, assault, battery, or false im- prisonment. 2. An action upon a statute, for a forfeiture or penalty to the people of this State. § 94. Within one year : 1. An action against a shei-iff or other officer, for the escape of a prisoner arrested or imprisoned on civil process. § 95. In an action brought to recover a balance due upon a mutual, open and current account, Avhere there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side. STATUTE OF LmiTATIONS. 14:5 § 96. An action upon a statute for a penalty or forfeit- ure, given in whole or in part to any person who will prose- cute for the same, must be commenced within one year after the commission of the offence ; and if the action be not com- menced within the year by a private party, it may be com- menced within two years thereafter, in behalf of the people of this State, by the attorney-general or the district attorney of the county where the offence was committed. § 97. An action for relief, not hereinbefore provided for, must be commenced within ten years after the cause of action shall have accrued. § 98. The limitations prescribed in this chapter shall apply to actions brought in the name of the people of this State or for their benefit, in the same manner as to actions by private parties. ]Sro action can be brought upon a judgment rendered in any Court of this State, except ' a Court of a Justice of the Peace, between the same parties, without leave of the Court for good cause shown, on notice to the adverse party ; and no action on a judgment rendered by a Justice of the Peace, can be brought in the same county within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the county, or that the pro- cess was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or destroyed.' The following are the general provisions of the Code, (Part 2, Title 2, Chapter 4,) as to the time of commencing actions : § 99. An action is commenced as to each defendant when the summons is served on him, or on a co-defendant, who is a joint contractor, or otherwise united in interest, with him. An attempt to commence an action, is deemed equivalent to the commencement thereof, within the meaning of this title, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county, in which the defendants, or one of them, usually or last resi- ' Code, Eart 2, Title 1,§T1. '' ' 146 NEW-YOEK JtrSTIGE. ded ; or, if a corporation be defendant, to the sherifif, or other officer of the county in which ench corporation was establish- ed by law, or where its general business was transacted, or where it ke[-t an office for the transaction of business. But such an attempt must be followed by the first publication of the summons, or the service thereof within sixty days. § 100. If, when the cause of action shall accrue against any person, he shall be out of the State, such action may be com- menced within the terms herein respectively limited after the return of such person into this State ; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action. § 101. If a person entitled to bring an action mentioned in the last chapter, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of action accrued, either, 1. "Within the age of twenty-one years ; or, 2. Insane ; or, 3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal Court, for a termless than his natural life; or, 4r. A married woman ; The time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought, cannot be extended -more^han five years by any such disability, except infancy, nor can it be so extended in any case longer than one year after the disability ceases. § 102. If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within one year from his death. ,.,- ; ; ;< ^ • , . . /. : • ■ >'' '- It is further provided by statute, that' the time which shall have elapsed between the death of any person, and the grant- ing of letters testamentary, or of administration on his estate, ,not exceeding six months, and the period of six months after * STATUTE OF LIMTTATIONS. 147 the granting of sucli letters, shall not be deemed any part of the time limited by any law for the commencement of actions by executors or administrators.' § 103. When a person shall be an alien subject or citizen of a country at war with the United States, the time of the con- . tinuance of the war shall not be part of the period limited for the commencement of the action. § 104. If an action shall be commenced within the time pre- scribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his heirs or representatives may commence a new action within one year after the reversal. § 105. When the commencement of an action shall be stayed by injunction, or statutory prohibition, the time of the contin- uance of the injunction or prohibition shall not be part of the time limited for the commencement of the action. § 106. JSTo person shall avail himself of a disability unless it existed when his right of action accrued. § 107. When two or more disabilities shall co-exist, at the time the right of action accrues, the limitation shall not attach until they all be removed. § 108. This title shall not affect actions to enforce the pay- ment of bills, notes or other evidences of debt issued by mon- ied corporations, or issued or put in circulation as money. § 109. This title shall not affect actions against directors or stockholders of a monied corporation, or banking associations, to recover a penalty or forfeiture imposed, or to enforce a lia- bility (sreated, by law; but such actions must be brought within six years after the discovery, by the aggrieved party, •of the facts upon* which the penaltjj or forfeituj-e attached, or the liability was created. * ' \ ' § 110. Ko acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be contained in some writi«||^igned by the party to be charged thereby ; but this section shall not alter the effect of any pay- ment of principal or interest. Section 100 of the Code, before cited, is the same as the > 2 E. 8. 448, § 9. 148 NBW-TOEK JUSTICE. former provision of the Eevised Statutes on the same subject," iand which has given rise to various and coniiicting decisions. Thus it has been decided, that virhere the defendant is a non- resident of this State when the cause of action accrues, and afterwards comes into this State in an open, public manner, so that the plaintiff might, with ordinary diligence, have com- menced his suit, the period of limitation commences from such return, though the defendant immediately afterwards go back to his foreign residence, and remain there till the commence- ment of the suit ; and that the provision declaring that the time of the defendant's absence from the State shall not be taken as any part of the period of limitation, is confined to cases of a departure from the State, after the cause of action has accrued." And, under the last clause of the section, Mr. Justice ITelson, in the Circuit Court of the United States for the Southern District of New- York, has decided that that clause provides for but one case of absence, and that, on the return of the defendant into the State after his first departure, so as to be subject to the process of the Court, and in a way to give operation to the statute, it then continues to operate, notwithstanding a subsequent departure ; and that the plain- tiff must have knowledge of the return, or the circumstances must be such as will warrant a jury in bringing knowledge home to him." And in Cole v. Jessup/ Judge Gridley said : " The pleading is based upon the assumption that successive absences may be accumulated together and deducted from the period that has elapsed since the cause of action accrued. This I apprehend cannot be done. The statute is satisfied by deducting the first absence after the cause of action has /T^ question, liowever, was coiisidered by Mr. Justice Mc Kissock in Burroughs v. J^loomer," and he decided, that where a cause of action accrues against a resident of this State who subsequently removes to a foreign State, the statute of limi- tations does not apply to any po^fj^ of the time he resides out of the State, notwithstanding he may frequently return to > 2 E. B. 297, § 2T. « 2 Barbour, 809. _, a 4 Denio, 57T. » 6 Denio, 532. Lu^ ^/ /^* 8 Barbour, in. • id., 566. ' . .^^ PAETIES TO CIVIL ACTIONS. 151 CHAPTER Y. OF THE PARTIES TO QVIL ACTIONS. We have already seen' that Justices cannot entertain juris- diction in actions brought against executors or administrators. If the action is one cognizable by the Justice, it may be brought by and against all persons who sue or are sued in their own right, and by and against all town and county offi- cers in their official character, and by and against corpora- tions, and by executors and administrators." Formerly, actions against a corporation could not be brought before a Justice, but Actions may be brought by tne supervisors ot a county ; by the loan officers and commissioners of loans of a county ; by county superintendents of the poor; by supervisors of towns; by overseers of the poor of the several towns ; by town super- intendents' of common schools, and commissioners of high- ways of the several towns ; by trustees of school districts ; and by trustees of gospel and school lots ; upon any contract law- fully made with them or their predecessors, in their official character ; to enforce any liability, or any duty enjoined by law, to such officers or the body which they represent ; to re- cover any penalties or forfeitures given to such officers or the bodies whom they represent ; and to recover damages for any injuries done to the property or rights of such officers, or of the bodies represented by them.* In an action either by or against any of the above named officers, the individual name of the incumbent must be used, with the addition of his name of office. Accordingly, where the action was in the name of "the supervisor of the town of G.," without mentioning the name of the incumbent, it was held that it could not be main- tained.' > Ante, p. 28. chap. 480, § 1. » 2 E. 8. 226, § 5 ; Laws of 184T, chap. 470, < 2 E. S. 4T8, % 92. §45. » 4 HUl, 136. • laws of 1843, chap. 188, § 1 ; Laws of 184T, 152 NEW-YOKK JUSTICE. Such actions may be brought by such officers in the name of their respective offices, notwithstanding the contract or ob- ligation on which the same is founded, may have been made with or to any predecessors of such officers, in their individu- al names or otherwise, and notwithstanding any right of ac- tion may have accrued, previous to the time when the officers commencing such suit entered upon the execution of the du- ties of their office.' But in cases where, by special permission of law, actions are directed to be brought by or against any public bodies, in the name of any such body, the same must be brought or de- fended in such name, by the persons representing such body, then in office." Actions against counties in the cases in which they are al- lowed by law,' must be brought against the board of super- visors thereof, and actions against towns* must be brought against such towns by their names.' Actions may also be brought against the supervisors and other public officers before named, upon their own contracts and those of their predecessors, made in pursuance of their official authority and duties.' And it is further provided by statute, that when any contract shall have been entered into, or any liability shall have been incurred, by or in behalf of any county or town, by any officer thereof within the scope of his authority, the same remedies may be had against any suc- cessor of such officer, in his official character, as might have been had against such officer, if he had continued in office.' As a general rule, all public officers, though not expressly authorized to sue by statute, have a capacity to sue, commen- surate with their public trusts and duties.' Every corporation, created under the laws of this State, has power, as such, to sue and be sued, complain and defend in any Court.' But in a suit brought by any such corporation, it is not necessary to prove, on the trial of the action, the exist- ence of such corporation, unless the defendant sets up in his answer that the plaintiffs are not a corporation." > 2 K. 8. 478, § 98. » 7 Wendell, ISl ; 10 id. 426 ; 13 Id. SH. » Id. § 94. '2 K. S. 474, § 98. ' Ante, pp. 98, 94. B 18 Johnson, 407 ; 1 Cowen, 260 ; 4 Hill, 136. « id. » 1 K. S. 590, § 1. » 2 E. 8. 473, §95. >» id. § a W' , FOREIGN COEPOEATIONS. 153' A foreign corporation, created by the laws of any other State or country, may, upon giving security for the payment of the costs of suit, prosecute in the Courts of this State, in the same manner as corporations created vmder the laws of this State.' But where, by the laws of this State, any act is for- bidden to be done by any corporation, or by any association of individuals, without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded iipon such act, or upon any liability or obligation, express or implied, arising out of, or made or entered into, in consideration of such act.^ In regard to the security for costs thus required to be given by a foreign corporation, it is supposed that no further secu- rity is required in a Justice's Court than that which the for- eign corporation must give by reason of its being a non-resi- dent plaintiff. A non-resident plaintiff, to obtain a warrant from a Justice, must tender to the Justice %QCPox\i-j for the pay- ment of any sum which may he adjudged against him in the suit.^ And the same security must be given by a non-resi- dent plaintiff to obtain a short summons under the non-impris- onment act, where a warrant cannot issue.* So also, to obtain an attachment, whether under the Revised Statutes,^ or un- der the non-imprisonment act," the plaintiff must give a bond to pay the defendant all damages and costs which he may sus- tain by the issuing of the attachment, if the plaintiff fails to recover judgment. Then, as the defendant, on obtaining judg- ment against the plaintiff before a Justice, is entitled by law to costs as a part of his judgment,' it would seem that the pro- visions for security for costs just referred to, embrace all the security that is necessary in the case of a foreign corporation as well as in the case of every other non-resident plaintiff. There are some kinds of joint-stock associations which are permitted by our laws to sue and be sued by the names of their chief otBcers, instead of by the names of all their share- holders. Such officers, however, not being thereby made in- > 2 E. 8. 457, § 1. »2E. 8. 280, §29. » id. § 2. • Laws of 1831, chap. 300, ' id. 228, § IT. '2 E. S. 246, §§ 119, 120. * Laws of 1831, chap. 300, § 82. 154 NEW-TOEK JUSTICE. _^ dividually liable, but the associations being tbe real parties to the actions, and being bound thereby. All suits, actions, and proceedings brought or prosecuted by or in behalf of an association for the business of banking formed under the act of 1838, chapter 260, and the acts amend- ing the same, may be brought or prosecuted in the name of the president thereof; and no such suit, action, or proceed- ing will abate, by reason of the death, resignation, or remo- val from oi£ce of such president, but may be continued and prosecuted according to such rules as the Courts may direct, in the name of his successor in office, who will exercise the powers, enjoy the rights, and discharge the duties of his pre- decessor.' All persons having demands against any such as- sociation, may maintain actions against the president thereof; which suits or actions will not abate by reason of the death, resignation, or removal from office of such president, but may be continued and prosecuted to judgment against his succes- sor ; and all j udgments and decrees obtained or rendered against such president for any debt or liability of such association can be enforced only against the joint property of the association, and which property is liable to be taken and sold by execu- tion under any such judgment or decree." Any joint-stock company or association, consisting of seven or more shareholders, or associates, may sue and be sued, in the name of the president or treasm'er, for the time being, of such joint-stock company or association; and all suits and proceedings so prosecuted, by or against any such joint-stock company or association, and the service of all process or pa- pers in such suits and proceedings on the president or treasu- rer for the time being, of such joint-stock company or asso- ciation, will have the same force and effect as regards the joint rights, property and effects of such joint-stock company or association, as if such suits and proceedings were prosecu- ted in the names of all the shareholders or associates, in the manner now provided by law.' No suit so commenced will abate by reason of the death, removal, or resignation of such president or treasurer of such joint-stock company or associa- > Laws of 1888, chap. 260, § 21. " Laws of 1849, clap. 2S8, § 1. ' Id. S 22. JOINT-STOCK COMPAITIES. 155 tion, or the death or legal incapacity of any shareliolder or associate during the pendency of such suit ; but the same may be continued by or against the successor of the officer in whose name such suit has been commenced/ The president or treas- urer of any such joint-stock company or association will not be liable in his own person or property, by reason of any suit prosecuted as above provided, by or against him, as the nom- inal plaintiff or defendant therein ; but such president or treasurer will not be exempted from any liability to which he may be otherwise legally subject as a stockholder or share^ holder in such joint-stock company or association.'' But these provisions do not deprive any plaintiff of the right, after judg- ment is obtained against any such joint-stock company or as- sociation, as above provided, from suing all or any of the share- holders or associates therein individually, according to law, or of the right to proceed in the first instance against the per- sons constituting any such joint-stock company or associa- tion, according to law ; but if it appears to any Court in which any suit is prosecuted otherwise than is above provided, (in § 1 of the act,) that the same is so prosecuted for the purpose of vexatiously and oppressively enhancing costs, such Court must not allow any more costs to be recovered in such suit than would be recoverable in case suchsuit was prosecuted as above provided, (in § 1 of the act.)" The foregoing provisions do not, however, confer on such joint-stock companies or associations, any of the rights or privileges of corporations, except as above specially provided.* By a subsequent statute, the foregoing provisions of the act of 1849, are extended to any company or association, compos- ed of not less than seven persons, who are owners of, or have an interest in any property, right of action, or demand, j ointly or in common, or who maybe liable to any action on account 'of such ownership or interest.' It is declared by law to be the duty of every association or company formed for the purpose of the transportation of pas- sengers or property, either by boats, vessels or stages, to make iLawsofl849, chap. 258, §2. Md § 5. « id. § 3. 6 Laws of 1851, chap. 455. 'Id. §4. 156 NEW-TOEK JUSTICE. a statement of the names of the persons composing such as- sociation or company, and to file in the clerk's office of each county through which such association or company may trans- act its business, a copy of such statement.' Until such state- ment is so filed, any action to be brought against such associ- ation or company, will not be abated by reason that all the members of the association are not joined in the action." After such statement is made and filed, any action brought against the persons named in such statement, will not be abated for the reason that other owners may have become interested, unless, thirty days previous to the bringing of such action, a further statement is filed, as above provided, and naming any change in the several persons composing such association, and the time when such change took place ; nor can any action become non-suited or defeated by reason that any of said per- sons have ceased to be interested therein, unless at least thirty days before such action is brought, a notice thereof is filed as aforesaid." It is provided by statute that every person who shall, for vexation and trouble, or maliciously, cause or procure any other to be arrested, attached or in any way proceeded against, by any process or proceeding at law, or in any other manner prescribed by law, to answer to the suit or prosecution of any person, without the consent of such person, or where there is no such person known, shall forfeit to the person so arrested, attached, or proceeded against, treble the damages and expen- ses which, by any verdict, shall be found to have been sus- tained and incurred by him ; and shall forfeit to the person in whose name such arrest or proceeding was had, two hundred and fifty dollars ; and shall be deemed guilty of a misdemean- or, punishable, on conviction, by imprisonment for a time not exceeding six months.* Sections 111, 113 and 113 of the Code, and which are made applicable to suits in Justices' Courts," provide as follows : § 111. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section one hundred and thirteen, but this section shall not be deem- 1 Laws of 1836, chap. 883, § 1. * 2 E. S. B50, § I, » id. § 2. » Code, §§ 8, 64. » Id § 8. PARTIES TO CIVIL ACTIONS. 157 ed to authorize the assignment of a thing in action not aj-ising out of contract. >«^4S»v A- >M•^*^/l*-L^^^ ^^-i*4^ * § 112. 'In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set- ,-'bff or other defence existing at the time of or before notice of the assignment ; but this section shall not apply to a negotia- ble promissory note or bill of exchange, transferred in good . faith, and upon good consideration, before due. j.r^ ^ /Cs.^^ \\'}J% 113. An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the ac- tion is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the ben- efit of another. Where a married woman is a party, her husband must be joined with her, except that, when the action concerns her , separate property, she may sue alone ; and except also that ^ when the action is between herself and her husband she may sue or be sued alone ; but where her husband cannot be thus joined, she must prosecute or defend by her next friend.' ^ After the commencement of such a suit against her. there can be no further proceeding therein, until her next friend has been appointed ; and when such appointment has not been made upon her own application, it may be made by the Court on the application of the plaintifl/ If the plaintiff, being a married woman, and an infant, be joined in an action with her husband, she need not appear by guardian, unless the action is to recover her separate property ; and where the action is to recover her separate property, the husband cannot be guardi- an or next friend.' ^ \: ' ' •' ""/ -^ j?^,' "j^^ j^,', //.■' ;.: ^ ' j^^^ , Any plaintiif in an' action before a Justice may appear and conduct his suit in person, except infants and corporations aggregate ;' and /he lattei? may appear by attorney, but the vVneniian mrant has any right of action to recover any debt or damages, he is entitled to maintain a suit thereon ; and the • Coao, § 114 ; 6 Howard's Prac. Eep. 396. = 6 Howard's Prac Kep. 283. » 4 Sundford, T21. / « 2 E. S. 282, § 89. 9kMr^^ ^0pe 158 NEW-TOEK JUSTICE. ..same, cannot be deferred or delayed on account of sncli infant not being of full age.' •*•"•"•• ••.,.,»•• • An infant plaintiflf must appear by guardian, who may be appointed by the Justice before whom the action is prosecu- ted, or by a county judge."" The guardian for an infant plain- tiff must be appointed upon the application of the infant, if he be of the age of fourteen years, or if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one ; if he has none, then to the person with whom such infant resides." Such application may be verbal or in writing. The person appointed must be a suitable person, having no possible interest in the controver- sy adverse to that of the infant. He may be named by the applicant, and must consent in writing to be such guardian, and becomes responsible for costs in the action." The consent must be filed with the Justice.' The appointment must be made before the issuing of process ; or, when issue is joined without process, before issue is heard." Formerly, the statute required the Justice to appoint a next friend ; it is presumed, however, that that term is abolished by the Code, and the name of gua/rdian substituted,' as the provisions of the Code in re- gard to appointing guardians are made applicable to Justices' Courts." § 5. Consent to he Oiiardian for Infcmt Plaintiff. Cayuga County, ss. I hereby consent, at the request of "William Brown, who is under the age of twenty-one years, to act as his guardian in an action about to be brought by him upon a promissory note, against Joseph Swift, before Horace T. Cook, a Justice of the Feace of the county aforesaid ; and I do hereby, for value received, promise to pay the said Joseph Swift such costs as he shall recover against the said "William Brown in the said action. ■ James Welson. Dated, December- 8;, 1852.. 1 2 E. 8. 445, § 1. Md.238,§43. a Code, §116. Md. 232, §40. > Id. § 116. ' 2 Code Eeporter, 8. < 2 E. S. 232, % 40. " Code, §§ 8, 64 n\ , %. .v'\» • PAETIES TO CmX ACTIONS. 159 The Justice, or County Judge, should endorse the appoint- ment of the guardian upon the consent before it is filed, as follows : The said James "Wilson is accordingly appointed guardian. "^ HoEACE T. ,Cqok, Justice of the JPeace, ihe toilowmg sections oi the (Jode are made appncable to suits in Justices' Courts :' § 117. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title. § 118. Any person may be made a defendant, who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein. § 119. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants ; but if the consent of any one, who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the* complaint; and when the question is one of a common or general interest of many persons, or when the parties are very numerous and it may be impracti- cable to bring them all before the Court, one or more may sue or defend for the benefit of the whole. § 120. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes may, all or any of them, be included in the same action, at the option of the plaintiff. § 121. No r 'tion shall abate by the death, marriage or oth- er disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage, or other disability of a party, the Court, on motion, at any time within one year thereafter, or after- wards on a supplemental complaint may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party ; or the 160 NEW-TOEK JUSTICE. Court may allow the person to wliom the transfer is made to be substituted in the action. § 122. The Court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights, but when a complete, determination of the controversy cannot b^ had without the presence of other partiei^^he .Court must cause them to be brought in. And when, in an action for the re- covery of real or personal property, a person, not a party to the action, but having an interest in the subject thereof, makes application to the Court, to be made a party, it may order him to be brought in by the proper amendment. A defendant, against whom an action is pending upon a contract, or for spe- cific, real, or personal property, may at any time before an- swer, upon afiidavit that a person, not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such per- son and the adverse party, apply to the Court for an order to substitute such person in his place, and discharge him from liability to either party on his depositing in Court the amount of the debt, or delivering the property, or its value, to such person as the Court may direct ; and the Court may, in its dis- cretion, make the order. No suit commenced against any supervisors or other public officers,' -will be abated or discontinued by the death of such officers, their removal from or resignation of their offices, or the expiration of their term of office ; but the Court in which any such action is pending, raust substitute the names of the successors in such office, upon the application of such succes- sors, or of the adverse party." But before any new defendant can be so substituted without his consent, at least fourteen days' notice of the apphcation for that purpose, must be per- sonally served on him.' > Ante, p. 152. a id. § 101. s 2 E. S. 474, § 100. LONG SUMMONS. 161 CHAPTER VI. OF THE COMMENCEMENT OF CIVIL ACTIONS AND THE DIFFERENT FORMS OF PROCESS. We come now to consider tlie manner in which an action may be commenced, and parties be brought before a Justice's Court. Suits may be commenced before a Justice either by the voluntary appearance and agreement of the parties, or by pro cess ; when by process, it must be either a summons, a war- rant, or an attachment.' When a suit is instituted without process, it is deemed to be commenced at the time the part p;-, join issue ; when by warrant, at the time of the arresi of the defendant ; and when by attachment or summons, on he day when the process is delivered to the constable. But if two or more suits be commenced by summons on the same day, that suit is first commenced in which the process is first served.^ Actions against the boards of supervisors of counties, and actions against towns are commenced by summons. ° Actions against the supervisors and other public officers mentioned in 2 E. S. 473, § 93, {ante, p. 151,) must be brought against them individually, specifying in the process, pleadings and proceed- ings, their name and office ; and such actions may be com- menced in the same manner as against individuals." There are four kinds of process : Long Summons, Warrant, Short Summons, and Attachment. 1. LONG SUMMONS. The first process against freeholders, and against inhabitants having families, except when otherwise provided by statute, 1 2 E. S. 22T, § 11. » 2 E. S. 4T3, § 96. Md. § 12; 8 Gaines, 188; 3 Denio, 12; 18 * id. § 96. JofanBon, 14; 1 Cowen, 115. 12 162 NEW-TOEK OTJSTICE. must be a summons, but no person can be proceeded against by summons, out of the county in which he resides." The summons must be directed to a constable of the county where the Justice resides, commanding him to summon the defendant to appear before the Justice who issued the same, at a time and place to be named in such summons, not less than six nor more than twelve days from the date of the same, to answer the complaint of the plaintiff.'' Since the Code, abolishing all forms of. pleading and names of actions, the form of summons required by the Eevised Statutes' is obso- lete, and the summons need not express the cause of action, nor the nature of the plaintiff's claim. It is enough to say, "to answer the complaint of A. B., then and there to be ex- hibited, to his damage one hundred dollars or under." ' If the summons does not contain the name of the Justice, or the place of appearance, the defendant may disregard it, and move to have the judgment set aside as irregular.' If the parties sue in a particular character, that character should be given in the process, as follows : Administrators.- — A. B. and C. D., administrators of all and singular the goods and chattels, rights and credits, which were of E. F., deceased. Executors. — A. B. and C. D., executors of the last will and testament of E. F., deceased. Surviving Executor. — A. B., surviving executor of the last will, &c. Surviwor of Pa/rtm,ers, or of Joint Creditors. — A. B., survi- vor of A. B. and C. D. Husband and Wife. — A. B., and C. B. his wife. Assignee of Bail Bond. — ^A. B., assignee of A. P., Esq., Sheriff" of the county of Assignee of Insolvent Debtor. — A. B., assignee of E. F., an insolvent debtor. Overseers of the Poor. — A. B. and C. D., Overseers of the Poor of the town of , in the county of Plaintijfin an Action for a Penalty. — A. B., wlio sues as well for liimself, as for the Overseers of the Poor of the town of , in the county of " 2 E. 8. 227, § 18. * 11 Barbour, 657 ; 12 id. 21. / C ' •' . ' id. 223, § 14. ° 8 Code Eeportcr, 174 ; 17 'Wendell, 617 "id. LONG SUMMONS. 163 It is provided by statute, that when the name of any de- fendant sued in a Justice's Court is not known to the plaintiif, he may be described in a summons or warrant, by a iictitious name ; and that, if a plea in abatement be interposed by such defendant, the Justice before whom tlie suit is pending may amend the proceedings, according to the truth of the matter, and proceed in the cause, in like manner as if tlie defendant had been sued by his right name.' Pleas in abatement hav- ing been abolished by the Code, the Justice may permit the plaintiff to amend when the answer is put in, if the objection be raised in the answer. , , i : Joint debtors, it seems, may be sued by long summons, where one of them resides in the county, though one of them be a non-resident of the county.^ If a summons require the defendant to appear and answer in damages exceeding the amount for which the Justice can render judgment, it is a nullity.' It must be signed by the Justice, and may be under seal or without seal.' It must be entirely filled i^p, and have no blank either in the date or otherwise, at the time of its delivery to the officer to be exe- cuted; else it is void.' These provisions in regard to the signing, sealing, and filling up of a summons, apply also to a warrant, attachment, and execution, in civil proceedings. Every Jiistice. who violates the provision in regard to the fil- ling up of process, is guilty of a misdemeanor, and on convic- tion is subject to fine or imprisonment, or both, in the dis- cretion of the Court ; and every such Conviction operates as a forfeiture of the office of the Justice so convicted.' All writs and process must be in the name of the people of this State, except where otherwise provided by law.' All writs, process, proceedings, and records in any Court within this State, must be in the English language, (except that the proper and known names of process, and technical words, may be expressed in the language commonly used,) and must be made out on paper or parchment, in a fair, legible character, in words at length and not abbreviated ; but such abbreviations J Laws of 1830, chap. 820, § 37 ; SE S. 2T4, < 2 E. 9. 267, § 232 § 282. » id. § 283. ~ a2Denlo, 95. . «id. §236. a 8 Hill, 631. id. 276, § a 164 NEW-TOEK JUSTICE. as are commonly used in the English language may be used, and numbers may be expressed by Arabic figures, or Eoman numerals, in the customary manner.' A Justice cannot depute any part of his oflBcial power to another ; but he may depute another to do a specific act, with- out giving him any discretionary power, as to direct one to fill up a process.' A rail-road company may properly be sued by long sum- mons. The authority of a Justice to issue a long summons on the request of the plaintiff, is as ample as to issue a war- rant or attachment upon a special application and the proof required by law.' § 6. Summons. Town of , ) gg. County, ) To any Constable of the said County, greeting : The people of the State of New-York command you to sum- mon A. B. to appear before me, the undersigned, one of the Justices of the Peace of the town aforesaid, at my ofiice, [or, as the case may he,] in the said county, on the day of , at o'clock in the noon, to answer the complaint of 0. D., then and there to be exhibited, to his damage one hundred dollars or under. And have you then there this pre- cept. Witness my hand, the day of , 18 . J. H. B., Justice of the Peace. A long summons must be made returnable not less than six nor more than twelve days from its date." In computing the time, the day of the date is to be excluded and the return day included." If the twelfth day from the date would fall on Sunday, the summons must be made returnable on the prece- ding Saturday ; ° but if a Sunday intervenes in computing the time, it must be included.' The rule introduced by the Code, excluding Sunday if it is the last day, only applies tp ^cts the time for doing which is prescribed by the Code.^ -" ' ^'- *"^ iC- t^-i\,\t. i ' ■„ >-,; ,-- . --1 ' L^_j 1 2 E. 8. 270, § 9. "6 Cowen, 659 ; 10 Wendoll, 422. a 10 Johnson, 405; 20 Id. 63; 9 Barbour, 611; '7 Cowen, 147; 1 Sancjford, 664. 11 id. 62T. ' 2 id. 181. » 4 ComBtock, 874. ' ' Code, § 407. « 2 K. B. 228, § 14. WAEEAira. 165 It is irregular to make any civil process returnable on Sun- day ; ' and civil process issued on that day is not a good com- mencement of a suit." 2. WARRANT. A Justice must, upon application, issue a warrant in the fol- lowing cases : 1. Where the defendant is a non-resident of the county ; 2. Where the plaintiff' is a non-resident, and ten- ders to the Justice security for the payment of any sum which may be adjudged against him in the suit ; 3. When it shall appear to the satisfaction of the Justice, by the affidavit of the applicant, or of any other witness, that the person against whom such warrant is desired, is about to depart from the county, with intent not to return thereto ; 4. ^Vliere the de- fendant is an inhabitant of the county, having a family, or is a freeholder of the same county, and it shall in like manner appear to the satisfaction of the Justice, that the plaintiff" will be in danger of losing his debt or demand, unless such war- rant be granted/ If the case in which the Justice is requested to issue a war- rant, is clearly within one of these subdivisions, there is still another j)rovision of the statute which must be considered by him before he issues the warrant. The thirty-first section of the act to abolish imprisonment for debt provides as follows : "No warrant shall issue against a defendant in any case in which, by the provisions of the last preceding section, an ex- ecution on the judgment recovered could not be issued against his body, and whenever a warrant in such case shall issue, a like affidavit shall be required as for the issuing of an execu- tion by the provisions of said section." ' The "last preceding section" thus referred to, enacts as follows : " No execution issued on any judgment rendered by any Justice of the Peace, upon any demand arising upon contract express or implied, or upon any other judgment founded upon contract, whether is- sued by such Justice, or by the clerk of the county, shall con- tain a clause authorizing an arrest or imprisonment of theper- 1 5 Paige, 641 ; 1 Barbour's Ch. E. 273. = 2 E. 8. 223, § 17. ' 12 Joimaon, 178. * Laws of ItSl, chap. 300, § 31. 166 NBW-TOEK JUSTICE. son against whom the same shall issue, unless it shall be prov- ed, by the affidavit of the person in whose favor such execu- tion shall issue, or that of some other person, to the satisfac- tion of such clerk or Justice, either, 1. That such judgment was for the recovery of money collected by any public oificer ; or, 2. For official misconduct or neglect of duty ; or, 3. For damages for misconduct or neglect, in any professional em- ployment." ' It will be seen, therefore, that an execution issued upon a judgment rendered by a Justice upon a demand arising upon contract express or implied, or upon any other judgment foun- ded on contract, cannot authorize the arrest of the defend- ant, unless the application for the execution be accompanied by an aiSdavit which proves to the satisfaction of the Justice a case falling within some one of the said three subdivisions ; and, where such execution cannot be issued, a warrant cannot be. In all cases, on application for a warrant, the person apply- ing must, by affidavit, state the facts and circumstances within his knowledge, showing the grounds of bis application, where- by the Justice may the better judge of the propriety and ne- cessity of issuing the warrant." A mere affidavit that a party believes he will be in danger of losing his debt unless a war- rant issues, is not enough. ° A Justice cannot, on his own knowledge, issue a warrant at the suit of a non-resident, without oath.* "Where the first process is by summons when it should have been by loarrant, advantage may be taken of the error, by objection before the Justice, on the return of the summons, and, if he err in deciding such objection, an appeal lies.' A non-resident plaintiff may have a warrant against a resi- dent defendant from any Justice of the county, and need not apply for it in person ; but a wan-ant against a non-resident defendant must be procured from a Justice of the town in which the defendant then happens to be." 1 Laws of 1881, chap. 300, § 30. « 12 Johnson, 422; 2 id. 1S9; 2 Oowen, 429. ' 2 U. 8. 229, § 19..' ■ ' • 16 WendcH, 33. a 3 Wendell, 889 ; 18 Id. 46; 1 Denlo, 692. • 10 id. 858. WARRANT. 167 The non-residence of one of two plaintiffs is not enough to authorize the issuing of a warrant.? ^v -,,., % 1. Affidavit for a Warrant, in an Action for a Wrong. County, ss: C. D., being duly sworn, says' that he has, as he verily be- lieves, a good cause of action against A. E., for breaking and entering the close of the said C. D., in the town of , in said county, and taking and carrying away therefrom, &c., \_8et forth the cause of action.~] And this deponent further says, that the said A. B., who resides in said county of , is not a freeholder therein, nor an inhabitant thereof having a family, [or, that the said A. B. is not a resident of the said county of , but a resident of the county of ; or, that he, the said C. D., is a non-resident of said county, and a resident of the county of , and is willing to give secu- rity for the payment of any sum which may be adjudged against him in any suit to be commenced hereupon ; or, that the said A. B. lately informed E. F., in the presence of this deponent, that he was about to depart from said county of , with intent not to return thereto, (or state other facts and circuinsta7ices showing such intention y) or, that the said A. B. is an inhabitant of the said county of , and has a family, {or, is a freeholder of the said county of ,) and that this deponent will, as he verily believes, be in danger of losing his said demand, unless such warrant be granted, and that the following are the facts and circumstances on which that belief is founded, viz: {state the facts ;)] and this depo- nent makes application for a warrant against the said A. B., according to the statute. C. D. Sworn to this day of , 18 , before ,jne, H. T. C., Justice of the Peace. ■) § 8. Affidavit for a Warrant, in an Action on Contract. County, ss : C. D., being duly sworn, says that he has, as he verily be- lieves, a good cause of action against A. B., for money collect- ed by the said A. B. in his official character as constable, \or, for the official misconduct, {or, neglect of duty,) of the said A. B. as constable ; or, for damages arising from the misconduct or neglect of the said A. B., in his professional employment as an attorney ; setting forth always th,e facts and circumstam^ ces showing the grounds of the application.'\ And this depo- 1 1 Cowen's Treatise, 520. 168 NEW-TOEK JTJSTIOE. nent further says, that the said A. B. is a non-resident of the said county of, &c., [or, as m% 7,] and, therefore, he makes application for a warrant against the said A. B., according to the statute. C. D. Sworn, &c., \_as in §7.] "Where the plaintiff is a non-resident of the county, and ap- plies for a warrant, he must tender to the Justice security for the payment of any sum which may be adjudged against him in the suit.' So also, whenever a non-resident plaintiff is not entitled to a warrant, and applies for a short summons, as we shall see he may do, he must give the like security." § 9. Security hy a Non-Resident Plaintiff, on issuing a War- rant, or a Short Summons. County, ss : Be it remembered, that on the day of , 18 , application having been made to the undersigned, one of the Justices of the Peace of said county, by C. D., a non-resident of said county, for a warrant, [or, short summons,] in his favor against A. B., in an action arising on contract, [or, as the cause <^ action may he /] E. F. thereupon personally came before me, and acknowledged that he owed to the said A. B. one hundred dollars, to be paid if default should be made in the following condition, viz : that the said C. D. shall pay to the said A. B. any sum which may be adjudged against him the said C. D., in the suit to be commenced by the said warrant, [or, short summons.] H. T. C, Justice, &c. § 10. Written Security in lihe cases. • jr County, ss : Appli^tion having been made to H. T. C, Esq., one of the Justices of the Peace of said county, by C. D., a non-resident of the said county, for a warrant in his favor, against A. B., in an action arising on contract, [or, as the caiise of action may ie:~\ Now, therefore, for value received, and according to the statute in such case made and provided, I do hereby agree with, and become bound to, the said A. B., that the said C. D. shall pay to him any sum which may be adjudged against the said C. D. in the suit t<> be commenced by the said war- rant, [or, short summons.] E. F. Dated the day of , 18 Signed, taken, and acknowledged, the day of ,18 , before me, PI. T. C, Justice, &c. » 2 E. B. 228, § 17. ' LawB of 1831, chap. 800, § 31. WAEEANT. 169 A warrant must be directed to some constable of the county where the Justice issuing it resides, and must command the constable to take the defendant and bring him before the Jus- tice, to answer the complaint of the plaintiff; it must further require the constable, after he shall have arrested the defend- ant, to notify the plaintiff of the arrest.' The Eevised Stat- utes required the warrant to mention the plea^ but this is no longer necessary, any more than it is in a summons.'' § 11. Warrant in a Civil Action. County, I ■ Town of , P^- To any constable of the said county, greeting : The people of the State of New- York command you to take A. B., and bring him forthwith before me, one of the Justices of the Peace of the said town, to answer the complaint of 0. D., then and there to be exhibited, to his damage one hundred dollars, or under ; and you are further required, after you have arrested the defendant, to notify the plaintiff of such ar- rest, and make return hereupon to me, of the manner in which you shall have executed this precept. Witness my hand, the day of , 18 . H. T. C, Justice, &c. A Justice may, upon application, issue either a summons or warrant, at his option : 1. Against a defendant residing in the same county, who is neither a freeholder of the county, nor an inhabitant having a family ; 2. Against the defendant upon whom a summons shall have been served only by leav- ing a copy, or in any other way than by reading or delivering a copy to him personally, and who shall not have appeared at the time and place appointed in such summons, nor shown good cause for not appearing. But the suit instituted by such summons, shall be deemed discontinued, unless the warrant be issued on the same day of the return of the first summons ; and if so issued, the- suit shall be deemed to have been con- tinued thereby." This power of the Justice must, however, be exercised subject to the provisions of the thirty -first section of the act to abolish imprisonment for debt, upon which we have already commented.'' 1 2 R. S. 229, § 20. » 2 B. 8. 228, § 18. ' Ante, p. 162. « Ante, pp. 165, 166. lYO NEW-YOEK JUSTICE. Where a summons is the regular process, a warrant without oath, against a freeholder or an inhabitant having a family, is void ; and, though a summons or warrant may he issued against an inhabitant having a family, or a freeholder, after personal service of the summons, and the default of the de- fendant to appear, the plaintiff must make his election in a reasonable time thereafter ; and where the warrant was issued twelve months after the summons, it was held not to be a con- tinuation of the suit, and void.' 3. SHOET SUMMONS. A short summons is the proper form of process to be issued in favor of a non-resident plaintiff, suing as such, when the defendant cannot be arrested under the pirovisions of the non- imprisonment act. And a short summons or attachment is the only process which can be issued in similar cases, against a non-resident defendant ; and any other process would be void^./'.-^^ ; ;. .;^; ; ' ' , . ^ .--,: '^' '^-^^'-"'^^ The provisions of the act to abolish i'mpris;6'nment for debt, authorizing the issuing of a short summons, are as follows : § 32. Whenever by the provisions of the last preceding section, ( § 31,) no warrant can issue, and the plaintiff shall be a non-resident of the county, and shall give the like proof of the fact, and tender to the Justice the security now required by law to entitle him to a warrant, the Justice shall issue a summons, which may be made returnable not less than two nor more than four days from the date thereof, and shall be served at least two days before the time of appearance men- tioned therein ; and if the same shall be returned personally served, the same proceedings shall be had, and no longer ad- journment granted than in case of a warrant at the instance of a non-resident plaintiff.' § 33. Whenever, by the provisions of the thirtieth section of this act, no warrant can issue, and the defendant shall re- side out of the county, he shall be proceeded against by sum- mons or attachment, returnable not less than two, nor more than four days from the date thereof, which shall be served at ' 1 Wendell, 210. ., J^ .j .-, ' I^" of 16S1, chap. 800, § 32. J 1 DsnlQ, 1TB, ^ -A m ^ ^'^. SHOET SUMMONS. 171 least two days before the time of appearance mentioned there- in ; and if snch defendant be proceeded against otherwise, the Justice shall haxe-no jurisdiction of the cause.' ■3' i- ' ''-'• "Where the plaintiif and defendant are both non-residents, the summons may issue under section thirty-three, without the giving of security ; the process being founded oji t;he de- fendant's residence, and ijot on the plaintiff's.'' £'':■ i\X'\j!J f^'^ ' § 12. Affidavit for Short Summons hj lion- Resident Plaintiff. County, ss: ^'/^Ai "^t C. D., being duly sworn, says that he has, as he verily be- lieves, a good cause of action, arising on contract, [o?-, on a judgment founded on contract, setting forth the contract when and where made, and what, or the jxidgment, wJien and where recovered, and for Jiow much,'] against A. B., upon which, ac- cording to the provisions of the thirty-first section of the act to abolish imprisonment for debt, and to punish fraudulent debtors, no warrant can issue against the said A. B.; * and that this deponent resides in the town of , in the county of , and not within the said county of ; and this deponent "prays a short summons against the said A. B., on giving security, according to the statute. Sworn to, this dayT C. D. of , 18 , before me, | H. T. C, Justice of the Peace. For forms of security to be given by a non-resident plain- tiff on a short summons, see Forms § 9 and § 10, ante, p. 168. § 13. Affidavit for Short Summons agahist Non-Resident Defendant. i3 /3'^^^ ^Z^ County, ss : C. D., being duly sworn, &c., \as in § 12 to the * am,d then add:] and that the said A. B. resides in the county of , and out of the said county of ; and this deponent prays a short summons against the said A. B. 0. D. Sworn, &c., [as %n § 12.] For a form of short summons, see Form § 6, ante,p. 164. A short summons must be made returnable not less than two nor more than four days from the date thereof." In compu- 1 Laws ofl831, chap. 300, §83. -/a-'j. > Laws of 1831, chap. 800, §§ 32, 38. ' 15 WendoU, 652. / ' , , CDi f (^ '' ■; . 172 NEW-YOEK JUSTICE. ting the time, the day of the date is to be excluded, and the return day included ; and if the fourth day from the date would fall on Sunday, the summons must be made returnable on the preceding Saturday ;' but if a Sunday intervenes in computing the time, it must be included." 4. ATTACHMENT. The Eevised Statutes provide, that an attachment against the property of any debtor may be issued by a Justice of the Peace on the application of a creditor, in the manner hereaf- ter set forth, whenever it shall satisfactorily appear to the Justice, that such debtor has departed, or is about to depart, from the county where he last resided, with intent to defraud his creditors, or to avoid the service of any civil process, or that such debtor keeps himself concealed with the like intent.' Such application may be made by any creditor, or by his per- sonal representatives, having a demand against such debtor personally, whether liquidated or not, arising upon contract, or upon a judgment rendered within this State, amounting to one hundred dollars, or any less sum.* In addition to the cases thus provided for, section thirty-four of the non-imprisonment act provides, that any suit for the recovery of any debt or damage arising upon any contract express or implied, or upon any judgment for one hundred dollars or less, may be so commenced, whenever it shall sat- isfactorily appear to the Justice that the defendant is about to remove from the county any of his property, with intent to defraud his creditor, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete any of his property, with the like intent, whether such defendant be a resident of this State or not.' The application for every such attachment must be in wri- ting." But before it can issue in any case, the plaintiff must, by his own aflidavit, or that of some other person or persons, prove to the satisfaction of the Justice, the facts and circum- > Ante, p. 164, note 6. ' Laws of ISSl, cliap.800, §M; Lawsof 1842, ' 2 Sandford, 181. , chap. lOT, § 1; Code, §68./ • / ' > 2 E. 8. 280, § 26, / ' • 8 E. S. 280, § 28. Md.§2r; Code, §68. ATTACHMENT. 173 stances to entitle him to the same.' The applicant must also, when the case is one under the Eevised Statutes, execute to the defendant, and deliver to the Justice, a bond with suffi- cient surety, to be approved by such Justice in writing upon such bond, in the penalty of two hundred dollars, conditioned to pay such defendant all damages and costs which he may sustain, by reason of the issuing such attachment, if such plaintiff fail to recover judgment thereon, and, if such judg- ment be recovered, that such plaintiif will pay the defendant all monies which shall be received by him from any property levied upon by such attachment, over and above the amount of such judgment, and interest and costs thereon." Such bond extends to the final determination of the cause ; and where the plaintiif recovers a judgment before the Justice, but it is reversed on appeal, the bond may be sued.^ It will not do, instead of such bond, to execiite a covenant to pay $200, or to pay all damages and costs, &c. ; the bond is necessary to give the Justice jurisdiction." And a bond not truly setting forth the suit in which the attachment issues is defective.' There is a general provision of the statute, in regard to all bonds, that whenever a bond is required by law to be given by any person, in order to entitle him to any right or privilege conferred by law, or to commence any proceeding, it shall not be necessary for such bond to conform in all respects to the form thereof prescribed by auy statute, but the same shall be deemed sufficient if it conform thereto substantially, and do not vary in any matter, to the prejudice of the rights of the party, to whom or for whose benefit such bond shall have been given ;^ and further, that whenever such bond shall be defective in any respect, the Court, officer, or body who would be authorized to receive the same, or to entertain any pro- ceedings in consequence of such bond, if the same had been perfect, may, on the application of all the obligors therein, amend the same in any respect, and such bond shall there- upon be deemed valid from the time of the execution thereof.' > Laws of 1831, chap. 800, | 35.,. ,., » 13 Wendel), 404. » 2 E. S. 230, § 29./-* !'?> i- ' ' .' ■' « 2 E. S. 666, § 83. ' 21 Wondell, 2T0. ' id. § 84 * 1 Denio, 184. 174 HEW-TOEK JUSTICE. A bond may be thus amended in matters of substance, where an error has occurred through inadvertence, or from a misapprehension of the law ; as by adding the names of other sureties, where the requisite number have not joined. But this must be done with the consent of all the existing obligors in the bond.' In addition to the affidavit above specified, where the at- tachment is applied for under section thirty-four of the non- imprisonment act, before quoted, the plaintiff must, before any attachment can issue, by his own affidavit, or that of some other person or persons, prove to the satisfaction of the Jus- tice, that he has such a claim as is specified under the said thirty-fourth section, against the defendant, over and above all discounts which the defendant may have against him, spe- cifying, as near as may be, the amount of such claim, or the balance thereof ; " and the plaintifi", or some one on his behalf, must also execute a bond in the penalty of at least one hun- dred dollars, with such sureties and upon such condition as is above requiKed.in regard to an^ttachnient under the Revised Statutes, 'fff J The attachment issued in the foregoing cases must state the amount of the debt sworn to by the applicant, and must com- mand some constable of the county in which the Justice re- sides, to attach so much of the goods and chattels of the debt- or, as will be sufficient to satisfy such debt, and safely to keep the same, in order to satisfy any judgment that may be recov- ered on such attachment, and to make return of his proceed- ings thereon to the Justice who issued the same, at a time therein to be specified, not less than six, nor more than twelve days from the date thereof.* The same rules as to computing time and including Sunday, must be observed as in the case of a long summons." A Justice may, after the return of an attachment issued by him, amend it, by inserting the amount of the debt sworn to by the applicant." In addition to the attachments thus provided for, the thirty- 1 4 Paige, 290. * 2 E. S. 280, % 80. 5 Laws of 1881, chap. 800, J 85. ' Ante, p. 164 'ii.lU ^^ic II ': *U Wendell, 880. ATTACHMEH-T. 1Y5 third section of tlie non-imprisonment act provides as follows : § 33. "Whenever, by the provisions of the nineteenth sec- tion of this act, no warrant can issue, and the defendant shall reside out of the county, he shall be proceeded against by summons or attachment, returnable not less than two, nor more than four days from the date thereof, which shall be served at least two days before the time of appearance mentioned there- in ; and if such defendant be proceeded against otherwise, the Justice shall have no jurisdiction of the cause.' The same rules as to computing time and including Sunday must be ob- served as in the case af a short summons." An attachment under section thirty-three of the non-impris- onment act is void, if it be made returnable more than four days after its date.^ To authorize the issuing of an attachment by a Justice, un- der the thirty -third section of the non-imprisonment act, against a non-resident, the plaintiff must prove by his own affidavit, or that of some other person or persons, to the satisfaction of the Justice, the facts and circumstances to entitle him to the same ; and the plaintiff, or some one in his behalf, must also execute a bond in the penalty of at least one hundred dollars, with such sureties and upon such condition as is above re- quired in regard to an attachment under the Revised Statutes." And the application for the attachment must be in writing. Where the plaintiff and defendant are both non-residents, the attachment issues under section thirty-three, the process being founded on the defendant's residence and not on the plaintiff's.' There are, therefore, two kinds of attachments, long smd short. The latter issues against a non-resident defendant, and may be had when a short summons is also a proper process; either being taken, at the option of the party. A long attachment issues, when it is made to appear to tlie satisfaction of the Justice to whom application is made, that the debtor has departed, or is about to depart, from the county where he last resided, with intent to defraud his creditors, or 1 Laws of 1831, clap. 800, §83.//"^ «'i.'( ' 4 Laws of 1831, chap. 800, § 85 ; 4 Dcmo,692; = Ante,.pp. m, 1T2. 4 Comstock, 254. / • , ' 24 "WeEdeB, 485. ' 15 Wendell, 652. 176 NEW-TOEK JUSTICE. to avoid the service of civil process, or that such debtor keeps himself concealed, with the like intent; the application being made by a creditor, or his personal representatives, having a demand aigainst such debtor personally, whether liquidated or not, arising upon contract, or upon a judgment rendered within this State, amounting to one hundred dollars, or any less sum. The same process issues under the non-imprison- ment act, when the Justice is satisfied that the defendant is about to remove from the county some of his property, with intent to defraud his creditor, or that he has assigned, dispos- ed of, or secreted, or is about to assign, dispose of, or secrete, any of his property, with the like intent. The Revised Statutes limit the nature of demands, for which attachments may be sued out, to those existing against the dLobioT personally, whether liquidated or not, arising upon con- tract, or up on a j udgment rendered within this State. The non- imprisonment act extends the process to suits for the recovery of any debt or damage arising upon contract, express or im- plied, or upon awy judgment for one hundred dollars or less, whether rendered in this State or not, and whether the de- fendant be a resident of this State or not. The demand, how- ever, must be against the dehtov person alli/. In all cases, the facts and circumstances relied on as the foundation for the issuing of an attachment must be set forth distinctly in the afiidavit accompanying the application.' The afiidavit, however, need not be signed by the person ma- king it ; it is enough if he be sworn, and the Justice take down and certify his testimony." An affidavit of a plaintiif that, from reports and information he believes that his debtor keeps out of the county to avoid paying his debts, and that he has been informed that he has departed, and, as his creditors say, for the purpose of defraud- ing them, is not sufficient to authorize the issuino- of an at- tachment under the Revised Statutes.' An afiidavit showing that a debtor keeps himself concealed to avoid the service of a warrant issued under section four of the non-imprisonment act, is not sufiicient evidence that the latter keeps himself con- > 13 Wendell, 404; 20 Id. 77, 148; 4 Denio, '3 id. 60. C' 118. / / i ,^ ) , " ^.> , ' 10 Wendell, 420. ATTACHMENT. 177 cealed to avoid tlie service of civil process, unless it also ap- pears affirmatively that the charge on which the warrant was issued was an intent only to commit a fraud, or a fraudulent contracting of a debt.' An affidavit swearing to the ielief of the deponent as to the intent to defraud is sufficient, if it also states directly and positively the facts and circumstances on which the belief is founded.^ Under sections 34 and 35 of the non-imprisonment acl^ the plaintiff must state in his affidavit, the origin of his demand, that is, whether founded upon contract, or upon judgment, and must also state the facts and circumstances upon which the application is made, as that the defendant has declared his intention to remove his property, &c., or has assigned it without consideration, or secreted it, or any other circumstance indicating fraud ; the mere belief of the plain- tiff is not sufficient." An affidavit in which the facts are stated on belief only, is fatally defective.' The Justice who issues the attachment without the proof and security required by the statute is a trespasser ; but if the proof and security be given, though the proof be false in fact, ' he is not a trespasser.' § 14. Application for an Attacliment. To J. H. B., Esquire, Justice of the Peace of the town of , in the county of : The subscriber applies to you for an attachment against the Eroperty of A. B., on the grounds set forth in the affidavit ereunto annexed. Dated the day of , 18 . C. D. § 15. Affida/uit for a long Attachment under the Hevised Statutes. County, ss : C. D. being didy sworn, says, that A. B. is justly indebted to this deponent (or, to E. F.) in the sum of dollars, over and above all discounts which the said A. B. has against him, as near as he can ascertain the same ; which debt arose upoa ' 16 ■Wendell, 461. < 4 Denio, 98. ' 20 id. 145 ; 1 Barljoxir, B52. » 3 Coweii, 206 ; 10 ■Wendell, 196. s 14 WendeU, 28T. 13 178 NEW'TOEK JirSTICE. contract; [or, tipon a judgment rendered within this State, 8$ttmg forth the contract, when and v)h.ere made, and vihat, or the judgment when amd where recovered, and for how much /] * and that the said A. B. has departed from the said county of , where he last resided, with intent to defraud his credi- tors ; \or, with intent to avoid the seryice of some civil process, specifying what; or, that the said A. B. is about to depart from the said county of , &c., with intent, &c. , as above ; or, that the said A. B. keeps himself concealed within the said county of , where he last resided, with intent, &c., as above;'] and this deponent further says, &c., \Jiere state dis- tinctly the facts and circumstances necessary to satisfy tlie Justice that the/re are sufficient grounds for the attachment.] Sworn, &c., \as in § 12.] ' C. D. §16. Affidamit for a long Attachment, under ths Non-Impris- onment Act. County, ss : C. D., being duly sworn, says, &c., \as in, §15 to the''-, ex- cept that the judgment need not he rendered within this State, amd then add:] and that the said A. B. is about to remove his property from the said county of , with intent to defraud his creditors ; \or, that the said A. B. has assigned, disposed of, or secreted, his property, with intent to defraud his creditors ; or, that the said A. B. is about to assign, dispose of, or secrete, his property, with intent to defraud his credi- tors ;] and this deponent further says, that, &c. : [set forth the facts and circumstances, as directed in § 15.] ■ Sworn, &c., [as in § 12.] §17.- Affidavit for a short Attachment against a Non- Hesident. County, ss: M/.l' i> r^ (^/i/U-C-J// C D., being duly sworn, says, &c., \_as in § 15 to the *, .except that the judgment need not he rendered within this State, a/nd then add:] and that the said A. B. is a resident of the town of , in the county of , and out of the said county of ; and that no warrant can issue against him, on the demand of the said C. D., according to the act to abolish imprisonment for debt and to punisn fraudulent debtors. Sworn, &c., [as in % 12.] C. D. §18. Bond on all Attachments, long and short. Know all men by these presents : that we, CD., and E. F., \jf wnder tlhe Revised Statutes, the creditor must execute the ATTACHMENT. 179 hond, with a sureiy ; if imder the non-imprisonment act, it must ie executed hy the creditor, or some one on his iehalf, and a sv/rety ', in all cases, two obligors /] are held and firmly bound unto A. B., in the snm of two hundred dollars, \if wnder the non-innprisonment act, say, one himdred dollars,] to he paid to the said A. B., his executors, administra- tors, or assigns ; for which payment, well and truly to he made, we hind ourselves, our heirs, executors and administra,- tors, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , A. D, 18 .* Whereas the above bounden C. D. has made application to J. H. B., Esq., a Justice of the Peace of the town of , in the county of , for an attachment in his favor, against the property of the said A. B., in pursuance of the provisions of the Kevised Statutes, [or, of the act to abolish imprisonment for debt and to punish fraudulent debtors:] Now, therefore, the condition of this oblig'ation is such, that if the said obligors shall pay the said A. B. all damages and costs which he may sustain by reason of the issuing of said attachment, if the said C. D. shall fail to recover judgment thereon ; and if, if such judgment be recovered, the said C D. shall pay the said A. B. all moneys which shall be received by him from any property levied upon by virtue of such attachment, over and above the amount ol such judgment^ and interest and costs thereon, then this obligation to be void^ else of force. Sealed and delivered ) C. D. [l. s.] in the presence of j E. F. [l. s.] J. H. B. § 19. Approval of Justice on the Bond. I approve of the within bond and of the sufficiency of the sureties therein. J. H. B., Justice, &c. §20. AttachT/h&nt, in all cases. County, Kg. Town of , j ■ To any Constable of the said County, greeting : Whereas C. D. has applied to me for an attachment against the property of A. B., and produced satisfactory proof to me that he has a claim against the said A. B. for a debt of dollars, and that the said A. B. is about to depart from the said county of , where he last resided, [or, as the case may be,] with intent to defraud his creditors : Therefore, the People of the State of New-York command you, to attach so much of the goods and chattels of the said A. B., as will 180 NEW-YOEK JUSTICE. be sufficient to satisfy the said debt, and safely to keep the same, in order to satisfy any judgment that may be recovered on this attachment ; and that you make return of your pro- ceedings thereon to me, on the day of , at o'clock in the noon, at my office in the said town. [ Vary the retv/rn day, for a long or sJwrt attachment^ as the case may he.] Dated the day of , 18 . J. H. B., Justice, &c. CHAPTEIl yil. OF THE SEEVICE AND RETURN OF PROCESS. In the last chapter we enumerated the various kinds of process by which an action may be commenced, and the proper process to be issued in ditierent cases. The next steps in the progress of an action are the service and return of process. 1. SUMMONS. A long summons must in all cases be served at least six days before the time of appearance mentioned therein. If the defendant is found, it must be served by reading the same to him, and (if required by him,) delivering a copy thereof. If the defendant is not found, it must be served by leaving a copy thereof at the defendant's last place of abode, in the presence of some one of the family, of suitable age and dis- cretion, who must also be informed of its contents.' A short summons must be served at least two days before the time of appearance mentioned therein, the manner of service being the same as in the case of a long summons.' In computing the time, the day of service must be excluded, and the day of appearance included, so that a long summons, returnable in the forenoon of the eighth day of a month, is well served > 2 E. 8. 228, § 15. " Lawa of 1881, chap. 80O, § 88. SEEVING SUMMONS. 181 in the afternoon of the second day of the month.' If a Sun- day intervenes in computing the time, it must be included;" 80 that where a short summons is returnable on Monday, its service on Saturday is good. The constable must find the defendant if he can, but he is not bound to look for him at any other than his usual place of residence, or last place of abode." Process must be prop- erly served ; and if it be executed by a constable not having authority, the Justice has no jurisdiction.'' , A summons against a corporation must be served by deliv- ering a copy thereof to the president or other head of the corporation, secretary, cashier, treasurer, or director, or manag- ing agent thereof.' Such managing agent must be one whose agCMy X!;5ctends to all the transactions of the corporation." The constable serving a summons miistretui-n thereupon, in ; writing, the time and manner in which he executed it, and sign his name thereto.' A failure to state in the return the time of service, is ground for reversing the judgment ; ° but the omission is not a jurisdictional defect, which may be taken advantage of collaterally. ° A return that the service was personal is sufficient ; " and so, also, are the words " by copy ;" but the time of service must be mentioned." An appearance before the Justice, for the purpose of ma- king an objection, to the sufficiency of a return, is not a waiver , oi^e defect:' ^Y^U^ ^^"^-^^^ /u^^ ^*^ -^i*-^--^-^ if there aresev^ral defendants, the constable should state the time and manner, of. service upon each. <^l>^,v ,;.'." ;, ■'■' .'i ^'' ' ' /:>i ' ' ''7j ~ - (f ^ Zl/ * § ^^•* Heturns on Summons. Pei'sonally served, December 10th, 1852. Fees 25 cts. K". P., Constable. Personally served, December 10th, 1852, and copy left with defendant at his request. N. P., Constable. Served December 10th, 1852, by leaving a copy at defend- ant's house in the presence of his wife, who was informed of its contents, defendant not being found. N. P., Constable. ' 10 Wendell, 422. » 2 Sandford, 181. » 15 Johnson, 198. • 7 Cowen, 269 ; 8 id. 801. » Code, § 64, subd. 16 ; id. § 134. •6 Howard's Prao. Eep. ISa ' 2 E. S. 22S, § 16. ■(-: /%x .cA- ■^A2jS. e 17 Wendell, 617. « 2 Hill, 517. 10 2 Cowen, 418. lilSandford, 92. "14 Johnson, 481. 182 NEW-TOEK JUSTICE. 2. WARRANT. A warrant must be served by arresting the defendant and taking him forthwith before the Justice issuing the same. If the Justice, on the return thereof, be absent, or unable to hear or try tlie cause, or it be made to appear to the Justice, by the affidavit of the defendant, that the Justice is a material wit- ness in the cause, the constable must take the defendant before the next Justice of the city or town, who is authorized and required to take cognizance of the cause, and proceed there- A warrant is not spent, if the Justice is unable to try the cause, and dii-ects the parties to go before another Justice ; nor is the defendant entitled to be discharged, if the next Jus- tice before whom he is taken is also unable to try the cause.' The constable has a right to detain the defendant, while mak- ing a hona fide effort to find a magistrate to hear the cause ;' but he cannot detain him longer than 12 hours from the time he is brought before the Justice, unless the trial of the cause be sooner commenced or it be delayed at the instance of the defendant." Ifo manual touching of the body is necessary to an arrest ; it is sufficient if the party be within the power of the officer, and submit to the arrest.' A regular officer, acting within his proper district, is not bound to show his warrant, though it be demanded." 'But where the party submits to the arrest, the officer is bound to inform him of the substance of the warrant or process, to the end that the party, knowing for what he is arrested, may take the proper legal measures to discharge himself; and the offi- cer ought, either before or at the moment of the arrest, to inform the party that he has a warrant, or to make known to him, in some way, that he comes in his character as an officer to execute legal process.' A special deputy is bound to show his warrant on request, or the party may lawfully resist him.' No man can be arrested in his own dwelling-house, provi- ' 8 E. 3. S29, § 21. '1 Wendoll, 210. s 10 Wendell, 514. • 2 Hill, 86 ; 10 Wendell, 614 a 1(1. '2 mil, 88. < 8 E. 8. 229, § 25. » 24 Wendell, 418 ; 10 id. D14 EXEMPTION FEOM AEEEST. 183 ded the outer door be shut ; although, if the outer door bo open, the officer, having gained admittance, may break open aa inner door to arrest the defendant.' And if a man let a house, except one room, which he reserves for himself and occupies separately, an officer, ^vho enters through the open outer door of the house, may break open the door of the inner room to arrest him ;' but a previous demand of admittance is essen- tial.' So, too, where an officer had entered through an outer door of a house, and found the chamber door of the defendant^ who was a stranger, secured, it was held, that he was justified in breaking through a window, having first informed the defen- ^nyh^h^hadjj^j^cess to SM-veJ^*'*^ ^» ■- '^^^""^ ' Tneprivilege annexed to aowelling-house, does not extend to a store, warehouse, or barn, disconnected from it, and form- ing no part of the curtilage.' Every man's house is looked upon by the law to be his castle of defence and asylum* wherein he should suffer; no •nolence ; but it^^U not protept^ T]very member of the Legislature is privileged from arrest on civil process during his attendance at the session of the house to which he belongs, except on process issued in any suit brought against him for any forfeiture, misdemeanor, or breach of trust in any office or place of public trust held by him.' lie is also entitled to the same privilege for fourteen days previous to any such session, and also while going to and returning from such session, provided the time of such going or returning do not exceed fourteen days ;^ but he is not priv- ileged from arrest after he has reached home, though the four- teen days have not expired.' He is also entitled to the same privilege after any adjournment of the Legislature until its next meeting, when such adjournment does not exceed four- teen days." He is also entitled to the same privilege while absent with leave of the house to which he belongs." No officer of either house of the legislature can, whilst in actual attendance on the house, be arrested on civil process." 1 16 Johnson, 287 ; 17 id. 127. !■ 1 E. S. 154, | 6. 2 5 id. 862. s id. § 7. s 8 Bosanquet & Puller, 223. » 1 Johnson's Cases, 416 ; 4 Wendell, 804. ■• 8 Taunton, 250 ; Graham's Practice, 107. " 1 E. S. 154, § 8. '16 Johnson, 287. "Id. § 9. • 8 Blackstone'B Comuj. 288. "id. §10. 184 NEW-TOEK JUSTICE. An attorney is privileged from arrest only during the ac- tual sitting of a court, and not even then, unless he is em- ployed in some cause pending, and then to be heard in such court.' This exemption of an attorney applies only while he is in actual attendance upon the court ; and an arrest, if made while he remains at home, is good, though it prevent his con- templated attendance." ITor does the exemption extend be- yond the time of his necessary attendance on the court,' or to a case in which he is sued with any other person." All officers of courts of record, such as judges, constables, sheriffs, clerks, criers, &c., are privileged from arrest during *the ac'tvi'al sittiftg of an^^ourt of which ,th.ey are ^officers, ex- cept when sued with any other person.' •• The parties to a suit, and their witnesses, and all persons who have any relation to a cause, which calls for their attend- ance in court, as bail, &c., are protected from arrest on civil process, in coming to, attending upon, and returning from court." So is a person. attending court op a recognizance;' ■ a witness attending from another State to prove a wilt ;' and parties and, witnesses attending a reference." <>''^^'!^ ''■ i' -;■•■•' 'f ' ' ■^ " ' ;No female cin 1)0 arrested or imprisoned on any process in any civil action founded uj)on contract." Every officer who violates this provision of the statute will forfeit to the party aggrieved three times the damages found by the jury ; and will also be liable to an indictment for a misdemeanor, and upon conviction tliereof, in addition to any other punishment, will forfeit his office." A married woman cannot be arrested on mesne process, but may be on final." Persons belonging to the militia of this State are exempt from arrest on civil process, from sunrise to sunset on any day of parade." Won-commissioned officers, musicians, seamen, and marines, enlisted in the service of the United States", and non-commissioned officers, privates, and musicians, enlisted • 2 E. 8. 290, § 88. •iWondoll, 204 » 10 Johnson, 46a • 2 K. 8. 290, § 86 ; 8 Cowen, 863. • 2 R S. 290, § 86. • 1 Calnes, 116 ; Tldd's ProeUoe, 1T4 ; 2 John- eon, 294; 7 1(1. 538. 'id. » 2 id. 294. • 1 Ciiinos, lis. "2^3. 428, § 9. " id. § 11. IS 8 Cowen, S89. " 1 K. S. 803, § 2T. ESCAPE. 186 in the army of the United States, are exempt, during their terms of service, from all personal arrests, for any debt under the sum of twenty dollars, contracted before enlistment, and for any debt contracted after enlistment.' No acting commissioner, superintendent of repairs, collec- tor, or lock-keeper, on any canal, can be held to bail, or taken by warrant, in any civil sxiit, for any act done, or omitted to be done by him, in the exercise of his official duties.'' Every writ or process whereby the person of any ambassa- dor or other public minister of any foreign prince or state, authorized and received as such by the President of the Uni- ted States, or any domestic or domestic servant of any such ambassador or other public minister, may be arrested or im- prisoned, or his or their goods or chattels be distrained, seized or attached, is utterly' null and void ; and any person suing out, and any officer executing any such writ or process, is liable to imprisonment and fine.' But no citizen or inhabitant of the United States, who has contracted debts prior to his entering into the service of any ambassador, or other public minister, which debts are still due and unpaid, is entitled to such exemp- tion.* An ambassador from one sovereign State to another, while travelling through the territories of a State to which he is not accredited, in the execution of the dirties of his mission, is privileged fr(>m arrest on civil process." Members of Congress are, in all cases, except treason, fel- lony, and breach of the peace, j^rivileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same.' An escape is either negligent or voluntary ; negligent, when the defendant escapes without the consent of the officer ; vol- untary, when the officer permits him to go at large.' After a negligent escape, the officer may, in all cases, retake the defendant.' After a voluntary escape on mesne process, the officer may retake the defendant during the life of the process." Mesne 1 1 U. 8. statutes at Large, 695 ; 2 id. 136. son's Cases, 222. = 1 E, 8. 224, § 43. ' Graham's Practice, 148. » 1 U. S. Statutes at Large, IIT. » 6 Modern Eep. 231, 295. 1 id. » 2 Term Bop. 172 ; 7 WendeU, 188 ; 10 JA » 4 Sandford, 619. 514 ; C Johnson, 62. « Constitution U. 8. Art. i, sec. 6; 2 John- 186 NEW-TOEK JTTSTIOE. process, in contradistinction to final process, or process of ex- ecution, is all sucli process as intervenes between the begin- ning and the end of a suit. A warrant issued by a Justice is held to be mesne process, although it is the first process in a cause.' But, after a voluntary escape on final process, a defendant cannot be retaken on the same process ; and the officer thus retaking him is liable to an action for false im- prisonment." For an escape, either voluntary or negligent, an officer is liable ; but a recaption, or a voluntary return before action brought for the escape, is a good defence to such action." The statute provides, that in every action against an officer for the escape of any prisoner, the defendant may plead or give notice that before the commencement of such action, such prisoner voluntarily returned to^ the custody from which he had escaped, or that such defendant retook such prisoner, and had him within the custody from which he had escaped, before the commencement of such action ; and in either case, that such escape was made without the consent of such defend- ant.* Every officer who demands or receives any reward, gratuity, or valuable thing, to procure, assist, connive at or permit any escape of any pi-isoner in his custody, is. guilty of a misde- meanor ;' and, on conviction thereof, forfeits his office, and is forever thereafter incapable of executing the same." If a constable, who has a defendant in custody, discharge him by order of the Justice, when the Justice has no authori- ty to make such order, the constable is liable for an escape.' So, too, where a constable, after arresting a defendant on a warrant, left him, on his promising to follow, and the defend- ant was then arrested on a criminal charge, it was held that there was a voluntary escape, for which the constable was liable.' Consent or agreement by the plaintiff to au escape, after it has happened, without consideration, will not discharge the officer ; otherwise, where it is upon good consideration.' 1 10 Wendell, 514 « id. § 66. 8 2 Johnson's CascB, 18 : 5 Term Rep. 25. ' 9 Johnson, 14G. » 4 Johnson, 45 ; 7 Id. 175 ; 6 Cowen, 732. 8 e id. 62. 4 2 B. 8. 487, § 64. » 7 Cowen, 274. « li § 05. DUTT OF CONSTABLE. 187 It is provided by statute, that no constable shall ask or re- ceive anj money or valuable thing from a defendant, or any other person, as a consideration, reward or inducement, for omitting to arrest any defendant, or to carry him before any Justice, or for delaying to take any party to prison, or for postponing the sale of any property under any execution, or for omitting or delaying the execution of any duty pertaining to his office.' Every constable oiiending against this provi- sion is guilty of a misdemeanor, and, on conviction, is subject to fine or imprisonment, or both, in the discretion of the court ; and every such conviction operates as a forfeiture of the office of the constable so convicted." When an officer arrests any person by virtue of any mesne or final process, or by virtue of any other civil process, he is not allowed to charge such prisoner with any sum of money, or demand or receive from him any sum of money, or any valu- able thing, for any drink, victuals, or other thing whatsoever, furnished or provided for such officer, or for such prisoner, at any tavern, ale-house, or public victualling or drinking-house.' Every officer, who has arrested any person, is forbidden, while such person is in his custody, to demand or receive any gratuity or reward, upon any pretence whatever, for keeping such prisoner out of jail, or for waiting for such prisoner to find bail or agree with his adversary, or for waiting for any other purpose." If any person be arrested and kept in any house other than the jail of the county, neither the officer arresting him, nor the person in whose custody such prisoner may be, can de- mand or receive from such prisoner any other or greater sum for lodging, drink, victuals, or other necessary things, than has been prescribed by the Court of Sessions of the county ; or, if no rate has been prescribed by such Court, such officer or person cannot receive any other or greater sum, than shall be allowed by a Justice of the Peace of the same town, upon proof that the lodgings or other things furnished were so fur- nished at the request of such prisoner. And in no case can such officer or person demand or receive any pay or compen- » 2 E. 8. 26T, § 234 s id. 426, § 1. 2 la. § 286. 4 id. § 2. 188 HEW-TOEK JUSTICE. sation for any spirituous liquors sold or delivered to sucli prisoner.' A prisoner so kept in any hoiise may send for and have any beer, ale, cider, victuals, and other necessary food, and such bedding, linen, and other necessary things, as such pris- oner shall see fit, where and from whom he pleases, without any detaining or paying for the same, or any part thereof, to the officer arresting him, or to the person in whose custody such prisoner may be." No officer can demand or receive any money or valuable thing whatsoever for the chamber rent of any prisoner, or any fees, compensation or reward, for the commitment, detaining in custody, release or discharge of any prisoner, other than such fees as are expressly allowed by law.' Any officer who has arrested any prisoner in any county, may pass over, across and through such parts of any other county or counties as are in the ordinary route of travel from the place where such prisoner has been arrested to the place where he is to be conveyed and delivered, according to the command of the process by which such arrest has been made.* Such conveyance will not in any case be deemed an escape ; nor will the prisoner so conveyed, or the officer having him in custody, be liable to arre'st on any civil process, while pass- ing through such other county or counties." If any person is arrested under such circumstances, all persons concerned in the same with knowledge of the previous arrest, are answer- able as for an unlawful arrest." Every officer who offends against any of the foregoing pro- visions, will forfeit to the party aggrieved three times the damages found by the jury ; and will also be liable to an indict- ment for a misdemeanor, and, upon conviction thereof, in addition to any other punishment, will forfeit his office.' Every constable, serving a warrant, must return thereupon in writing the manner in which he executed it, and the fact whether he has or has not notified the plaintiff.' » 2 E. B. 426, § 8. » Id. § T. a id. 42T. § 4. "9 Wendell, 204 aid. §6. ' 2 K. 8. 428, § 11. < id. § 6. "id. 229, § 22. SEEVING ATTACHMENT. 189 § 21. Return on Warrant. I have arrested the defendant in this warrant, and have him now before the Justice who issued it, and have notified the plaintiif of such arrest. E". P., Constable. 3. ATTACHMENT. All attachments must be served iu the same manner. The constable to whom a long attachment is directed and deliv- ered, must execute the same at least six days before the return day ; and must attach, take into his custody, and safely keep, such part of the goods and chattels of the defendant, as shall not be exempt from execution, and as shall be sufficient to satisfy the plaintiff's demand.' He must immediately make an inventory of the property seized, and must, if the defend- ant can be found in the county, serve a copy of the attach- ment and of the inventory, certified by him, upon the defendant personally ; if the defendant cannot be found in the county, the constable must leave a copy of the attach- ment and of the inventory, certified by him, at the last place of residence of the defendant; but if he have no place of residence in the county where the goods and chattels are attached, the copy and inventory must be left with the person in whose possession the goods and chattels are found." A short attachment must be executed at least two days before the return day mentioned therein, and in the same manner as a long attachment. Where an attachment was issued against two persons as joint debtors, and" a return was made of personal service on one, but nothing was said as to service upon the other, a judgment obtained against both was reversed as to both.' In such a case, if the attachment is issued under the non-impris- onment act, the Justice must either dismiss the proceedings, or issue a summons.' The power and duty of a constable, in levying an attach- ment, are similar to his power and duty on an execution. It is his duty to search for and attach so much of the goods and chattels of the debtor, as will be sufficient to satisfy the ' 2 E. 9. 281, § St. '3 Denio, 317. « id. ; Laws of 1831, chap. 800, § 86. « 2 Comstock, 110. 190 HEW-TOEK JtrSTIOE. amount of the debt stated in the process. By goods and chattels are meant chattels personal, as distinguished from chattels real, the former including every thing that can be moved or transfeiTed from place to place. The distinction between real and personal chattels will be treated of here- after, under the head of Executions.' On taking the goods, the constable must see that they are safely kept. He is considered in the light of a bailee, and is accountable to either party for ordinary negligence, by which either sustains an injury; upon the principle that the bailment is mutually beneficial both to the bailor and bailee, ° If, however, the goods be lost or destroyed without his fault, he is not accountable.' He must, therefore, provide such convenient place for the safe keeping of the goods, as shall comport with his rights and duties in regard to them. It is provided by statute, that no goods attached by a con- stable shall be removed by him, if a bond be given and delivered to such constable by any person, with sufficient surety, to be approved by the constable, in a penalty double the sum stated in the attachment to have been sworn to by the plaintiff', conditioned that such goods and chattels shall be produced, to satisfy any execution that may be issued upon any judgment which shall be obtained by the plaintiff upon such attachment, within six months after the date of such bond.* And it is further provided, that if any person shall claim any goods or chattels attached by a constable, he may, after such seizure, and at any time before execution shall have been issued upon the judgment obtained on such attacl'ment, exe- cute a bond to the plaintiff, with sureties to l)< r.ppioved by the constable, or by the Justice who issued the attachment, in a penalty double the value of the property attached, con- ditioned that, in a suit to be brought on such bond, within three months from the date, such claimant will establish that he was the owner of the goods seized, at the time of such seizure, and, in case of his failure to do so, that he will pay the value of the goods so claimed, with interest." Upon > Post, Part I, Chap. XVII, Subd. i. • 2 E. S. 231, § 82. > Ante, p. BT. Md. § 88. Jl 2 E, S. ! »1 Cowen's Treatise, 669. 192 NKW-TOEK JUSTICE. ciency, the officer cannot be held liable, for be bas done all the law requires of him. The bond to be given to prevent the removal of the goods attached, is to be in the penalty of double the debt sworn to by the plaintiff; the penalty of the claimant's bond is to be double the value of the property attached. § 22. Bond to Prevent the Removal of Ooods Attached. Know all men by these presents, that we, A. B. and C. D., of the town of Brutus, in the county of Cayuga, are held and firmly bound unto E. F., in the sum of dollars, [dovMe the debt stated in the attachment to have been sworn to by the plaintiff,] to be paid to the said E. F., or to his certain attorney, executors, administrators or assigns ; to which pay- ment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the 1st day of January, 1853. The condition of this obligation is such, that if certain goods and chattels, to wit : one lumber wagon, one plough, one saddle, &c., [emtmerate all the articles attached,] which have been seized by the above named E. F., by virtue of an attachm«nt issued by G. H., Esq., a Justice of the Peace in and for said county, in favor of J. K., against the above bounden A. B., shall be produced, to satisfy any execution that may be issued upon any judgment which shall be obtained by the said J. K. upon the said attachment, within six months after the date hereof, then this obligation to be void, otherwise of force. Sealed and delivered | A. B. [l. s.J in presence of j C. D. [l. s.1 L. M. The surety in this bond is to be approved by the constable ; and although the statute does not require that bis approval should be written or endorsed on the bond, yet it is proper that this should be done. An acceptance of the bond by the constable, without objecting to the suificiency of the surety, would, however, be deemed an approval. This approval, if in writing, may be in the following form : I approve of the within bond, and of the sufBciency of the sureties therein. January 1st, 1853. E. F., Constable. Where property is taken under an attachment, the lien BOiromG PEOPEETT ATTACHED. 193 created thereby continues, notwithstanding the giving of a bond by the debtor for its production, until the issuing of an execution, and a reasonable time thereafter to make a levy. Eut if, in the mean time, the property be removed by the debtor beyond the jurisdiction of the Justice who issued the attachment, and it be there seized under another attachment, the lien is gone, notwithstanding the issuing of an execution on the judgment under the first attachment.' § 23. Bond hy Claimcmt of Property Attached. Know all men by these presents, that we, A. B., C. D., and E. F., of the town of Brutus, in the county of Cayuga, are held and firmly bound unto Gr. H., in the sum of dollars, [dovMe the value of the property attached^ to be paid to the said Gr. H., or to his certain attorney, executors, administra- tors or assigns, to which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the 1st day of January, 1853. Whereas certain goods, to wit : one double lumber wagon, one plough, one saddle, &c., [enumerate all the a/rticles attached^ were, on the day of , 1853, seized by J. K., constable, by virtue of an attachment issued by L. M., Esq., a Justice of the Peace in and for said county, in favor of the above named G. H., against N. O. : And whereas the above bounden A. B. claims the said goods as his property : JSTow the condition of this obligation is such, that if, in a suit to be brought on this bond, within three months from the date hereof, the said A. B. shall establish that he was the owner of the said goods at the time of the said seizure ; and if, in case of his failure to do so, the said A. B. shall pay the value of the said goods, with interest, then this obligation to be void, otherwise, of force. Sealed and delivered ) A. B. [l. s.J in presence of \ C. D. [l. s.I P. Q. ) E. F. [L. s.] The sureties in this bond must be approved, either by the constable, or by the Justice who issued the attachment. The form of approval given for the preceding bond will apply to this case. There can be no diflBculty in ascertaining the amount of penalty to be inserted in the bond given to prevent the re- J 20 "Wendell, 288. 14 194 ITEW-YOKK JTTSTICE. moval of goods attached. But how and in what manner, in the other case, is the officer to fix the value of the property- attached? The statute makes no provision on this subject. Although it is provided," that whenever any officer is author- ized or required by law to take or approve any sureties, he is also authorized to administer an oath to every person who is offered as such surety, to ascertain his sufficiency, yet no authority is given to the officer to administer an oath to, and examine witnesses, in order to ascertain the value of the prop- erty. Therefore, an oath administered by the officer would be nugatory, and no indictment for perjury would lie upon it; and hence that course should not be adopted. There would seem to be no other way, than for the officer to satisfy himself of the value, by advising with persons of judgment, or otherwise, as he may see fit, and then to double that value, and insert it in the bond, by way of penalty. If the sureties should then refuse to execute the bond, he may, undoubtedly, remove the property.' Notwithstanding the provision of the statute above cited, authorizing a bond to prevent the removal of goods attached, the constable may, if no such bond be tendered, take a re- c^t for the future delivery of the goods, in the same manner as under a levy by virtue of an execution. There is nothing in the statute inhibiting the use of a recevptor ; and conveni- ence and even necessity require that the practice should be sustained. When a receipt is taken, the property is still in the custody of the constable, by intendment of law ; and he is responsible for it in like manner and to the same extent, as though he had it in his actual possession.' The property is protected against other attachments, execu- tions, &c., whether it be removed by the constable, or left with a receiptor, or with the defendant on a bond for its de- livery.* Having taken the goods, the constable is required immedi- ately to make an inventory of them, and to serve a copy of the attachment and of the inventory, certified by him, on the defendant personally, if he can be found in the county. If he ' a E. 8. 652, § 9. • la Wendell, 86S. ' 1 Cowan's Tr.iatlse, 671. Md. ; 10 Johnson, ISl. mVENTOEY. 195 cannot be so found, then the constable must leave a copy of the attachment and of the inventory, certified by him, at the last place of residence of the defendant ; but if he have no place of residence in the county where the goods and chattels are attached, the copy and inventory must be left with the person in whose possession the goods and chattels are found. It is customary, especially where the articles attached are nimierous, for the constable to make his inventory of them on a separate piece of paper, and to annex a copy of such inven- tory, by a wafer, or otherwise, to the attachment. The copy of the attachment and of the inventory required to be served, may be certified by the constable thus : " Copy, A. B., Con- stable." The copy inventory, to be returned with the attachment, and the copy to be served, may be in the following form : Copy of an inventory of property, this day seized by me, by virtue of the annexed attachment, [ar, by virtue of an at- tachment of which the annexed is a copy :] One feather-bed. One clock. One bureau. One gray horse, &c. A. B., Constable. The copy of the attachment and inventory to be served should not be left at a house, or store, where the defendant has only stopped while travelling ; for it would be absurd to consider that as his last place of residence. It should be left at his usual residence.' The constable must execute the attachment, that is, he must take the goods, make the inventory, and serve the copy of the attachment and of the inventory, all at least six days be- fore the return day in the case of a long attachment, and two days in the case of a short attachment. Having executed the attachment, the constable must make a return thereof at the day named therein for that purpose, with all his proceedings thereon, in writing, subscribed by him, with a copy of the inventory of the goods attached, cer- tified by him, and with any bond which may have been exe- cuted and delivered to him pursuant to the provision of the statute before cited f and the return must, also, state specifi- M6 Johnson, 197. ' 2 E. 8. 231, § 8S. 196 NEW-TOEK JUSTICB. cally, whether the copy of the attachment and of the invento- , .Tj wt^s c^' was. not personally served upon the defendant.' "^ "^^ ■ /Tirg' return should specify the particular manner in wliich the attachment was executed. The day of attaching the goods, and of serving or leaving the copy, ought also to be specified in the return ; and a certified copy of the inventory must be annexed to the original attachment. The return should be endorsed on the original attachment. The return is, like all other acts required of a constable by law, a part of his official duty. If he makes a false return, an action will lie against him at the suit of the party injured ;" and if he does so wilfully and corruptly, he may also be in- dicted for a misdemeanor.' § 24. lieturn to AttachTnent. 'By virtue of the within attachment, I did, on the first day of January 1853, attach and take into my custody, the goods and chattels mentioned in the inventory of which a copy is hereto tamexed, and immediately made the said inventory ;* and on the same day I served a copy of the within attach- ment and of the said inventory, duly certified by me, on the defendant personally, at , in the county of [If a copy of the attachment he not personally served, follow the above to the *, and then add : And because the defend- ant could not be found in the county of > 1 1 left a copy of the within attachment, and of the said inventoiy, duly certified by me, at the last place of residence of the said de- fendant ;'(??', */" the defendant has no place of residence in the county, add after the f above: And because the said defendant had no place of residence in the said county, I left a copy of the within attachment, and of the said inven- tory, duly certified by me, with C. D., in whose possession I found the said goods and chattels. If, prior to the retv/rn, the constable has taken any bond, as before provided for, lie should add to his return the following clause : And the said goods and chattels were delivered up to , upon the execution and delivery to me of the bond hereto annexed.] A. B., Constable. January 2d, 1853. This return of the constable is, without doubt, equally con- clusive with that upon a summons, and cannot be drawn in » Laws of 1831, chop. 800, § 86. ' li > U Johnson, 4S1 ; 8 Wendell, 202. PEOOESS GENEEALLT. 197 question, except in an action for a false return, or upon in- dictment.' Su ^y'^'^-i'-^'i- ^y .J..J/ tcL-J^fif., If the attachment is issued under the non-imprisonment act, and appears by the constable's return to have been per- sonally served upon the defendant, the Justice must, on the return day, proceed to hear and determine the cause in the same manner as upon a summons returned personally served." But if, by the return, it appear that property vi^as attached, and that a copy of the inventory and attachment was not personally served, and the defendant does not appear, the plaintiif may take out a summons against him ; upon the return of which, personally served, or that " the defendant cannot be found, af- ter diligent inquiry," then, in either case, the Justice must proceed to hear and determine the cause, in the same manner as upon a summons returned personally served.' It is pre- sumed that this return of not found, should be in the words of the statute as just quoted. The statute prescribes no form for this summons, neither does it state what time may inter- vene between the date and return. In the absence of any provision on this subject, the ordinary form of summons, {ante, Form, § 6,) should be used. And it is probable that the time between its date and return should be regulated by the character of the attachment which precedes it ; if a long attachment, the summons should be made returnable in not less than six, nor more than twelve days from date ; if a short attachment, not less than two, nor more than four days from date.* 4. PROCESS GENERALLY. A constable cannot make a deputy to execute any process directed and delivered to him ; but must execute it in his own proper person." Every Justice who issues any civil process, except a venire, may, whenever he judges it expedient, on the request of a party, by written authority endorsed on such process, empower any proper person, being *f lawful age, and not a party in interest in the suit, to execute the same." Tlie person so em- J 14 Johnson, 482. * 1 Cowen'8 Treatise. 576, = Laws of 1831, chap. 800, § 87. '■ 1 E. S. 2TS, § 73. > id. § 38. ^ " id. § 271. 198 NEW rOEK JUSTICE. powered, possesses all the authority of a constable in relation to the execution of such process, and is subject to the same obligations, but cannot receive any fee or reward for his ser- vices thereon.' A constable may legally serve a summons in his own favor.' If an officer execute process in an unreasonable and op- pressive manner, with a malicious design to vex and oppress a defendant, he is liable to an action.' And if a person be brought into this State on criminal process used as a mere pretext, and then arrested in a civil action, the arrest is void.' No writ, process, or other proceeding of any Court of Jus- tice, in a civil action, can be served or executed on Sunday ; such service is void, and the party offending is subject to damages, at the suit of any person aggrieved.' And if a per- son be detained on Sunday, against his will, or on criminal process used as a mere pretext, in order to be served with civil process on Monday, the service will be void." But if a de- fendant escape from an officer, without his assent, he may be re-taken on civil process on Sunday ;' though an original ser- vice of such process on that day is void. Any person who knowingly and maliciously causes or pro- cures any process issued from a Justice's Court, in a civil suit, to be served on Saturday, upon any person whose religious faith and practice is to keep that day as a day set apart by divine command as the Sabbath of rest from labor, and dedicated to the worship of God, or serves upon any such person any such process which is made returnable on said day, or procures any suit, pending in such Court against any such person, to be adjourned to be tried on said day, is guilty of a misdemeanor, and, on conviction thereof, is subject to a fine not exceeding one hundred dollars, or imprisonment not exceeding thirty days, or both.' The process in such case Would be void ; for, when a statute inflicts a penalty for doing an act, such act is unlawful, though it be not in terms prohibit- ed or declared to be illegal.' ^'^r--<^ '^•'^^■' ^^"^; . « : J t « E. 8. 878, % 878. dell, B9. » a Cowein, 486 ; 8 Wendell, 802. • 10 id. 6S6. » S Johnson, 12B. ' 7 Johnson, 155. « 10 Wendell, 686. ' Laws of 1847, ohay. 849. » 1 E. S. 675, § 39; 8 Johnson, 857; IS Wen- • 8 Denio, 226. ';) '^^ 1 ■ J r-, ^ ^ jl PROCESS GENEEALLT. 199 Whenever an election or town meeting is held in any city or town, no civil process, or proceeding in the nature of a civil process, can be served on any elector entitled to vote in such city or town, on the day of such election or town meet- ing.' A Justice may amend clerical mistakes, by filling up blanks in process issued by himself, after its return ;" as, by altering the date and return of a summons after it has been served." A constable is protected in the execution of process, if it appears regular on its face. If it shows on its face that the Court has jurisdiction of the subject matter, and nothing ap- pears on it to apprize the officer that the Court has not juris- diction also of the person of the party to be affected by the process, he will be protected in executing it, even though it is issued by a Court which in fact has not jurisdiction in the case.' Every officer serving process must, upon the request of the party served, and without charging or receiving any compen- sation therefor, deliver to such party a copy thereof.' Every officer, to whom any process is delivered, must exe- cute the same according to the command thereof, and must make due return of his proceedings thereon, which return must be signed by him. For any violation of this provision, such officer is liable to an action at the suit of any party ag- grieved, for the damages sustained by him, in addition to any other fine, punishment, or proceeding, which may be author- ized by law.° Whenever a public officer, authorized to execute any pro- cess delivered to him, finds or has reason to apprehend, that resistance will be made to the execution of such process, he is authorized to command every male inhabitant of his county, or as many as he shall think proper, and with such arms as he shall direct, and any military company or companies in said county, armed and equipped, to assist him in overcoming such resistance, and, if necessary, in seizing, arresting, and > Laws of 1842, chap. 130, title 1, § 4; 1 E. S. < 5 ■Wendell, ITO; 6 Hill, 811. S42, § 10. '2 E. 8. 440, § 76. > 14 Wendell, 230. " id. § 77. • 4 Denlo, 49S. 200 mSW-TOKK JUSTICE. confining the resisters, their aiders and abettors, to be dealt with according to law.' Every person so commanded by an officer to assist him in the execution of process, who refuses, or, without lawful cause, neglects to obey such command, is guilty of a misdemeanor, and subject to fine and imprison- ment." CHAPTER YIII. OF THE APPEARANCE OF PARTIES. EvEET defendant in an action before a Justice, except in- fants, and corporations aggregate, may appear and defend the same in person ; ^ and the latter may appear by attorney, but the former cannot. It is irregular for an infant defendant to appear by attorney ; ' he must appear by guardian.' After the service and return of process against an infant de- fendant, the suit cannot be any further prosecuted, until a guardian for such defendant be appointed." Such guardian may be appointed by the Justice before whom the action is prosecuted, or by a county judge.' The guardian for an in- fant defendant must be appointed upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the ap- plication of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this State ; if he has none, then to the infant ' 2 E. S. 441, § 80; Laws of 1846, chop. 69, * 2 Johnson, 192. la ' 8 id. 418. 5 2 R. S. 441, § 82. "2 E. S. 282, § 42. » id. 282, § 41. ' Code, § 115. GUAEDIAIT FOE UWAITT DEFENDANT. 201 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 such infant resides.' Such application may be verbal or in writing. The person appointed must be a suitable per- son, having no possible interest in the controversy adverse to that of the infant, and must consent in writing to be such guardian," which consent must be filed with the Justice.' The guardian for the defendant is not liable for any costs in the action.* It was formerly provided by the Eevised Statutes, that on the request of an infant defendant, the Justice should appoint some person who would consent thereto in writing, to be the guardian of the defendant in the defence of the suit ; and that, if the defendant should not appear on the return day of the process, or should neglect or refuse to nominate such guardi- an, the Justice might, on the motion of the plaintiff, appoint any discreet person as such guardian.^ Under these provis- ions, unless the infant defendant appeared on the return day of the process, the plaintiff could procure from the Justice an appointment of a guardian for the infant on the same day the process was returned served, and the action could immediate- ly progress. ISTow, however, as the provisions of the Code in regard to appointing guardians are made applicable to Justices' Courts," an infant defendant of the age of fourteen years, has twenty days after the service of the summons, in which to ap- ply for the appointment of a guardian ; and, as the guardian must be appointed on his application, if he applies within that time, and- the provision forbidding the further prosecution of the suit, after the service and return of process against an in- fant defendant, until a guardian for him is appointed, is still in force, the effect of the change introduced by the Code is, that a plaintiff cannot procure from the Justice an appoint- ment of a guardian for an infant defendant of the age of four- teen years, until after the expiration of twenty days from the service of the summons, and then only on giving the notice required by the Code, until wliich time no further proceeding 1 Code, § 116. ' id. » 2 R. 8. 232, § 42. ' « id. 233, § 42. » id. § 48. » Code, §§ 8, C4 202 NEW-YOEK JTJSTIC3E. can be had in the suit. If the infant defendant is under the age of fourteen years, the plaintiif may proceed to procure an appointment of a guardian from the Justice immediately on the return of process served, subject to the provision as to notice. ' . / / § 25. Consent to he Gucurdiomfor Infant Defendmit. In Justices' Court, Andrew Shuman, ) against > Before Horace T. Cook, Justice. Chilion Beach. ) Cayuga County, ss : At the request of the defendant, who is under twenty-one years of age, I hereby consent to act as his guardian, to defend this sidt. James Ktdd. The Justice or county judge should endorse the appoint- ment of the guardian upon the consent before it is filed, as follows : The said James Kidd is accordingly appointed guardian. HoEACB T. Cook, Justice of the Peace. A corporation must appear by an attorney, and his appoint- ment need not be under seal. Idiots and lunatics must sue and be sued in their own names, but the Court will permit some proper person to assist in managing the prosecution or defence. A lunatic must appear by guardian if he be under age, and by attorney if he be of full age, and the Court will ap- point a guardian or attorney, on motion.' A party authorized to appear in a Justice's Court by attor- ney, may appoint any person to act as such attorney ; but the constable who served either the original or jury process in the action, cannot appear and advocate for either party at the trial, but may act as attorney in any other stage or proceed- ing in the action." But when the suit is commenced by war- rant, the defendant must appear in person, and no proceed- ings can be had against him till he does so appear.' If a constable, acting as attorney, merely proves the note declared on, it is a violation of the statute, although at the 1 1 Oowon'8 Treatise, 800; 18 Johnson, 184 * 2 E. S. 282, § 41. » 2 E. S. 288, § 44; 9 Johnson, 864. ■WATTING ONE HOITE. 203 time there was no appearance by the defendant, or by any- one in his behalf.' ^ ^>^-^W '.: ■ ■),, ,, . /, / /,i '-*■'-' r '^ - The authority to appear by attorney' may be either written or verbal, and must, in all cases, be proved, either by the at- torney himself, or by other competent testimony, unless ad- mitted by the opposite party ; and the Justice must not per- mit any person to appear for another without such proof or admission." Any written authority to appear by attorney in a Justice's Court, may be acknowledged before any County Judge, Justice of the Peace, or Commissioner of Deeds, and such authority, purporting to have been so acknowledged, is made prima facie evidence of such authority in any Justice's Court in the State.' A verbal authority to appear in a cause is not sufficient to enable the attorney to release the interest of a witness.* A Justice cannot act upon information which he has received out of court in relation to the appointment of an attorney, even though the information come from the par- ty for whom the attorney appears.' TJjJMi the retur^tt of a summons personally served, or on the return of an attachment duly served, the Justice must wait one hour after the time specified for the return of such process, unless the parties sooner appear." If the plaintiff fail to appear within such hour, or within one hour after any time to which the action may have been adjourned, judg- ment of nonsuit, with costs, must be rendered against him.'' A non-appearance for the plaintiff is a discontinuance of the cause, and, if the Justice proceed, it is error.' As a general rule, a Justice should wait one hour for the appearance of parties, and no longer, unless a reasonable ex- cuse is shown for farther indulgence. Many circumstances may exist, rendering it necessary for the Justice to delay call- ing the cause until after the expiration of the hour, such as his being engaged in other official duties, and the like.' K no reasonable excuse exists or appears, the cause should be > 11 Wendell, T3. » 2 Cowen, 429 ; S Hill, 428. "2^8. 238, § 45 ; 1 Cowen, 113, 256 ; 2 Id, •2 E. 8. 288, S 46. 421 ; 15 Wendell, 652. ' id. 246, § 119. » L«ws of 1881, chap. 281, § 1. « 9 Johnson, 140. ' 11 Johnson, 464. » 20 Id. 309 ; 9 Barbour, «0. 204 NEW-yOEK JUSTICE. called within the time designated by the statute, and a refu- sal to call it would be error.' The statute is not, however, peremptory ; for if the Justice is engaged in trying another cause which occupies him until after the hour expires, that is a good reason for the delay, and no rights are lost to either party. The Justice should then proceed, as soon as possible, after his other oiEcial engagements are disposed of.' Where a defendant wilfully abandons his defence, when he knows the cause is about to be called, on the ground of the omission of the plaintiff to appear until between one and two minutes after the hour expires, the Justice is right in proceed- ing with the cause.' But where the Justice required the de- fendant to wait five minutes after the hour elapsed, which he refused to do, and the plaintiif appeared within the five minutes, but after the defendant had left, and the Justice pro- ceeded with the cause, it was held to be erroneous.* If, how- ever, the plaintiff had appeared before the defendant left, or if he had been in sight and approaching, and the Justice had told the defendant that he was about to call the cause, the defendant would then have gone away at his peril. ° The question as to what are the rights of a defendant who omits to appear when he ought to, has been the subject of many decisions. But it was thoroughly examined by Mr. Justice Nelson, in the case of Plcl:ert v. Dexter," who re- viewed the former decisions. The rule there established is, that it is proper to permit a defendant to plead, if he appears on the return day of a summons, before the cause is adjo^irn- ed, or even after adjournment, if the plaintiff is still present in court ; that if the plaintiff proceeds to a hearing of his cause on the return day of the summons, the same privilege ouglit to be granted to the defendant, if he appears before the plain- tiff has closed his case ; that where issue has been joined, and the cause adjourned for trial to a particular day, the defend- ant ought to be permitted to enter upon his defence, if heap- pears by the time the plaintiff has closed his proofs ; but that if the defendant does not appear on the return of the sum- mons, and join issue, and the cause is adjourned for trial to a ' 11 Wendell, 51. * 4 Denio, m ■ 3 10 Id. 102. » id. ■ 1 - » 11 id. 61. ° 12 Wendell, 100. PEOOEEDINGS ON EETTTEN OF WAUEAJSTT. 205 future day, he is not entitled, on the adjourned day, to plead and enter upon his defence. After waiting one hour, if the plaintiff appears, but the defendant does not, the Justice may proceed to hear the cause on the part of the plaintiff, but the plaintiff cannot recover without proving his demand in the same manner as if the defendant had appeared and denied it.' The failure of the Justice to appear on the return or ad- journed day, operates as a discontinuance of the suit, but the parties may confer jurisdiction by consent, and proceed to trial then or on an adiourned day.' aHh-t^ "7 ^*- A^Jh' Where a warrant has been served on a defendant and re- turned, no further proceedings can be had against him until he has personally appeared in court.' When he has been brought before the Justice, he must be detained in the custody of the constable, until the Justice shall direct his release ; but he can in no case be detained longer than twelve hours from the time he is brought before the Justice, unless within that time the trial of the cause is commenced, or unless it is delayed at the instance of the defendant.* The constable has, howev- er, a right to detain the defendant, while making a bona fide effort to find a magistrate to hear the cause.' If, on the return of a warrant, the Justice be absent, or una- ble to hear or try the cause, or it be made to appear to the Justice, by the affidavit of the defendant, that the Justice is a material witness in the cause, the constable must take the defendant before the next Justice of the city or town, who must proceed in the cause, as if the warrant had been is- sued by him." A Justice ^^otie a^witness in an action tried before himself ;'^or can ne acf upon facts within his own knowl- edge, as evidence in the. action.' If, therefore, the defendant desires to avail himself of the tes- 1 Code, § 64 subd. 8; 1 Code Eeporter, 120, » 10 Wendell. 614. 23 ; 10 Johnson, 106. • 2 E, 8. 229, §J21. 2 1 Cowen, 246. / / '1 Johnson, 520. ' » 2 R. 8. 232, § 41. 8 8 Denlo, 12. « id. 229, § 25. 206 NEW-TOEK JUSTICE, timony of the Justice, he must, previous to joining issue in any action, (except where he has heen arrested by warrant,) make affidavit that the Justice before whom the action is pending, is a material witness for him, without whose testi- mony he cannot safely proceed to trial, and must set forth therein the particular facts and circumstances which he ex- pects to prove by the Justice. It is then the duty of the Justice to enter judgment of discontinuance, if he is satisfied that he is a material witness for the defendant, and that with- out his testimony the defendant cannot safely proceed to trial, and not ofhWwise, but without costs against either party.' Formerly, a judgment of discOTitinuanc'e* might be obfalb'^d on an affidavit stating merely that the Justice was a material witness for the defendant, without whose testimony he could not safely proceed to trial ; and in such case, the Justice was bound to enter judgment of discontinuance. But now, in ad- dition to this, the statute provides, that the defendant must set forth the pa/rticular facts and circumstances which he ex- pects to prove iy the Justice; and even then, the Justice has a discretionary power, for he is bound to enter judgment of discontinuance only when he is satisfied that he is a material witness for the defendant, and that, without his testimony, the defendant cannot safely proceed to trial. He has the right to judge of the sufficiency of the affidavit, and must be satisfied, acting judicially, that the ends of justice require a discontinu- ance of the action." When the affidavit is sufficient, the Justice cannot refuse the discontinuance on the ground that he does not recollect the facts which the defendant expects to prove by him.° The defendant must state enough to show that the Justice is a necessa/ry, as well as a material witness.' If, therefore, the facts which the defendant expects to prove by the Justice can be as well and as conveniently established by other wit- nesses, the Justice may properly refuse a discontinuance. Where the defendant made affidavit that the Justice was a material witness, and moved for a nonsuit, and the plaintiff offered that the statement of the Justice might be received as ' Laws of 1889, chap. 243, S 1. '24 Wendell, 264. « 8 HUl, 82. • 8 Hll], 82, PLEADINGS. 207 legal evidence, to whicli the defendant refused to accede, and the Justice nonsuited the plaintiff, with costs, the judgment was reversed.' A Justice, before whom a cause is pending, is bound, on the defendant's request, to swear him to an affidavit prepared for the purpose of procuring the cause to be discontinued on the ground of the Justice being a material witness for the de- fendant ; and his refusal to do so is a misdemeanor, whether the affidavit, as drawn, is sufficient or not." The plaintiff should, if he finds the Justice is a material witness for him, discontinue his suit. If the suit is commenced by wa/rrcmt, and, on the return thereof, it be made to appear to the Justice, by the affidavit of the defendant, that the Justice is a material witness in the action, the constable must take the defendant before the next Justice of the city or town, who is required to take cognizance of the cause, and proceed thereon as if the warrant had been issued by him.^ CHAPTER IX. OF PLEADINGS. At the time of the first appearance of the parties before the Justice, either upon the return of process, or their voluntary appearance to join issue, the pleadings of the parties must be made, and the issue joined; and when both parties have ap- peared on the return of process, an issue must be joined be- fore any adjournment can be had, except when the defendant refuses or neglects to plead.* 1 1 Cowen, 84. > 2 E. S. 229, § 21. • 1 Denio, 48T. * id. 233, § 47 j LnwB of 1846, chop. M, 208 NEW-TOEK JTISTICB. The Court may, at tlie joining of issue, require either party, at the request of the other, at that or some other specified time, to exhibit his account on demand, or state the nature thereof as far forth as may be in his power, and, in case of his de- fault, preclude him from giving evidence of such parts there- of as shall not have been so exhibited or stated.' 1. PLEADING GENERALLY. The object of pleadings is to apprize the parties, in clear and intelligible language, of the cause of the complaint, and the ground upon which the defendant rests his defence ; and it is the purpose of the Code to avoid unnecessary technicality in pleading, and to enable a person of common understanding to conduct the trial of his own cause before a Justice. The pleadings in a Justice's Court are a complaint, an an- swer, and a demurrer." The pleadings may be oral or in writing ; if oral, the substance of them must be entered by the Justice in his docket ; if in writing, they must be filed by him, and a reference to them must be made in the docket.^ They are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended.^ Under the provision of the Code which requires the Justice to enter in his docket the substance of oral pleadings, he need not enter every immaterial allega- tion of the parties, but he must enter such material state- ments as are necessary to constitute a cause of action or ground of defence. In an action or defence foimded upon an accounat, or an instrument for the payment of money only, it is sufficient for a party to deliver the account or instrument to the Court, and to state, that there is due to him thereon, from the adverse party, a specified sum, wliich ,he claims to recover or set off.' ' In an action by or against any corporation Ibi'Sated by or under any law of this State, it is not necessary to recite the act or acts of incorporation, or the proceedings by which such corporation was created, or to set forth the substance thereof, ' Code, § 64, subd. H < Id. subd. 6. ' id. subds. 1,6. » Id. subd. 9. » d. Bubd. 2. PLEADING GENERALLY. 209 but the same may be pleaded by reciting the title of sucli act, and the date of its passage." The following provisions of the Code, though not in terms made applicable to Justices' Courts, seem nevertheless, at least some of them, to be applicable from reason and neces- sity, and have, at least some of them, been so judicially construed : In the construction of a pleading, for the purpose of deter- mining its effect, its allegations are to be liberally construed, with a view to substantial justice between the parties.^ If irrelevant or redundant matter be inserted in a pleading, it may be stricken out, on motion of any person aggrieved thereby." In pleading a judgment, or other determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction, but such judgment or deter- mination may be stated to have been duly given or made. If such allegation be controverted, the party pleading is bound to establish on the trial, the facts conferring jurisdiction." Formerly, in pleading any where a judgment of a Justice's Court, and whether it was set up by the plaintiff or the de- fendant, it was necessary to aver that the Court had jurisdic- tion both of the subject matter, and of the persons of the parties ; and an averment of jurisdiction was not sufficient, without stating the facts on which it depended.' This rule is of course changed, as to pleading in Courts of Kecord, by the section of the Code just cited, but that section not being made applicable to Justices' Courts, it remains to be decided whether the change in the mode of pleading applies to those Courts.' In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance ; but it may be stated generally, that the party duly performed all the conditions on his part ; and if such allegation be controverted, the party pleading is bound to establish on the trial, the facts showing such performance.' ' 2 E. S. 459, § 13. ' 9 Oowen, 26 ; 12 Wendell, 4T8 ; 7 HiU, 85 ; 2 Code, § 159. 8 Comstock, 193. 3 id. § 160. ' See ante, p. 19. Md. §161. 'Code, §162. 15 210 NEW-TOEK JUSTICE. In pleading a private statute, or a riglit derived therefrom, it is sufficient to refer to such statute by its title and the day of its passage, and the Court must thereupon take judicial notice thereof.' 2. COMPLAINT. The complaint must state, in a plain and direct manner, , the facts constituting the cause of action ; " that is, every fact on which the right of action depends.' If in writing, it should contain the title of the action, the name of the Justice before whom the action is to be tried, the names of the parties, a demand of the relief sought, and, if the action is for the recovery of money, the amount claimed. Both time and place should be stated with reasonable certainty in the complaint. The plaintiif may unite in the same complaint several causes of action, whether they be such as have been hereto- fore denominated legal or equitable, or both, where they all arise out of, 1. The same transaction or transactions connected with the same subject of action; 2. Contract, express or implied; or 3. Injuries with or without force, to person and property, or either; or 4. Injuries to character; or 5. Claims to recover real property, with or without dama- ges for the withholding thereof, and the rents and profits of the same ; or 6. Claims to recover personal property, with or without damages for the withholding thereof; or 7. Claims against a trustee, by virtue of a contract, or by operation of law. But the causes i if action, so united, must all belong to one of these classes, and must afiect all the parties to the action, ];d not require different places of trial, and must be sep- arately stated.'' It is necessary not onl}' that the causes of action united ' > Code, § 168. = 4 Sandford, 6C5. = id. § 64, subd. 8. * Code, § 167. COMPLAINT. 211 should all of them belong to some one of these classes, and should all of them affect all the parties to the action, and not reqiiire different places of trial, and be separately stated, but that they should all arise out of the same transaction, or out of transactions connected with the same subject of action. Two defendants cannot be sued in the same action upon sep- arate contracts made by each. If an action be brought to recover any money, goods or other thing received by any person contrary to the provisions of any statute, or for the conversion of any goods or other thing received contrary to the provisions of any statute, the plaintiff must set forth in his complaint that such money, goods, or other thing was received, or that such goods or other things were converted, by the defendant, contrary to the pro- visions of such statute, referring to the same and naming the subject matter thereof in the following form : " according to the provisions of the statute regulating the rate of interest on money," or, " according to the provisions of the statute against betting and gaming," as the case may require, or in some other general terms referring to such statute.' If the complaint does not conform to the statute, an objection made on that ground at the trial will be fatal to a recovery.'' § 26. Convplaint in cm Action arising on Contract. In Justice's Court, ^- .^•, I Before C. C. Esq. against )■ r\ i ■ j. ^ -p, I Complaint. A. B., plaintiff, complains that C. D., defendant, owes and is indebted to him in the sum of one hundred dollars, for goods, wares and merchandise, sold and delivered to [or, for work and labor perfoipned for] the defendant, on the day of ) 18 , \or, at various times between the day of ,18 , and the day of ,18 ,] where- fore the plaintiff demands judgment against the defendant for the one hundred dollars ; [cidcl here, with interest thereon from the day of , 18 , */' necessary.'] A. B., Plaintiff. ' 2 E. S. 861, 853, §§ 1 to 3. s 2 Comstook, 182. - 212 NEW-TOEK JtrSTICE. § 27. Complaint for Injv/ring Personal Properly. In Justice's Court, taR'st \ ^®^°^® 9- ^■' ^^1- u -r\ I Complaint. A. B., plaintiff, complains that C. D., defendant, carelessly and violently ran against the carriage of the plaintiff, with the team and wagon of the defendant, on the day of , 18 , and broke and damaged the said carriage to the amount of twenty -iive dollars; wherefore the plaintiff demands judgment against the defendant for the twenty-five dollars. A. B., Plaintiff. §28. Complamt for Preach of Wa/rranty. In Justice's Court, ^- .^- ) Before C. C, Esq. ^2^5^* [complaint. A. B., plaintiff, complains that C. D., defendant, sold a horse to the plaintiff, on the day of , 18 , lor the sum of dollars, and warranted the same to be per- fectly sound, kind, and true, but the said horse is blind of the right eye, is vicious and unruly, and not true in the harness, whereby the said horse is injured to the amount of fifty dol- lars; wherefore the plaintiff demands judgment against the defendant for the fifty dollars. A. B., Plaintiff". § 29. Complaint for Fraud or Deceit. In Justice's Court, ^- .^- ) Before C. C, Esq. ag^mst [complaint. ^ A. B., plaintiff, complains that C. D., defendant, sold a horse to the plaintiff on the day of , 18 , for the sum of dollars, which said horse, to the knowl- edge of the defendant, was diseased of the heaves at the time of the sale, but the defendant did not inform the plaintiff' thereof; whereby the said horse is injured to the amount of fifty dollars, and the plaintiff demands judgment against the defendant for the same. A. B., Plaintiff". § 30. Complaint for tJie Conversion of Personal Property , In Justice's Court, ^- ^\ 1 Before C. C, Esq. a^mnst [ Oo^^pi^i^t. ^ A. B., plaintiff, complains that on or about the day DEMUEEEE. 213 of , 18 , he was possessed, as of his own property, of a certain gold watch, of the value of one hundred dollars, which afterwards, and on or about the day of , 18 , came into the hands and possession of C. D., the de- fendant, who sold the same and converted the proceeds to his own use ; wherefore the plaintiff demands judgment against the defendant for the one hundred dollars. A. B., Plaintiff. § 31. Complaint for Injury to Real Property. In Justice's Court, ^- .^- I Before C. C, Esq. a^a^nst J Complaint. A. B., plaintiff, complains that on or about the day of , 18 , C. D., the defendant, \or, the horses and cattle of C. D., the defendant,] broke and entered the close of the plaintiff, at , in the county of , and trod down and destroyed the grass and products of the soil there growing ; whereby the plaintiff has sustained damage to the amount of fifty dollars, and he demands judgment against the defendant for the same. A. B., Plaintiff. •) § 32. Comjplcdnt }>y am, Assignee. In Justice's Court, ^- ^\ \ Before C. C, Esq. against V ^ i • ^ A -p, I Complaint. A. B. plaintiff, complains that C. D., defendant, was in- debted to G. H., on the day of ,18 , in the sum of one hundred dollars, for medical services rendered to the said defendant previous to that day, which said indebt- edness has been duly assigned to the plaintiff; wherefore the plaintiff demands judgment against the defendant for the one hundred dollars. A. B., Plaintiff. 3. DEMURRER. Either party may demur to a pleading of his adversary, or any part thereof, when it is not sufiiciently explicit to enable him to understand it, or it contains no cause of action or de- fence, although it be taken as true.' At the time of appearing to join issue, after the plaintiff has presented his complaint, the defendant, if he wishes to 1 Code, 5 64, Bubd 6. -14 NEW-TOEK JUSTICE. demur to it, must do so before he answers it ; and the plain- tiff may demur to the answer after it is made. Objections in the nature of a demurrer must be raised by the pleadings, or they cannot be taken advantage of on appeal.' If the Court deems the objection taken by the demurrer to be well-founded, it must order the pleading to be amended, and, if the party refuses to amend, the defective pleading must be disregarded.^ Therefore, if the defendant demurs to the com- plaint, and the Justice sustains the demurrer, and the plain- tiff refuses to amend, this will operate as a discontinuance of the action, and judgment of nonsuit must be rendered against the plaintiff, with costs. ^ So, too, if, after demurrer, the de- fendant refuses to amend his answer, the Justice must pro- ceed with the cause as though the defendant had not appeared. If, on demurrer to a complaint, the Court thinks that the objection taken by the demurrer is not well-founded, and overrules the demurrer, it should generally allow the defend- ant to withdraw the demurrer, and give him liberty to answer if he wishes to do so. Still, that is a question resting in some manner in the discretion of the Justice. If, howe"^'er, that discretion is abused, or is not exercised soundly, the Court above will correct the error.' If, on demurrer to an answer, the Court overrules the de- mun-er, the answer will stand, and the parties must go to trial on the issue thus joined. "We have seen that a party may demur to a part only of the pleading of his adversary. In case of such a demurrer, there will be an issue of law, and one also of fact. The issue of law on the demurrer should be decided before the issue of fact. § 33. DemuiTer to Complaint. In Justice's Court, Charles Green ) t> ^ tt mi t • against [ ^ '''''' "'^'"'^ ^''y^°'' '^'''*'''^- James Avery, [^^"^^^^^i-- James Avery, defendant in this action, says, that the plain- tiff's complaint is insufficient in law to maintain his action, ' 8 Code Eeporter, 186.' , ' 2 E. 8. 24(5, § 119. s Code, § 64, subd. 7. , ' « 10 WendoU, 870. AIT8WEE. 215 and assigns tlie following reason — ^tliat it appears on the faco of the complaint, that the contract set forth is illegal and void, it being a wager on the result of an election ; [or, that the con- tract is one to answer for the debt of a third person, and is not in writing, and is therefore void ; or, that the complaint is not sufficiently explicit to enable the defendant to understand it, and he is unable to determine whether the complaint is for a trespass upon the plaintiff's land or upon his personal property ; oi-, that the promissory note upon which the com- plaint is founded is not yet due.] James Aveet. § 34. Demwrrer to Answer. In Justice's Court, Charles Green ] -r, e -rr mi t .- against \ ^^^<^^^ ^^""'^ ^^y^°^'' J^^*^^^" James Avery. j^^°^;^"f'"- Charles Green, plaintiif in this action, says, that the de- fendant's answer is insufficient in law to maintain his defence, for the following reason — that it appears from the answer that the demand which the defendant claims to set off did not exist at the time of the commencement of the action, and did not then belong to the defendant. Chaeles Geeen. 4. ANSWER. Formerly, the most usual plea in a Justice's Court was that of the general issue, with a notice of matter to be of- fered in evidence under that plea. For instance, it was suf- ficient for the defendant to say, " I plead the general issue, and give notice of set-off." An answer cannot now be made in that form, for it must .contain a denial of the complaint, or of some part thereof, and also notice, in a plain and direct manner, of any facts constituting a defence.' The answer should contain the title of the cause, the name of the Justice before whom the action is to be tried, the names of the parties, a denial of the complaint, or of some part thereof, and a statement of the facts constituting the defence. In an action to recover the possession of property distrain- ed doing damage, an answer that the defendant, or person by whose command he acted, was lawfully possessed of the real property upon which the distress was made, ''Code, §64,suba.4./ 7 ' '- ' • 216 NEW-TOEK JUSTICE. and that the property distrained was at the time doing dam- age thereon, is good, without setting forth the title to such real property.' In a suit or proceeding by or against any corporation, a mistake in the naming of such corporation must be set up in the answer. Otherwise, it will be deemed to have been waived." By section 144 of the Code, the defendant in a Court of Eecord may demur to the complaint, when it shall appear on the face thereof, either : 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action ; or, 2. That the plaintiff has not legal capacity to sue ; or, 3. That there is another action pending between the same parties for the same cause ; or, 4. That there is a defect of parties, plain- tiff or defendant ; or, 5. That several causes of action have been improperly united. In Justices' Courts, parties are al- lowed to demur to a pleading, or some part thereof, only when it is not sufficiently explicit to enable the party to understand it, or when it contains no cause of action or defence, although it be taken as true. It seems, therefore, that if either of the objections named in the above five subdivisions exists in a complaint in a Justice's Court, the defendant must take ad- vantage of it by answer. /"' " ■ ^'' It is provided by statute, that in suits against any public officer,' the omission to name any other officer in the process or complaint, may be set up in the answer, and if not so set up, such omission shall be deemed to have been waived, and shall not be objected in any other stage of the proceedings." § 35. Answer. In Justice's Court, ^- .■^•, \ Before C. C, Esq. Tr (Answer. C. D., the defendant, answers to the complaint, that on the day of , 18 , he paid the indebtedness mentioned m the complaint ; [or, that the plaintiff did not perform the work and labor for the defendant, mentioned in 1 Code, § 166. » Ante, p. 162. a 2 E. 8. 459, § 14. » 2 E. S. 4T4, § 90. AITSWEE. 217 the complaint ; or, that he did not warrant the horse men- tioned in the complaint, to be perfectly sound, kind and true.] C. D., Defendant. § 36. Answer, toith Notice. In Justice's Court, ^•.^•, ) Before C. C, Esq. CD., the defendant, answers to the complaint, that he did not • take and does not detain the property, [or, did not break and enter the close,] mentioned in the complaint, as is therein stated ; and he gives notice that he will prove on the trial of this action, that the property mentioned in the complaint was taken, and is detained by him, with the consent and permis- sion of the plaintiff ; [or, that he broke and entered the close mentioned in the complaint, in order to remove a quantity of wheat levied on by him as a constable of the county of , by virtue of an execution against the plaintiff, issued by 0. C, Esquire, Justice of the Peace of said county, in favor of G. H., and dated on the day of ,18 .] C D., Defendant. ISTo reply to an answer is required or permitted in a Jus- tice's Court, whether the answer sets up new matter or not.' Therefore, when new matter is set up in an answer, it must be considered as controverted by the plaintiff, and he must be allowed to give evidence on the trial to deny or avoid it. Nor does the failure of the defendant to answer the whole or even a part of the complaint in a Justice's Court, authorize the Justice to take any part of the complaint to be true with- out proof. Because, the Code provides, (§ 64, subd. 8,) that in case a defendant does not appear and answer, the plaintiff cannot recover without proving his case. Hence, if the de- fendant appears, but fails to answer at all, the plaintiff must still prove his case. And if the defendant answers but a part of the complaint, the rest cannot be taken as admitted, but must be proved. Eor, the 168th section of the Code, which provides that in Courts of Eecord every material allegation of the complaint, not controverted by the answer, and every material allegation of new matter in the answer, not contro- verted by the reply, shall, for the purposes of the action, be » 4 Howard's Prac. Eep. 44 ; 6 id. 185, 218 NEW-TOEK JUSTICE. taken as true, is not applicable to Justices' Courts.' The for- mer decisions to the contrary" were made under the Code of 1848, which was different in this respect f^om the present ,,^ Codes, and have been overruled. ' "--' ' ^' " ' 5. AMENDMENTS. The pleadings may be amended at any time before the trial, or during the trial, or upon appeal, when by such amendment substantial justice will be promoted. If the amendment be made after the joining of issue, and it be made to appear to the satisfaction of the Court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment must be granted. The Court may also, in its discretion, require, as a condition of an amend- ment, the payment of costs to the adverse party ; that is, the costs of the action, up to the time of the amendment.' Justices' Courts possess the same powers as to amendments as Courts of Kecord, and are required to allow amendments liberally in all cases wTiere the rights and interests of the ad- verse party will not thereby be jeoparded ;* especially, if facts material to the case have come to the knowledge of a party, since the joining of issue. ° In analogy to the powers of amendment vested in Courts of Kecord, Justices' Courts have undoubtedly the power, in fur- therance of justice, to amend any pleading, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a raistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or de- fence, by conforming the pleading to the facts proved.' When the plaintiff is ignorant of the name of a defendant, such defendant may be designated in any pleading, by any name ; and, when his true name is discovered, the pleading may be amended accordingly.' The court should, in every stage of an action, disregard any error or defect in the pleadings or proceedings, Avliich does 1 6 Howard's Prac. Eep. 183. " Code, § irr. " 2 Code Keporter, 148; 8 id. 16. « id. § ITS. ' 8Code,§64, eubd.ll. ' id. § 175. « 1 Barbour, 552. PLEA TO THE JTmiSDICTION. 219 not affect the substantial rights of the adverse party ; and no judgment can be reversed or aifected by reason of such error or defect.' , '* It will be proper now to notice some of the matters that are most usually set up in the defence of an action, and must be specified in the answer in order to be of any avail. 6. PLEA TO THE JURISDICTION. Where a Justice has no jurisdiction of the cause of action upon which the suit is founded, it is sufiicient to aver gener- ally in the answer, that the cause of action is not within his jurisdiction. But where the objection is founded upon the privilege of the defendant's person, the want of proper process or a proper return, or any other circumstance not relating to the subject matter of the suit, the facts must be specially stated in the answer ; and if a party proceeds to an issue, and a trial upon the merits, he waives a plea to the jurisdiction over his person.^ So, too, if a party appears before a Justice on the return of void process, joins issue, and goes to trial, he waives all objection, and the Justice has jurisdiction.' A defendant arrested upon a Justice's warrant while attend- ing Court as a suitor or witness, must plead his privilege, or move his discharge, before pleading in bar to the action ; for a plea in bar admits that he is properly in Court.* It is proper to insert here the following provisions of the statute, although they do not strictly touch the jurisdiction of the Justice : ISTo Justice of the Peace or constable shall, directly or indi- rectly, buy, or be interested in buying, any bond, note or oth- er demand, or cause of action, for the purpose of commencing any suit thereon before a Justice, nor shall any Justice or con- stable, either before or after suit brought, lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money, or other valuable thing, to any person, in consid- eration of, or as a reward for, or inducement to, the placing or having placed in the hands of such Justice or constable, any ■ Code, § 1T6. = 2 id. 65r; 1 Sandl'ord, 19. // /3^'<-^ S^ = 5 Hill, US. i 6 Hill. 842. 7 220 NEW-TOEK JUSTIOE. debt, demand or cause of action whatever, for prosecution or collection. ' Every Justice or constable offending against this provision shall be deemed guilty of a misdemeanor, and, on conviction, sball be subject to fine or imprisonment, or botb, in the dis- cretion of the Court. Every such conviction shall operate as a forfeiture of the of&ce of the Justice or constable, so con- victed." The defendant in any suit to be brought in any action of debt, covenant or assumpsit, may give notice with his plea, in addition to any other matter of defence, that, on the trial of the cause, he will insist and prove, that the demand on which such action is founded, has been bought and sold, or received, for prosecution, contrary to law, without setting forth any other particulars.' The defendant in any such suit, may serve a notice on the plaintiff two days before the trial, requiring him to appear personally OJi such trial, to be examined ; and it shall be the duty of the plaintiff to attend such trial, for that purpose ; and in case of such attendance, he shall be entitled to the like fees as are allowed by law to witnesses ; but the plaintiff shall not be so summoned, nor required to attend the trial, to give evidence as aforesaid, except from the same county, or the county next adjoining that in which the cause is tried.* In case such plaintiff shall not attend such trial, he shall, on proof of the due service of such notice, be nonsuited in such action, unless such failure to attend shall be accounted for to the satisfaction of the Court ; in which case the Com't may postpone the trial, on the plaintiff's paying the costs of preparing for the trial. And if such plaintiff shall not attend at the time to which the trial shall be postponed, he shall be nonsuited.' On the trial of the cause in which such notice shall have been given, if the defendant shall require it, the plaintiff and his attorney, and any other person who may be interested in the reco-v ery in such cause, shall be examined on oath, touch- ing the matters set forth in such notice." ' 1 2 E. 8. 267, § 235. * id. § 233. i! Id § 286. » Id. § 239. s id. § 23r. « id. § 240. FOEMEE ACTION. 221 If any such plaintiff, so required to be examined, or if any person interested in the recovery of the suit, shall refuse to answer on oath such questions as shall be pertinent to show a violation of the provisions of this article, or if, on such exami- nation, it shall appear that the cause of action on which such suit is founded has been brought vt procured contrary to ths true intent of the foregoing provisions, the plaintiff in such action shall be nonsuited.' Wo evidence derived from the examination of any such plaintiff or other person shall be admitted in proof, on any criminal prosecution against the party so examined, for vio- lating any of the foregoing provisions." • , / . , ^j .'?• FORMER ACTION. ' ' ^^ c- / A former trial and judgment niiist be set up in the answer, as the Code requires notice, in a plain and direct manner, of the facts constituting a defence.' -'■^-^ "• ^^^ ^'^'^'-■^ '- ''- ^'-''— A demand once submitted to and passed upon by a jury, is ^tinguished.' But a nonsuit in a fw'mer action, is no bar to a new action for the same cause ;'^^and a former trial before a Justice, with a submission of the matter to him, but not fol- lowed by the ..rendition of judgment within four days, is no bar to a newactipn for, the 'same cause.' A verdict of a j ury, or f eport of referees, upon a demand exhibited by a defendant as a set-off, and rejected by the jury or the referees, is conclusive upon the defendant, when the demand was the subject of set-off in such suit; bixt if it ap- pear that the claim rejected could not legally have been allow- ed, although fully proved, the former trial is no bar to an ac- tion brought for the recovery of such demand.' If a party to a suit, either plaintiii' or defendant, presents a demand which is legal, and proper to be allowed if supported by sufficient testimony, and the jury pass upon it and disal- low it, such demand cannot be recovered in another suit. The verdict is conclusive, unless it appears that the claim re- jected by them could not legally have been allowed. To > 2 E. S. 2ST, § 241. 6 10 id. 868. = id. .§ 242. 8 5 Hill, CO ; 7 id. 508. s 10 Johnson 111, 246 ; 2 Hill, 4T8. ' 12 Wendell, 504 ; 8 Comstock, 475. <6 Johnson, 168; 2 id. 210., fc ,.', , .- , 222 NEW-TOEK JTrSTIOE. take the case out of tlie operation of the rule, the fact should appear affirmatively, that the jury could not legally haye al- lowed the defence ;' and parol evidence is admissible in the second suit to show what questions were controverted in the upon which it was determined.l PLEA'OF PAYMENT. "When any action is brought upon a demand, and the defend- ant has paid the same, he may of coui-se set up the payment as a defence. There are, however, some statutory provisions on the sub- ject of payment which ought to be noticed. When any action is brought upon a judgment, the defend- ant may plead payment of the amount due on such judgment, in bar of such action.' To any action brought on a bond which has a condition by which the same is to become void on the payment of a less sum, the defendant may plead payment of the principal sum and interest due by the condition of such bond, before the commencement of such action, in bar thereof, although such payment was not made strictly, according to such condition.V, A^-^**> 6 Bnrbour, 28, , ' 17 Vermont Ecp. 85. s 8 Comstock, 512 ; 4 id. Tl. /^ i^' • " Bacon's Abridgment, Tender, n, 1. £j //n j 3 2 K. S. 863, § 11. ' C Smedes & Marsball, 641 ; 10 Terger, 245. Md.§12. 1 3'J^t t- .'' f.-. PLEA OF TENDEE. 223 cles, as to a tender of them, when no place of delivery is men- tioned. With respect to the former, a personal tender is ne- cessary ; as to the latter, it is sufficient if the party tendering offer to deliver as the other party shall elect.' The common law on the subject of the delivery of specific articles which are portable, makes a distinction between a contract of sale of such articles, and a contract to pay a debt at a future time in such articles. In the contract of sale, the delivery must be made at the place where the vendor has the article ; but in the other case, the rule is, that the property is to be delivered at the creditor's place of residence. Lord Coke lays down the rule, that if the articles be not portable, but ponderous and bulky, and no place of delivery be named, the debtor must seek the creditor, or get him to name a place of delivery ; and, if no place, or an unreasona- ble one, be named, the debtor may deliver the articles at a place which circumstances shall show to be suitable and con- venient for the purpose intended, and presumptively in con- templation of the parties when the contract was made.'' If a note be given payable in cattle, grain, or other portable articles, and no place of payment be designated in the note, but the time of payment is fixed by it, the creditor's place of residence at the time the note was given, is the place of pay- ment.' But, where a note is payable on demand, in specific articles, without mentioning any place of payment, a special demand is necessary. A note thus payable in farm produce, should be demanded at the farm o'f the debtor ; and a note payable in merchandize, or manufactures, at the store of the merchant, or the shop of the manufacturer." If specific arti- cles are to be delivered at a [ articular time and place, they must be tendered at the time and place specified. A note payable in specific articles, without mentioning day or place, is in law payable on demand, and a special demand and re- fusal are necessary to maintain an action.' A tender and refusal are equivalent to actual performance, so far as the right to maintain an action subsequently for the 1 8 Johnson, «*; 3 Johnson's Cases, 213. * 5 Cowen, 516./^ /i/ut^ ^^f 2 2 Kent's Oomm. 507, 608 ; Go. Litt. 210 b. » id. ; 20 Wendell, 198. / » 2 Kent's Oomm. 507 ; 4 Wendell, 377. 224 ITEW-TOltK JUSTICE, thing tendered is concerned;' and the qnestion whether there have been such tender and refusal is one for the jury." A tender of specific articles due, and a refusal to receive them, absolutely discharges the debtor, who thenceforth holds them as bailee, at me expense 'anorisk of the other party.'^ He is not responsible for their safe keeping ; but if he dispose nf them, he will be answerable for their avails," While any thing remains to be done by a vendor by way of separating goods sold from others, with a view to deter- mine their quantity or identity, or their price, the tender is incomplete ; for it is a general rule, that while anything re- mains to be done by a vendor before delivery, the property does not vest in the vendee, but continues at the risk of the vendor." A delivery of property to a vendee, to be put in a market- able condition, and to be paid for thereafter by weight to be subsequently ascertained, is a conditional delivery, and does not vest the title to the property in the vendee." In tendering speciiic articles, the party making the tender must do every thing in his power to place himself in a state of perfect readiness to perform.' And, where an action was brought on a promissory note payable in produce, to be deliv- ered by a certain day at the maker's house, and it appeared that the maker had hay in his barn ready to be delivered, but neither its quantity nor value was shown, it was held, that there, (2.) By whom a tender may he made. A tender may be made by the party himself, or by a ser- vant, an attorney, or a stranger, on behalf of and at the desire of the party." Any person may make a tender on behalf of an idiot; for the law, by reason of his utter inability to act for himself, allows this to be done out of charity." 121 Wendell, 457. •2/«^^^*^«^<' son, S49. • / > " ' 2 3 Johnson's Cases, 243. ' 7 Wendell, 404. » 13 Wendell, 95 ; 5 id. 514 ; 23 id. 842 ; 10 id. '8 Johnson's Coses, 268. 374; 2 Kent's Comm. 609. ' 5 Johnson, 119. * 8 Johnson's Cases, 249. ' Bacon's Abridgment, Tender, A. ' 2 Campbell, 240 ; 6 Taunton, 617 ; 16 John- ' » id. was no proof of a tender.* PLEA OF TENDER. 225 (3.) What is a good tender. A tender is not good, unless the persoli making it declare upon wliat account it is made. It is not enough for the per- son who intends to make a tender, to say, that he is ready to pay the debt, or perform the duty ; but he must make an ac- tual offer to pay the one, or perform the other. The actual offer of money in a bag is a good tender, provided it be proved that the sum intended to be tendered was in the bag ; but, saying in such case, " I am here ready to pay you the money," without offering to deliver the bag, is not a good tender.' The tender is the production and manual offer of the money ; and it is not sufficient for the party who has the money in his pocket, to say to the person to whom the tender is made, " it is ready for you, if you will take it," oi^/'you canhaveit at anv time bv calling at my office.^ i/^^^'^^'v?^ y^^ ^iOencler oimoney in pay^nt ofa debt, to be available, must be without qualification; for it is not of the nature of a tender to make conditions, terms or qualifications, but simply to pay the sum tendered as for an admitted debt. ITierefore, a tender of money in full discharge of all demands of the cred- itor, is not good.^ So, a tender of the amount due on a note, made conditional upon the holder's striking out an endorse- ment upon it, in compromise of another matter, is not a good tender." But negotiable paper is an exception to the general rule that a tender must be unconditional ; for the endorser of a note may tender payment to the holder, ppon condition of the surrender of the note to him. V"/ It is not always necessary to make an actual manual ten- der, for it may be expressly waived by a party, and such a waiver, by his declaration or equivalent act, will excuse an actual offer, even in the case of money." But the money^ should be actually produced, unless the creditor dispenses* with its production by some positive act or declaration.' The creditor's demanding more than is due, is not equivalent to an act expressly dispensing with the production of the money 1 Bacon's Atridgment, Tender, B, 1 ; 5 Term < 14 Wendell, 221. Eep. 482, » 8 Barbonr, 408. ^ISWendell, 687; 18ConneoHcntEep.l8. » 8 Term Eep. 688; 8 Johnson, 474; 1«. » 20 Wendeli 47 ; 28 id. 842 ; 18 Vennont Wheaton, 888. 7 ' ' ._ ,: ^^ o""- Eep. 224. ' 15 Wcnlell, 687. 16 226 NEW-TOEK JTJSTIOE. that is due.' A strictly legal tender may be waived by an absolute refusal to receive the money.^ A tender of a gross sum upon several demands, without designating the ^mount, tendered upon each, is sufBcient/ ^- ''.-■>- ,^ J~Z/^ > 4/'2^ '''■''' ' 'i^iv ^ '■ 'Vj'^U'' ".■ ^ ■''''' -^ i^'^.^^ '^&^^i>/^.'g^iX S ■ (4.) ' As to thi thing tendered. The Constitution of the United States provides, that no State shall make any thing but gold and silver coin a tender in payment of debts." The act of Congress of the 2d of April, 1792, provides, that all gold and silver coins sti-uck at the Mint shall be a lawful tender in all payments." By the act of Congress of the 3d of March, 1843, the fol- lowing foreign gold coins are receivable by weight for the payment of all debts and demands at the rates following, viz: the gold coins of Great Britain, of not less than 915 1-2 thou- sandths in fineness, at 94 6-10 cents per pennyweight ; and the gold coins of France, of not less than 899 thousandths in fine- ness, at 92 9-10 cents per pennyweight. By the same act, the following foreign silver coins are re- ceivable by tale, for the payment of all debts and demands at the rates following, viz : the Spanish pillar dollars, and the dollars of Mexico, Peru and Bolivia, of not less than 897 thousandths in fineness, and 415 grains in weight, at 100 cents each ; and the five-franc pieces of France, of not less than 900 thousandths in fineness, and 384 grains in weight, at 93 cents each.' A legal tender can, therefore, be made only in the coins above specified. &,*•> , , /^ '■ ^ •>;...-: Bank notes are, however, a good tender as money, unless specially objected to.' "Where a creditor agreed to receive bank bills when a pay- ment became due, and the debtor tendered current bank bills on the day, it was held, that the agreement to receive tlie bank bills was a waiver of a tender in gold and silver.' In general, a payment in forged paper, or in base coin, is > 6 Wendell, 22 ; 18 Connecticut E. 18. ' ITJ. S. Statutes at Large 250, § 16 5 6 Barbour, 278. ' 5 id. COT. 3 23 Vermont Eop. 440. ' 10 Wheaton, 833 ; 2 Bosanquet & Puller, « ConBtitution U. 8. Art i, sec 10. B26 ; T Johnson, 476. 8 id. PLEA OF TKNBEE. 227 not good.' Payment in counterfeit bank notes is no payment, though they he received, both parties supposing them to be genuine." But the party receiving them must offer to return them, on discovering that they are worthless, without unne- cessary delay." Payment in bills of a bank which has stopped payment, is no payment, where the party receiving them is ignorant of the failure of the bank, whether the party paying is aware of the fact or not.* If money which has been duly tendered, becomes, after a refusal to accept, of less value than it was when, the tender was made, the party who refused to accept the money must bear the loss ;" and the party tendering, must, in order to avoid bearing the loss in such case, retain the identical money, and bring it into court." A note payable in " leather, such as suits," is payable in ,such leather as suits the payee.' (5.) At what place a tender- must ie made. If the contract be that money in gross, or rent issuing out of land, shall be paid, or that goods shall be delivered, at a place certain, a tender can only be made at the place.' In general, if no place for the payment of money be spe- cified in a contract, the party who is to make the payment must seek the other party, if within the State ; and a tender at the residence of the latter, during his absence, will not avail. But where the contract was for the sate of lands, spe- cifying a day for the payment of the purchase money, but no place, and on enquiry by the vendee, the vendor said he would be at home upon the day fixed, it was held that a ten- der at his residence on that day, to his son who lived with him, he having absented himself, was good.V'^d,v_J'^.^4<;> If a merchant give a due-bill, payable to A., in goods, and no time or place of payment be designated, the due-bill con- tains an aclcnowledgment that A. has paid him in advance 1 10 Wheaton 3»3. " 2 Cowen's Treatise, 263. ■> 2 Johnson, 465. ' id. 264. ' 6 Hill, 840. ' Bacon's Alriagment, Tender, C.^ /^ •_ • U Wendell, 11 ; 18 id. 101. • 25 Wendell, 405 ; 2 Hill, 851. /) ^<«* 2 Oowen's Treatise, 262. 4t ^ i?- ''''* "^ %'»' ' 1 Barbour, 114. f^ .q, ns Wendell, 890. »2 K. S. 553, §20. <] V- «,?^ /Ji,^ PLEA OF TENDER. 231 sufficient to pay the plaintiff's demand, and tlic costs of the suit or proceeding up to the time of sucli tender, the plaintiff will not be entitled to recover fcr collect any interest on such demand from the time of such tender, or any costs incurred subsequent to that time, but will be liable to the defendant for the costs incurred by him subsequent to such time.' If the action or proceeding be to recover damages, and it appears that the sum tendered was a sufficient amends for the injury done, and for the costs, as before mentioned, the plain- tiff will not be entitled to recover any costs in any such action or proceeding, incurred after such tender, but will be liable to the defendant for his costs incurred after that time.'' If any such tender be accepted by the plaintiff, and he thereafter proceeds in the action, the sum so accepted must be deducted from the whole amount of the recovery, and judgment be rendered only for the residue; and an entry of such tender and acceptance must be made on the record. The plaintiff's right to recover costs, and his liability to pay costs to the defendant, must be determined by the amount of such residue.' Under these provisions it has been held, that if the plain- tiff refuses to accept the tender, when offered, he is jet entitled in any event to a verdict and judgment equal to the amount tendered. And if a tender is made before trial, which the plaintiff refuses to accept, he may afterwards, at the trial, elect to accept it ; and if he does so, the defendant is bound to pay, or have a verdict rendered against him. for the amount.* "Whenever an action is pending upon any bond which has a condition by which the same is to become void on the pay- ment of a less sum, the defendant may, at any time before judgment rendered in such action, pay to the plaintiff, or bring into Court for the plaintift''s use, the principal sum and interest due on such bond, together with the costs incurred in such action, and thereupon such action must be discontinued.' Under this statute, it has been held, that where a bond is » 2 E. 8. 554, § 21. MS Wendell, 890. Md. § 22. '2 K. 8. 858. § 13. 'id, §23. 232 NEW-TOEK JUSTICE. conditioned for the payment of money at a future day, with interest semi-annually, and it is provided that in default of the payment of interest at the time specified, the whole of the debt, the principal, with the unpaid interest, shall become due, and a default in the payment of interest happens, and an action is brought demanding the whole debt, the defend- ant is not entitled, on bringing into Court the arrears of interest, with the costs, to a rule for discontinuance, but is liable for the principal as well as the interest.' Besides the provision of the statute, that a tender may be made to the plaintiiT or his attorney, it is established by the decisions of the Courts, that a tender may be made by the payment of money into Court. The object of a tender, or of the payment of money into Court, in an action for the recovery of money, is to stop interest and avoid the payment of costs.' As a general rule, when the sum demanded is a sum certain, or capable of being ascertained by mere computation, without leaving any sort of discretion to the Justice or jury, the defendant is at liberty to pay the money into Court. Such payment is allowed, when the action is brought on a money demand, as on a promissory note, or for debt on simple contract, or for rent due ; but it is not permitted in an action for a trespass, nor generally upon an unliquidated claim. ^ The defendant should be careful to pay into Court a sum sufficient to satisfy the plaintiif 's demand. If the claim is one drawing interest, interest should be cast up to the time of the payment into Court, and the amount paid should be enough to cover both principal and interest ; otherwise, if the payment is insufficient to cover both, the plaintiff will be entitled to costs. The defendant may pay money into Court at any time before answering; and, by analogy to the practice of Courts of Record, it is presumed he may do so after issue joined, by permission of the Justice.* Payment of money into Court admits the cause of action stated in the complaint, only to the extent of the amount > 19 'Wonflell, 104 ' Grabaui's Practice, 454. '12 JoLnson, 2T4 * 1 Cowon's Treatise, 241. SET-OFF. 233 paid in ; beyond that amount, the defendant may mate his defence.' Where money has been paid into Court, the plaintiff may in all cases take it out, and then either accept it in satisfac- tion of his debt, or proceed in the action, at his option.^ "Where money is paid into Court, and the plaintiff proceeds in the suit, but fails to establish his demand beyond the amount paid in, the defendant is entitled to the costs of the defence incurred subsequently to the payment of the money into Court, but not to the costs previously accrued.^ If, after the payment of money into Court, the plaintiff pro- ceeds in the action, he may, at any time before trial, discon- tinue his action by paying the costs of the defendant incurred after the payment into Court, or he may suffer judgment for such costs against him.* , /-^ ' a^ M^, .' /' 10. SET-OFF. In the following cases, and under the following circumstan- ces, in a Justice's Court, a defendant may set off demands which he has against the plaintiff: 1. It must be a demand arising upon judgnient, or upon con- tract, express or implied, whether such contract be written or unwritten, sealed or without seal ; and if it be founded upon a bond, or other contract having a penalty, only the sum equi- tably due by virtue of its condition can be set off;' 2. It must be due to him in his own right, either as being the original creditor or payee, or as being the assignee or owner of the demand ;° 3. It must be a demand for real estate sold, or for personal property sold, or for money paid, or services done ; or if it be not such a demand, the amount must be liquidated, or be ca- pable of being ascertained , by calculation ;' 4. It must have existed at the time of the commencement of the suit, and must then have belonged to the defendant ;° 5. It can be allowed only in actions founded upon demands 1 2 Wendell, 431. ^ i .! <. ■ ' ) O . « ii Slid. 191. ■' 7 id.; 3 Johnson's Cases, 145 ;lBandl'ord, 254 ; s 8 id. 826. 2 Caines, 83 ; 6 Cowen, 613. 4 Graham's Practice, 459. 8 2 E. B. 234, § 50 ; 8 Jolmson's Oases, 145 >" » 2 E. 8. 234, i 50. i ^^ . 19 Johnson, 322 ; 6 Hill, 10 ; T id. 686. 234" NEW-TOEK JUSTICE. wMch could themselves be the subject of set-off, according to law ;' 6. If there be several defendants, the demand set off must be due to all of them jointly ;" T. It must be a demand existing against the plaintiff in the action, unless the plaintiff is the assignee of a thing in action, (other than a negotiable promissory note, or bill of exchange, transferred in good faith and upon good consideration, before due,) or imless the suit be brought in the name of a plaintiff who has no real interest in the contract upon which the ac- tion is founded, in which case no set-off is allowed, unless as is hereinafter specified ;' 8. If the action be founded on a contract which has been assigned, (other than a negotiable promissory note, or bUl of exchange, transferred in good faith and upon good considera- tion, before due,) a demand existing against the plaintiff at the time of the commencement of the suit, or against any assignor at the time of the assignment by him, and belonging to the de- fendant in good faith before notice of such assignment, may be set off to the amount of the debt claimed in the action, if the demand be such as might have been set off against such assign- or, while the contract belonged to him ;* 9. If the action be upon a negotiable promissory note, or bill of exchange, which has been assigned to the plaintiff af- ter it became due, a set-off, to the amount of the plaintiff's debt, may be made, of a demand existing against any person or persons who shall have assigned or transferred such note or bill after it became due, if the demand be such as might have been set off against the assignor, while the note or bill belonged to him ;° 10. If the plaintiff be a trustee for any other, or if the suit be in the name of a plaintiff who has no real interest in the contract upon which the suit is founded, so much of a demand existing against those whom the plaintiff represents, or for whose benefit the action is brought, may be set off, as will satisfy the plaintiff's debt, if the same might have been > 2 E. S. 284, § 60 ; 14 Johnson, 63 ; 6 Cow- » id. ; Code, § 112. en,' 618; 1 Sandford, 626. * id. ; 2 E. 8. 234, § 60. » 2 B. S. 234, S 60. ' id. 235, § 60. SET-OFF. 235 set; off ™ ^T^ action brought by those beneficially interested ;' 11. But if such action be brought by the assignee of an in- solvent, imprisoned, absent, concealed or absconding debtor, no set-oif shall be allowed of any debt, unless in the cases pro- vided in the fifth chapter of the second part of the Eevised Statutes.^ (See 2 E. S. 47, § Y, suhcl 1.) In citing subdivisions seven and eight above, the language of them has been changed, in order to conform it to the change introduced by the Code, vs^hich requires every action to be prosecuted in the name of the real party in interest, except in certain specified cases, such as suits by an executor, adminis- trator, trustee, or person suing under a statute.^ The Code also provides, that in the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defence existing at the time of or before notice of the assignment, except in the case of a negotiable promissory note or bill of exchange, transferred in good faith and upon good consideration, before due." The object of this provision of the Code is, to preserve the rights of a defendant in regard to a set-off, where the suit is brought in the name of an assignee, in the same degree in which they were pro- tected in a suit which was formerly required to be brought in the name of an assignor, such as a suit on a bond or a covenant. The Code leaves the right of set-off unaffected by the change made in the party bringing the action ; and the law of set-off as established by the Kevised Statutes is the law of set-off un- der the Code.* But the change made in the party required to bring an action, has required a change in the language of sub- divisions seven and eight, before referred to, in order to make them express their true meaning under the Code. When a judgment is obtained before any Justice, in any suit commenced by attachment, and the defendant is not per- sonally served with the attachment or summons, and does not appear, such judgment is only presumptive evidence of in- debtedness, in any suit that may be brought thereon, and may be repelled by the defendant, and he will not, in such suit, be » 2 E. S. 235, § 50. * id. §112; 2 Barbour, 2aa "id. « 4 Sandford, 610. ' Code, §§ 111, 113. 236 NEW-TOEK JtrSTIOE. Bet-off which he may have against the plaiptiff.\,„ . a aeiendant to a set-ofi, he must give notiee oi the same in his answer, specifying the nature of his claim with reasonable certainty, at the time of joining issue on a ques- tion of fact upon the merits of the cause.° If the amount of the set-off duly established be equal to the plaintiff's debt, judgment must be entered for the defendant, with costs ; if it be less than the plaintiff's debt, the plaintiff must have judgment for the residue only, with costs. K it be more than the plaintiff's debt, and the balance found due to the defendant from the plaintiff in the action, be one hundred dollars or under, judgment must be rendered for the defend- ant for the amount thereof, with costs, and execution must be awarded, as upon a judgment in a suit brought by him ; but no such judgment can be rendered against the plaintiff, when the contract, which is the subject of the suit, has been assigned before the commencement of such suit, nor for any balance due from any other person than the plaintiff in the action.' How far this provision, that no judgment can be rendered against the plaintiff for a balance found due to the defendant on a set-off, when the contract which is the subject of the suit has been assigned before the commencement of the suit, is practically affected by the change made by the Code requiring every action to be brought in the name of the real party in interest, is a question not yet decided. It is not necessary that something should be allowed to the plaintiff, in order to sustain a judgment for the defendant up- on his set-off.* If the balance found due to the defendant exceeds one hun- dred dollars, the Justice must set off so much of the defend- ant's demand against the plaintiff's debt, as will be sufficient to satisfy it, if required to do so by the defendant, and miist render judgment for the defendant for his costs ; but if the defendant does not require such set-off, the Justice must enter judgment of discontinuance for the defendant, with costs ; and the defendant may thereafter sue for and recover his de- mand in any Court having cognizance thereof.' » Laws of 1831, chap. 800, § 89. 4 4 Denio, 168. » 2 K. S. 235, § 61. " 2 E. S. 286, § G3 ; Laws of 1840, chap. 81T, J 8. 3 Id. 8 62; Laws of 1840, chap. 817, § 8. SET-OFF. " 237 If, upon the trial of a cause, it appears that the amount of the plaintiff's claim, together with the demands set off by the defendant, according to the preceding provisions, exceed four hundred dollars, judgment of discontinuance must be render- ed against the plaintiff, with costs.' In suits brought by executors or administrators, the defend- ant may set off demands existing against their testators or in- testates, and belonging to the defendant at the time of their death, in the same manner as if the action had been brought by and in the name of the deceased.'' "Whenever a set-off is established in a suit brought by exec- utors or administrators, the judgment must be against them in their representative character, and is evidence of a debt es- tablished, to be paid in the course of administration ; but exe- cution cannot issue thereon, until directed by the surrogate who granted letters testamentary or of administration.' If a defendant neglects to give notice in his answer, of any set-off, which, according to the preceding provisions, might have been allowed to him on the trial of the cause, he will be forever thereafter precluded from maintaining any action to recover the same, or any part thereof. And if the demand which might have been set off consists of a negotiable note, or bill of exchange, no action can be maintained thereon, by any person who may derive title thereto from or through the defendant.' But the statute provides,' that the provisions in this paragraph shall not extend to the following cases: 1. "When the set-off shall be one hundred dollars more than the judgment which the plaintiff shall have recovered; 2. When the set-off consisted of a judgment in favor of the defendant, or belonging to him, rendered before the commencement of the suit in which the same might have been set-off; 3. When a set-off shall have been claimed by him, and a balance ex- ceeding one hundred dollars shall have been found in his fa- vor, the defendant may maintain an action for such part of his demand as was not allowed to him as a set-off; i. When the suit was commenced by attachment, and the defendant > 2 K. S. 2S5, § 54 ; Code, § 54, Bubd. 4. Md § 5T, 2 2 E. 8. 285, § 55. • Id. § 58. » id. § 56. 238 * HEW-TOEK JtrSTIGE. did not appear in the suit ; 5. Claims for unliquidated dama- ges which could not be set off on the trial of the cause, accor- ding to the preceding provisions ; 6. Claims in suit in any other Court, at the time of the commencement of the suit he- fore the Justice. The provisions hereinbefore set forth in regard to set-off are all contained in the Code and in the Bevised Statutes. "When the sum total of the accounts of both parties, proved to the satisfaction of the Justice, exceeds four hundred dollars, the Justice has no jurisdiction;' and he should, therefore, dismiss the suit, with costs against the plaintiff. But, to bring a case within this provision, the claims, demands, or accounts, which make up a sum exceeding four hundred dollars, must be subsisting, open, and unadjusted between the parties ; that is, they must be such as are not founded on joayments, as originally made, or on matters of account, which, by agi'ee- ment of the parties, were subsequently applied as payments. Where payments have been made, or accounts settled, the balance only will constitute a claim, demand, or account within the statute ; for, whatever has been received or appli- ed specifically as payment, must be rejected.' In an action for a tort, there can be no set-off;' nor in an ac- tion for the recovery of damages for the breach of a warranty in the sale of goods.* A defendant cannot set off against an executor or adminis- trator a debt acquired against the estate of the deceased per- son subsequently to his death;' nor can an executor or admin- istrator, in a suit against the estate of the deceased, set off a demand purchased since the decedent's death.' A demand, to be set off against a debt due to a deceased person, must have been due at his death.' A. cannot set off, in a suit brought by B., a joint demand against B. and C A note made by one partner is not a good set-off against a demand belonging to the firm.' In an action to recover from a stakeholder money staked > Code, § 64. '• A''- ., .-' '■ , • 21 Wendell, 6T4. » 4 Denio, 8T0. ' 2 Hill, 210. s 8 Oaines, 84 s 12 Wendell, 504; 8 Hill, 112. * 11 Wendell, 634 • 4 Wendell, 583. • 20 Jolinsan, 13T. SET-OFF. ^ 239 with iiim by the plaintiff on a wager upon the event of a horse- race, the%iefendant cannot set off the amount of a deposit made by him with the plaintiff upon another wager of a simi- lar character.' It is not sufficient, in an answer to a complaint, to state that " the plaintiff is indebted to the defendant, on account of previous transactions, in a sum of money equal to the sum claimed by the plaintiff, as will appear by the account current rendered by the defendant." ' One who objects to the admissibility of a set-off, and has it excluded, cannot object, when sued upon it, that it was not set off in a former action.' Though the general rule is, that demands growing out of partnership dealings cannot be set off against individual de- mands of one of the partners, yet a special agreement may be made for such set-off." Where an assignment from one defendant to another, of a joint interest in a demand offered as a set-off, bears date prior to the commencement of the suit, this is prhna J^acie evidence that the assignment was executed before the suit was com- menced.^ .r-f-.- //, .. „, , S~^-'^>y- ^- '?'"■ - ^/ /^^>y^J-//. Where a debtor has a set-off equally applicable to two de- mands against him, it is not for him to elect which of the de- mands he will satisfy by his set-off; but the Court will direct the application, acording to the equities between the parties.' A note or account, assigned before the commencement of a suit against the assignee, may be set off by him, though he has not actually paid for it, but only agreed to pay.' But a judgment, purchased by a party with a view to set it off, and with a condition that, if he fails to obtain the set-off, the assignment shall be void, and the assignor shall pay the costs, cannot be set off ; for the party must be the absolute owner of the judgment to make it a set-off." Where a suit is brought upon an account, by the assignee thereof, a promissory note of the assignor, held by the de- ■ 2 Sandford, 436. ' 8 Barbour, 210. = 1 Code Eeportcr, (new series,) IIT. ' 4 id. 882. ' 9 Johnson, 352 ; i Denio, 292. ' 5 Hill, 168 ; 7 Id. 585. * 1 Hall, 848. ' T Cowen. 469, 480. 240 * HEW-TOEK JUSTICE. fendant at the time of the assignment of the account, but riot then due, cannot be set oif against such account.' ,^^«^;.'<^<^^ The meaning of recowpment is, a reduction of the damages claimed ; and it is not, in theory and contemplation of law, a complete bar. Neither can it be made so by an allegation that the damages which the defendant claims by way of re- coupment exceed those claimed by the plaintiff. In all the adjudicated cases, both in England and in this State, in which recoupment has been allowed, it has been considered, and has been generally described, as s^jparUal defence. Eor this rea- son, it is necessary for the party claiming to recoup, to give notice to that effect in his answer, for the purpose of prevent- ing surprise to the opposite party.' Mr. Barbour, in his compilation on the Law of Set-Off, says, that the defence is somewhat analogous to a set-off, and is presented, not as a matter of set-off arising on an independent contract, but for the purpose of reducing the plaintiff 's dam- ages, on the ground that he has not complied with obligations on his own part, arising out of the same contract on which he brings his action. Thus, in an action by an employee to recover compensation for services rendered, the employer is entitled to show, by way of recoupment of damages, loss sus- tained by him through the negligence of the person em- ployed." It is well settled in this State, that, in an action for the price of goods or chattels sold, or of work and labor done, or of professional services rendered, whether the action be on the original contract price, or on a security given therefor, it is competent for the defendant to set up and give in evidence, in diminution or recoupment of damages, any fraud, breach of warranty, or negligence, relating to the particular thing in question, by which he has been injured; and the whole mat- ter is to be submitted to the jury." "Where an action is brought for the breach of a contract, whether sealed or not, and the defendant can show that the 1 8 Barbour, 40 ' Barbonr'a Law of Set-OfF, 26. " 6 Id 886. ' Sedgwick on Damages, 4T7. EECOUPMENT. 241 plaintiff lias not performed the contract on his part, according to its terms or spirit, and such non-performance would entitle the defendant to a cross-action, he may, at his election, instead of bringing such cross-action, recoup his damages arising from the breach committed by the plaintiff, whether they be liquidated or not. But, in such case, he must give notice, in his answer, of his intention to insist upon the right of recoup- ment.' The right of a defendant to recoup, is not confined to cases where fraud is imputable to the plaintiff. It may exist, though the damages result from a mere breach of contract, and where they are unliquidated on both sides. Where, on the sale of a quantity of standing wood, the vendor agreed to indemnify the vendee against any damage that might happen to the wood in consequence of the burning of an adjoining fallow, and the vendee gave his note for the price, and afterwards, the fallow being burned over, the wood in question was destroyed by fire, it was held, in an action by the vendor upon the note, that the vendee might recoup his damages arising from the loss of the wood." When a defendant elects to use his claim by way of recoup- ment, he cannot have a balance certified in his favor, as in the case of a set-off; but must be content to have it go in abatement, in whole or in part, of the plaintiff's demand.' A defendant cannot recoup for damages accrued after the suit is commenced.' In an action on a note given for making barrels, the de- fendant, under a proper notice in his answer, may prove that they were not made pureuant to agreement, and so reduce the recovery.' Where a party brings an action for work and labor done under a contract not fully performed, the other party may recoup his damages for such non-performance.' Where a party has failed to perform his contract at the day, a consent by the other party to his going on afterwards and completing the contract, is no waiver of a right to recoup damages for the delay.' ' 22 Wendell, 155 ; 5 Hill, 63. » 2 Wendell, 431. a8id.l71. » 14 id. 25T ; 95 Id. 665. s 14 Wendell, 257. ' 5 Hill, T6. * 4 Baiioor, 266. 17 242 NEW yOEK JUSTICE. If an infant refuses fully to perform an agreement to serve A. for a certain time, and sues, by his next friend, for the la^ hor done, A. cannot recoup his damages for the non-perform- ance of the entire contract.' If one hire a horse for a journey, and the horse give out on the way, without any negligence or wilfulness on the part of the bailee, he may, on being sued by the bailor for the hire, recoup any expenses to which he has been necessarily put in taking care of the horse, and completing the journey." A breach of warranty as to quality in the sale of an article, may be given in evidence in diminution of damages, under a proper notice in the answer, in an action by the vendor for the price.'' In an action for rent, the tenant may avail himself of a breach of the landlord's covenant to repair, by way of re- coupment, but not by way of set-off ;' but, in such an action, the tenant cannot recoup damages for the tortious acts of the landlord's servants, while on the premises under a privilege of making repairs, reserved to the landlord.' By known and established custom, a warehouseman has the right to receive goods from a carrier, if in apparent good or- der, and advance the carrier's charges, and hold them subject to the carrier's lien for the amount thus advanced ; and if the goods have been injured by the carrier, and the injury is not known or apparent to the warehouseman, before or at the time of his receiving the goods, the owner must look to the carrier for his damages, and cannot recoup the same in an action by the warehouseman to recover the amount so advanced to the carrier.' V/hcre, under a parol contract for the future delivery of a fixed quantity of goods, at such times and in such parcels as may be required, separate deliveries are made, and settled for when made, each delivery is to be considered as in its nature a separate and distinct contract ; and, in an action for the price of the parcel last furnished, the buyer cannot recoup his damages growing out of the inferior quality of the goods pre- viously delivered. Damages cannot be recouped, unless they 1 8 Denlo, 875. * 2 Comstook, 288. ' 8 Barbour, 280. " 2 Siuidford, 120. 3 8 Wendoll, 109. • 11 Barbour, 120. , PLEA OF TITLE. 243 arise out of tlie particular contract on which the action is founded.' 12. PLEA OF TITLE. A Justice has no jurisdiction of a civil action where the title to real property comes in question." In every action brought in a Court of a Justice of the Peace, where the title to real property comes in question, the defendant may, either with or witliout other matter of de- fence, set forth in his answer any matter showing that such title will come in question. Such answer must be in writing, be signed by the defendant or his attorney, and be delivered to the Justice. The Justice must thereupon countersign the same, and deliver it to the plaintiff.' § 37. Answer, Setimig wp Plea of Title. In Justice's Court, • . f Before Elijah Paine, Justice. agmnst (A John Brown, ) The above named defendant, in answer to the plaintiff's complaint, denies the allegations therein contained ; and he farther says, that the premises on which the trespass is alleged to have been committed, belong to the defendant, and he claims title to the same. John Beown. At the time of answering, the defendant must deliver to the Justice a written undertaking, executed by at least one suffi- cient surety, and approved by the Justice, to the effect that if the plaintiff shall, within thirty days thereafter, deposit wWi the Justice a summons and complaint, in an action in the 0©Hsifef Court, for the s^me cause, the defendant will, within ten idays after such deposit, give an admission in writing of the service thereof.* "Where the defendant was arrested in the action before the Justice, the undertaking must farther provide, that he will at all times render himself amenable to the process of the Court during the pendency of the action, and to such as may be issued to enforce the judgment therein. In caee of failure to comply with the undertaking, the surety is liable, not exceeding one hundred dollars.' M^ancB'oTd.liT. < id. § 66. » Code, §64. • id. Md. § 66. 2i4 NEW-YOEK JUSTICE. All oral answer setting up a plea of title, is a nullity ; and so is a written answer, if unaccompanied by the undertaking required by tlie Code • ;„ ,■ -.•,■..? ^ /,<„^ ^ i' J ^< HtO §38. UndertaTcmg, on Plea of Title. In Justice's Court, John Smith ) against > Before Elijah Paine, Justice. John Brown, ) t John Brown, the defendant in this action, having set forth in his answer matter showing that the title to real property will come in question in this action : Now, therefore, we, John Nelson and Royal Stow, hereby undertake to the effect, that^CJgfer Smith, the plaintiff in this action, shall, withia t himj a^i from the date hereof, deposit with the above n^ned Justice a summons and complaint, in an action in the GS«^^' Court ©#«»-=^"'-ee««ty, for the same cause of action SQt forth in tkecDmplaint in this action, the said defendant mMl, within'^^^^days after such deposit, give an admission in writing of the service thereof. [Jf the defendcmt has been unvested in the action before the Justice, add : And whereas the said defendant has been arrested in this action, we do farther undertake that he shall at all times render himself amenable to the process of the court, during the pendency of this action, and to such as may be issued to enforce the judgment therein.] Dated Auburn, December 2'rth, 1852. John Nelson, E.0YAL Stow. The undertaking must be approved by the Justice, and he should be satisfied of the responsibility of the sureties. He must also countersign the undertaking. His approval and countersigning may be as follows : I approve of the within undertaking, and of the sufficiency of the sureties therein, and countersign the same. Elijah Paine, Justice. \ Tlie Justice must then deliver the undertaking to the plain- tiff. Upon the delivery of the undertaking to the Justice, the action before him must be discontinued, and each party must pay his own costs. The costs so paid by either party must be allowed to him, if he recover qosts in the action to be brought for the same cause in the bounty Court. If no such >Coao, §68; 011111,842. PLEA OF TITLE. 245 action be bronglit within thirty days after the delivery of the undertaking, the defendant's costs before the Justice may be recovered of the plaintiff.* K the undertaking be not delivered to the Justice, he has jurisdiction of the cause, and must proceed therein ; and the defendant will be precluded, in his defence, from drawing the title to real property in question." If, however, it appear on the trial, from the plaintiff's own showing, that the title to real property is in question, and such title be disputed by the defendant, the Justice must dis- miss the action, and render judgment against the plaintiff for the costs.' But if, under this provision, the Justice improp- erly refuse to dismiss an action, his judgment will not be void for want of jurisdiction, but only voidable for error.' And, nnder this provision, a Justice may properly proceed and render judgment, notwithstanding evidence of title to real property be given by the plaintiff, if the defendant do not expressly dispute such title, nor move to have the cause dismissed.' Though it be material for the plaintiff to show his title, as where he sues as reversioner, yet, if the defendant neither ob- jects to the evidence, nor dispxi^^es its effect, nor moves for a dismissal of the cause, the title is not disputed on the trial, within the meaning of the statute, and a judgment for the plaintiff is valid.' When a suit before a Justice is discontinued by the deliv- ery of an answer and undertaking, as- above provided, the plainti^ may prosecute an action for the same cause, in the •Ceufti^ Court, and must complain for the same cause of ac- tion only on which he relied before the Justice ; and the an- ■ swer of the defendant must set up the same defence only which he made before the Justice.' Where a plea of title is inter- posed, by which the Justice is ousted of jurisdiction, and an action for the same cause is commenced in the County Oourt, the same rules of pleading and practice govern which prevail ^o.x • ,,;■. ////^ui 6 Uownrd's Prac. Kep. 185. » 20 ■Wondoll, 96. ^ //; ^ ^ -^ *^' -i^ > Coae, § 61. « T Id. 145. >M. §C2. 'Cid. 466; 19id.3T8. 4 Id. § C8. * 6 Hill, 842. PLEA OF TITLE. . 247 tion as not to interfere with the public right of passage ; it was held, that the title to land did not come in question, so as to oust the Justice of his jurisdiction.' Where a plaintiff, in his complaint, averred the ownership \ and possession of land, and an alleged entry by the defendant with teams and plows, and the plowing up of shrubbery and ^ vines, and the destroying of trees; and the defendant answered that he did it by virtue of an agreement between himself and the plaintiff, on the sale of the premises by him to the plain- tiff ; it was held, that under this issue the title to land came in question." If, in an action of trespass for piiUing down the plaintiff's fence, the defendant justifies himself on the ground that the place where the trespass was committed is a public highway, the Justice is deprived of jurisdiction ; and, if he proceed aijd ^render judgment, it will be reversed.' , ''^ 'j^\ -,'/ '^'-'"^ //, The question of the actual possession of lands is not one of title, within the meaning of the Code, and a Justice may try and determine it. Accordingly, where, in an action for tres- pass upon land, no plea of title being interposed, the plain- tiff relied on his actual possession of the land, it was held that proof by the defendant that he was in the actual possession of the land at the time of the alleged trespass, was proper, and that the title to land was not involved, because the right of possession, was not in question.* ■U.'-jt 1 ■^' iJ /&^ When the title is put in issue by the answer, the Justice is ousted of jurisdiction, and the consent of the parties that the Justice may go on and try the action, will not give him ju- risdiction. ° Where the complaint is so drawn that the defendant a^n set up title in his answer, and, on giving the requisite securi- ty, oust the Justice of his jurisdiction, but he omits to set up title, the Justice retains his jurisdiction, and the defendant is prechided from drawing it in question.' > 8 Barbour, 289. ., , ^ » Id. 842 ; 6 Wendell, 4CD ; 17 JohnBoa, 4n. » id. 567.^ • ■ <^' ' — • ^ 1 Hoffman's Oh. K. t s 19 Wendell, 878 ; 6 Hill, 84i. • 11 Barbour, 890. id. 409 ; 8 Hill, 823. ' 4 Denlo, 95. < 4 Johnson, in. Hi 160. 250 NEW-YOEK JUSTICE. But sucli adjournment cannot be granted, unless the plaintiff or his attorney, if required by the defendant, makes oath that he cannot, for want of some material testimony or witness, safely proceed to trial.' A Justice cannot adjourn the trial of a cause for more than eight days, at the instance of the plaintiff ; but where a Jus- tice, at the request of the plaintiff, adjourned a cause for ten days, and the defendant afterwards appeared and examined a witness, it was held to be a waiver of the irregularity." The plaintiff can obtain an adjournment, only at the time of the return of process, or of joining issue without process. Where issue was joined in a cause and it was adjourned, and on the adjourned day, the defendant being absent, the plain- tiff appeared, and the Justice again adjourned the cause, on the suggestion of the plaintiff that the defendant had agreed to an adjournment, and on the plaintiff's affidavit of the ab- sence of a material witness, without his showing due diligence to procure his attendance, it was held, that the Justice had not an unlimited discretion to adjourn at the suggestion of the plaintiff, and that such adjournment was a discontinuance of the cause.^ And, where a cause has been once adjourned by consent of parties, a second adjournment cannot be granted at the instance of the plaintiff.* If the defendant requires it, the Justice has no right to grant an adjournment upon the application of the plaintiff, unless the plaintiff or his attorney makes oath that he cannot, for want of some material testimony or witness, safely proceed to trial. No adjournment of a cause commenced by warrant, issued at the suit of a non-resident plaintiff, can be had, except in the following cases : 1. On the consent of both parties ; or, 2. On the application of the defendant, supported by his oath, that he has a good defence to the action, and that he is not ready to pro- ceed to the trial thereof ; and in such case it cannot be grant- ed, unless the defendant will consent that any witness on the part of the plaintiff, who shall be then attending, may be then examined on oath by the Justice, his testimony reduced to I2E. 8. 288, §69. » 8 Id. 391. » 7 Johnson, 881. fi ■ ''■ ' /' * IB id. 492. ADJOTJENMENT. 251 writing, certified by the Justice, and left witli him, to be read on the trial of the cause ; or, 3. On the application of the plaintiff, supported by his oath, that on account of the ab- sence of some material witness or testimony, he cannot then safely proceed to the trial of the cause.' If such cause be adjourned on the consent of both parties, or if it be adjourned on the application of the plaintiff, the defendant must be discharged from custody ; but the cause will not be discontinued by such discharge; and, at the ad- journed day, the same proceedings must be had, as on the re- turn of a summons personally served." The first adjournment of a cause commenced by Avarrant, must be to a day not less than three, nor more than twelve days thereafter, unless the parties and the Jtistice otherwise agree." When any witness, attending before any Justice, in any cause, refuses to be sT\^orn in any form prescribed by law, or to answer any pertinent and proper question, and the party at whose instance he attended shall make oath that the testi- mony of such witness is so far material, that without it he can- not safely proceed in the trial of such cause, such Justice may, by warrant, commit such witness to the jail of the county.* The Justice must thereupon adjourn such cause at the request of the party in whose favor such witness attended, from time to time, until such witness testifies in the cause, or is dead or insane.' "Whenever a short summons is issued in favor of a non-resi- dent plaintiff, under section 32 of the non-imprisonment act, (see ante, p. 170 ,) and is returned personally served, no lon- ger adjournment can be granted than in case of a warrant at the instance of a non-resident plaintiff ;° that is, not more than twelve days, unless the parties and the Justice otherwise agree.' No adjournment can be allowed, without the agreement of parties, to a time beyond ninety days from the joining of the issue in the action ; nor can an adjournment be allowed in » 2 E. S. 238, § 70. « id § 281. a id. § 72. Laws of 1831, chap. 800, § 82. » id. 289, § 73. 7 2 E. S. 289, § 78. ■• id. 274, § 279. 252 NEW-TOEK JUSTICE. any case to a party applying therefor, who shall have seen the account or demand of the opposite party, unless such appli- cant, if required, exhibits his account or demand, or states the nature thereof, as far forth as may be in his power, to the satisfaction of the Justice/ When a commission is applied for and granted on the part of the plaintiff, which we shall see hereafter' may be done whenever an issue of fact shall have been joined in amy ac- tion or suit before a Justice of the Peace, the plaintiff is enti- tled to an adjournment for such reasonable time as will ena- ble him to procure the return of the commission, not exceed- ing ninety days from the joining of issue.' If, in any suit in the Marine Court of the city of ITew-Tork, the plaintiff makes oath that he cannot, for the want of some material evidence or witness, safely proceed to trial, the Court may, in its discretion, and upon such terms as may be deemed proper, postpone the trial for such reasonable time as will en- able the plaintiff to procure such evidence or witness, provi- ded such time shall not exceed three calendar months.* 3. ON MOTIOIT OF THE DEFENDANT. In all cases, (other than where the action has been commenced by warrant at the suit of a non-resident plaintiff,) the defend- ant is entitled to an adjournment, on his application therefor, and on his complying with the following requisitions : 1. The application must be made at the time of joining issue ; 2. If required by the plaintiff or the Justice, the defendant must make oath that he cannot safely proceed to trial, for the want of some material testimony or witness, to be specified by him ; 3. If required by tjie plaintiff, he must give security, as here- 1. If required by the plaintiff, he mu fter specified.^ 7/^ ^ v^^^^k >,V after specified.^ *//- *^ •--— ^ ^« ^^J^C.r^^. J^ Such adjournment must be for such reasonable time as will enable the defendant to procure such testimony or witness, not exceeding ninety days.° The defendant is entitled to the like adjournment, on com- plying with the like requisitions, in order to procure the re- turn of a commission, which, as we shall see hereafter,' may « 2 B. 8. 240, §§ 78, 79. •• Laws of 1862, chap. 889. » Post, Fart I, chap XI. » 2 E. 8. 289, § 74. V' /) . • » Laws of 1841, chap. 188, § 1 ; Laws of 1888, • id. chap 24a, § 2 ; 2 E, 8. 289, § 74 ; id. 240, § 78. ' Post, Part I, chap. XI. ADJOTORNMEIfr. 253 be issued on the application of the defendant, whenever an is- sue of fact shall have been joined in any action or suit before a Justice of the Peace.' The Justice should exercise a sound discretion as to the time of the adjournment, taking into consideration the resi- dence of the witness, his absence from home, his sickness, or any other circumstances. The defendant may claim one adjournment as a matter of right, on giving security, and making oath of the absence of a material witness ; he may be entitled to others on showing sufficient cause, provided they do not exceed the ninety days.' The absent testimony or witness must be specified by the defendant, if he is required to do so by the plaintiff or Jus- tice. He is not bound to detail all the testimony, or to give the names of all the witnesses ; it is_ sufficient to give the name of one absent material witness, without whose testimo- ny he^cannot_safely proceed to trial. By doing this he makes out a case for an adjournment, and that is all that can be re- quired of him. If he refuses to name his witness, or to state where he resides, the adjournment may be denied.' If the defendant does not give the security required, al- though he complies with the statute in other respects, the ad- journment cannot be granted, and the Justice is bound to pro- ceed with the cause, j ^ /^h \ • ^'f "/J~ "When the plaintiff offers to admit the matters expected to be proved by the absent witness, the adjournment may be re- fused. And after such an offer has been made by the plain- tiff, and accepted by the defendant, the latter is precluded from asking an adjournment to enable him to procure the tes- timony of the same witness.* In the case of a defendant, against whose body, notwithstand- ing the provisions of the 30th section of the non-imprisonment act, {omte, pp. 165, 166,) an execution can be issued from a Jus- tice's Court, the security must be a bond in the penalty of one hundred dollars, to the plaintiff in the action, with such surety as the Justice shall approve, conditioned, that in case judgment ' Laws of 1838, chap. 24S, § 2 ; 2 E. 8. 239, " id. 296 ; 15 Johnson, 432. §T4; id.240, ST8. * 14 id. 841. ' i Ootren, 425. 254 NEW-TOEK JUSTICE. shall be given against such defendant at the adjourned day, or at any time thereafter, and execution be issued against his per- son, he will render himself upon such execution, before the return thereof; or in default thereof, that he or his surety will pay the judgment so recovered, with interest.' § 39. Bond for Defendant on Adjournment^ where he cam, ie Imprisoned on Execution. Know all men by these presents that we, John Doe and Hichard Koe, are held and firmly bound unto C. D. in the pe- nal sum of one hundred dollars, to be paid to the said C. D., or to his certain attorney, executors, administrators, or as- signs ; to which payment, well and truly to be made, we bind ourselves, our and each of ou.r heirs, executors, and adminis- trators, jointly and severally, firmly by these presents. Seal- ed with our seals. Dated the 28th day of November, 1852. Whereas, an action has been commenced before G. H., Esq., Justice of the Peace, by C. D., plaintiff, against A. B., defendant, and whereas the said action is adjourned until the day of , 18 , on the application of said defendant : Now, therefore, the condition of this obligation is such, that if,* in case judgment shall be given against such defendant at said adjourned day, or at any time thereafter, and execution be issued against his person, he shall render himself upon such execution, before the return thereof; or if, in default thereof, the said defendant or the said obligors shall pay the judgment so recovered, with interest ; then this obli- gation to be void, otherwise, of force. Sealed and delivered 1 John Doe. [l. s.] in presence of j Eich^vbd E,oe. [l. s.j The Justice should approve the bond and sureties, by making the following endorsement on the bond : I approve of the within bond, and of the sufficiency of the sureties therein. G. H., Justice. In any suit brought upon such bond, the plaintiff will not be entitled to recover, unless he shows an execution upon a judgment obtained in the suit in which such adjournment was had, duly issued within ten days after the time when by law the same could be issued, against the person of the de- 1 2 B. B. 289, § 76. ADJOtnJNMENT. 255 fendant, and a return thereon that such defendant could not be found.' In the case of a defendant against whose body, by the pro- visions of the non-imprisonment act, {ante, pp.lQ5, 166,)an exe- cution cannot be issued from a Justice's Court, the condition of the bond to be given by him in order to obtain tlie foregoing adjournment, must be, that no part of his property liable to be taken on execution, shall be removed, secreted, assigned, or in any way disposed of, except the necessary support of himself and family, until the plaintiff's demand shall be sat- isfied, or until the expiration of ten days after such plaintiff shall be entitled to have an execution issued on the judgment obtained in the action, if he shall obtain such judgment.' § 40. Bond for Defendant on Adjournment, where, lie camnot he Imprisoned on Execution. Know all men by these presents, that we, John Doe and liichard Eoe, \asin § 39 to the'"', and then add :~\ no part of the property of the said defeiidaiit, liable to be taken on exe- cution, shall be removed, secreted, assigned, or in any way disposed of, excejot the necessary support of himself and fam- ily, until the plaintiff"'s demand shall be satisfied, or until the expiration of ten days after such plaintiff shall be entitled to have an execution issued on the judgment obtained in said action, if he shall obtain such judgment, then this obligation to be void, otherwise, of force. John Doe. [l. s.] Sealed, &c., [as in § 39.] RiohaedEoe. [l. s.J ''^"This bond' and the Sureties ""shoulcl tie^pp'roved ay the 'Jus- tice as before. If the condition of this bond be broken, and an execution on the judgment which may be obtained by the plaintiff be returned unsatisfied in whole or in part, the plaintiff, in an action on such bond, will be entitled- to recover the amount due on the judgment.' In an action commenced by warrant, issued at the suit of a non-resident plaintiff, the defendant is entitled to an adjourn- ment, on his application, supported by his oath that he has a > 2 E. 8. 240, § TT. " id. "Laws of 1881, chap. 300, §40. 256 NIJW-TOBK JUSTICE. good defence to the action, and that he is not ready to pro- ceed to the trial thereof; but in such case, it cannot be grant- ed, unless the defendant will consent that any witness on the part of the plaintiff, who shall be then attending, may be then examined on oath by the Justice, his testimony reduced to writing, certified by the Justice, and left with him, to be read on the trial of the cause.' If a cause commenced by warrant is adjourned on the ap- plication of the defendant, he must continue, during the time of adjournment, in the custody of the constable, unless he gives the security before specified, according to Form § 39." The provisions of law before cited,{cmte,pjp. 251, 252,) in regard to an adjournment where a witness refuses to be sworn or to answer questions, and in regard to an applicant for an ad- journment exhibiting his account, if required, are applicable to an adjournment on motion of the defendant. IsTo adjournment can be allowed, without the agreement of the parties, to a time beyond ninety days from the joining of the issue in the action.^ ; • 5 '? '- '■ ' r.^'' ',.'" ''• ' '/ 1^0 suit brought, or action commenced, in any of the Dis- trict Courts in the city of New-York, abates or is discontinued by reason of the absence of any of the Justices in said city from their usual respective places of holding the said Courts, on the return day of any process, or upon the day to which any cause or proceeding is adjourned ; but the clerks of said Courts respectively have power to adjom-n such cases to such time as the Justice is in attendance upon said Court, provided that such adjournment shall exceed at no one time six days, without the mutual consent of the parties to the suit.* I ^. ^1,' 4. BUETHER ADJOURNMENTS. , ^ ,-. In all cases, a defendant is entitled to a further adjournment, upon giving security, if required, as heretofore directed, and upon proving, by his own oath or otherwise, to the satisfac- tion of the Justice, that he cannot safely proceed to trial, for 1 3 E. S. 283, § TO. * Laws of 1840, chap. ITO ; Laws of 1848, a Id. 289, § Tl. chap. 163 j Laws of 1862, chap. 824. Md. 240, § T8. FUBTHBE ADJOTJENMENTS. 2i5T want of some material testimony or witness, and that lie has used due diligence to obtain such testimony or witness.' But no adjournment can be allowed, without the agreement of the' parties, to a time beyond ninety days from the joining of the issue in the action.^ If a bond has been given upon any prior adjournment, a new bond is not necessary upon a subsequent adjournment, unless such bond be required by the Justice, or by the bail of the defendant in the prior bond.' Although the defendant has had two adjournments, he is entitled to a third, on complying with the statute, provided the ninety days from the joining of the issue have not ex- pired.' It must not only be proved to the satisfaction of the Justice, that the witness is material, but the defendant must show that he has used due diligence to obtain the witness ; and, if he fails to do this, and refuses to disclose who or where the witness is, it is proper for the Justice to refuse the adjournment.' It is usually required of the defendant to state, that he ex- pects to be able to procure the attendance of his witness on the adjourned day. As a general rule, the plaintiff cannot re- quire the defendant to state what he expects to prove by his absent witness ; but, when the defendant's conduct is such aa fairly to cast suspicion upon the iona fides of the application,, and he refuses to disclose what he expects to prove by the ab- sent witness, the Justice may, in his discretion, deny the ad- journment.' If, on the adjourned day, the defendant gives security, if required, and swears that he has material witnesses absent, that he has subpoenaed them, and used due diligence to obtain them, and expects to procure their attendance by a certain day, the Justice is bound to grant an adjournment till sugIi day, if within the ninety days.' By agreement of the parties, a cause may be adjourned for more than ninety days.' ' 2 E. S. 239, § 75. '8 Hill, 828. » Id. 240, § 78. ' 9 JobuBon, 183, 864 ; Hid. 442 ; 12 Id. 418 ; « id. § 76. 13 id. 462 ; 15 id. 482. * 2 Cowen, 425. 8 2 E. S. 240, § 78. » id.; 1 Johnson, 114; 9 id,188; 16 id. 482. 18 ' ' ■ 258 NEW-TOEE JUSTICE, 5. IRREGULAR ADJOURNMENTS. All adjournment must be regularly made, or the cause is out of Court. When made by agreement of parties, in the absence of the Justice, it is not good, although subsequently entered by him on his docket ; and if, on an adjournment so made, the defendant does not appear at the adjourned day, and judgment is rendered against him, it will be reversed.' 3 Z/ An illegal adjournment by the Justice, amounts to a dis- ' contiriuahce of the ^uit.' ^ Accordingly, where a Justice ad- journs a cause more than once on his own motion, or adjourns it at the instance of the plaintiff, after a previous adjournment, the action is discontinued.' And so it is, also, if the cause is adjourned without issue joined, unless the defendant refuses to plead ; ■" or if the Justice does not appear on the return day, and adjourns the cause by a note in writing, without signa- ture, addressed to the plaintiff;' or if the plaintiff does not appear on the return of the process,' or on the adjourned day.' In the case of Hard v. Shvpmam,^ it was held, that where an inferior court has once acquired jurisdiction, it will not lose it by a subsequent error or irregularity ; that accordingly, a Justice does not lose jurisdiction of a cause by erroneously adjourning it, contrary to the agreement of the parties ; and that a judgment subsequently rendered by the Justice is valid until reversed. The action in that case was triedbyajuiy on the 19th of July, 1847 ; the jury did not agree, and were discharged by the Justice ; while the jury were deliberating on their verdict, an agreement was made by the parties and the Justice, on the outer steps of the house where the trial was had, that, if the jury did not agree, the cause should be adjourned until the 22d of July, and a new venire be issued, re- turnable on that day ; the defendant then left the Court, and was not present when the jury came in ; the jury not agreeing, the Justice adjourned the cause to the 26th instead of the 22d, at which time the cause was called, and the plaintiff appear- ed, but the defendant did not appear ; and, after waiting one hour, the defendant not appearing, the plaintiff proceed- >10Wepdell,^7./i"i J,;- , M Johnson, 117. ■ " 8 Johnson, 891. O « J-.: j . i , , • 9 id. 140. » id; 2 id. 193. ' 15 id. 245 ; T -Wendoll, 800. * J Denlo, 175. e g Barbour, 631. lEREGTILAil ADJOTJENMSNTS. 259 ed to trial, and obtained a judgment. Mr. Justice Paige says : "Conceding the fact to be as proved by the defendant, the re- sult is that the Justice, after the jury were discharged, and while the Court was open, adjourned the cause to the 26th of July, without the consent of the defendant. This was un- doubtedly an error in the Justice. If the agreement proved by the defendant, was made in Court, and, therefore, a valid agreement, the Justice should either have adjourned the cause to the 22d of July, or should, as soon as the jury were dis- charged, have issued a new venire returnable within forty- eight hours. The Justice's adjournment of the cause to the 26th of July, under the circumstances, amounted^^to use the language of the cases,' to a discontinuance of the suit. But, according to the decision in Harton v. Auchmoody^ the Jus- tice did not, by such adjournment, lose his jurisdiction of the cause. He had jurisdiction of the cause, of the parties, and of the question of adjournment. His error was an error of judg- ment, a judicial error ; and the only consequence of the error was, that the judgment entered after the adjournment was reversible on oerUorari. Although it is said in the cases, that the adjournment of a cause by a Justice, at his own instance, or at the instance of the plaintiff, without authority, amounts to a discontinuance of the suit, yet, by this expression, noth- ing more is meant than an irregularity or error, for which the judgment subsequently entered could be avoided or reversed, on certiorari. The judgment is valid and binding until re- versed. The remedy applied in all the cases above cited bear- ing on this question, was the direct remedy by certiora/ri.^^ A judgment obtained on an irregular adjournment is, there- fore, not void, but only voidable, and is good unless set aside on appeal. 5^^-<> // //^-m^ ci^ /'^~f^ A Justice may hold his Court open for the purpose of ob- taining a jury; and he may hold it open a reasonable time to enable a party to procure ^q attendance of a witness. Two hours has been held not to be an unreasonab\e time for a party to procure a witness.' But where the Justice held the cause t)pen for twenty hours, it was held to be a discontinuance.' > 2 Johnson, 192 ; 4 id. IIT ; B id. 868 ; 8 id » 8 Johneon, 409. // ^^f^-VJ» ^U ^f^ 891 ; 9 id. 140 ; 10 Wendell, 49T. * 13 id. 469. / ' »7Sd.!W0. 260 HBW-TOEK JUSTICE. 6. "WAIVER OF IREEGULARITY. If a party appears, and goes to trial on the merits, it is a waiver of any objection to an adjournment irregularity granted ; and so, also, even if lie only cross-examines a wit- ness.' Where, after an indefinite postponement of a cause, the Justice gave written notice to the parties of the time and place when and where he would try it, and they appeared and went to trial, it was held that the discontinuance was waived.' If the Justice improperly refuses to adjourn a cause on the request of the defendant, and the defendant afterwards volun- tarily confesses judgment, this is a waiver of the previong irregularity.' An irregular adjournment cannot be objected to as errone- ous, by the party at whose instance it was granted.' If a defendant is present, and answers when called by the Justice, he does not thereby waive an irregularity in a prior adjournment, if he refuses to plead, and does not participate in the farther proceedings.' J /^ .■- l f' ll -- , ^ V. GENERAL RULES. As a general rule, the Justice must wait one hour for the appearance of the parties, and he need wait no longer, unless Bome excuse, which he shall deem reasonable, be shown, for farther indulgence." * When a party has had an adjournment for ninety days, he cannot have another adjournment.' After the jury is sworn and empannelled, an adjoumment can be granted only by consent of parties.' A Justice who acts without jurisdiction, is a trespasser; but if he has jurisdiction, an error in judgment does not subject him to an action. Therefore, if he grants an adjournment to a plaintiff who is not entitled to it, and subsequently ren- ders judgment against the defendant, and issues execution, he Cannot be sued as a trespasser.' jt'il 'U- it^ • "- '- • . . <-Uj S^ UJohnson's Onses, 101; TJohnson, 881; 9 »6Hill,428; 1 Donio, ITS. ''^I^/S*'^^ * * Id. 186 ; 8 HIU, 180. ' 20 Johnson, 809 ; unto, p. 203. •IB.499. . If '. ' 8 Johnson, 485. . » 11 Johnson, 461. » 8 id. 487 ; 7 HIU, 77. « 8 Oalnes, 166. » 7 Wendell, 200. COMMISSIONS. 2,61 An action may be adjourned, where a witness, who has been in part examined, is prevented by sickness from being farther examined ; but, if the witness is not produced on the adjourned day, his testimony should be stricken out.' CHAPTER XL OF COMMISSIONS AND SUBPCENAS. IssTiE having been joined in an action, and an adjournment had to a particular time, the next step in its progress is, to prepare for trial. A subpoena will only compel the attendance of a witness who is in the same county where the action is to be tried, or in an adjoining county. It is generally difficult to procure the attendance of a wit- ness who cannot be reached by a subpoena ; and, unless he voluntarily appears, his testimony can be obtained only by a commission. 1. COMMISSIONS. The following are the provisions of the statute in regard to the issuing of commissions by Justices of the Peace : Whenever an issue of fact shall have been joined in any ac- tion or suit before a Justice of the Peace, and it shall appear on the application of either party, that any witness not residing within the county where said suit is pending, or the county adjoining, is material in the prosecution or defence of such action or suit, the spid Justice may award a commission to one or more competent persons, authorizing them or any one of them to examine such witness on oath upon the interroga- tories settled by the said Justice, and certiiied by his approba- ■ 12 Jobneon, 299. 262 NBW-TOEK JUSTIOE. tion, entered or endorsed thereon, or by the written agreement or assent of the parties annexed to Buch commission , to take and certify the depositions of such witness, and to return the same, according to the directions given with such commission, in which commission both parties may unite.' Such commission may be granted at the instance of either party by such Justice of the Peace, at any time, upon proof that due notice of such application for such commission has been served on the adverse party at least six days before the time of making such application ; but the issuing of such commis- sion shall not postpone the trial beyond the time now author- ized by law." And whenever the defendant shall neglect to appear, or to plead in such action or suit, and the plaintiff shall make application for a commission to take the deposi- tion of a material witness for the prosecution of such action or suit, the Justice may award a commission without notice, to one or more competent persons, to examine such witness on oath, upon interrogatories proposed by the plaintiff and settled by the Justice, to take and certify the deposition of such witness, and to return the same according to the direc- tions given in such commission." The commission shall be executed and returned, as is prescribed by statute when a commission issues out of a Court of Record, and the deposi- tion and testimony taken in pursuance thereof shall be received on the trial as testimony in the cause, with the like effect as if such witness were personally examined at such trial. ' The commission may be granted at any time after issue joined, by giving six days notice to the adverse party that it will be applied for. It would be proper for the party to give notice of his application at the time of joining issue, if he desires to take the testimony of a witness by commission ; but he is not bound to do so. He may make the application at any time, even after several adjournments have been granted. He cannot, however, by doing so, postpone the trial to a time beyond ninety days from the joining of issue. Before a commission is issued, all the requirements of the > Laws of 1888, chap. i!43, § 8. laws of 1847. chap. 329. •2E.B. i!40,§T8. Md. §4. ' Laws of 1888, obap. 843, § 8, aa amouded by COMMISSIONS. 263 statute must be complied with ; and it must, therefore, be shown, on the application, that the witness resides out of the county in which the suit is pending, and out of the adjoining county, and that he is a material witness. / H% -c ' § 41. JVotioe of Application for a Commission. In Justice's Court, CD \ ■ • ■ . ( Before G. H., Esq., one of the Justices of t -D \ the Peace of the County of Sir : Take notice that an application for a commission to be directed to S. T., of the town of , in the county of , to examine on oath K. P., of the same place, as a witness in the above entitled cause, upon interrogatories to be annexed to such commission, will be made to Gr .H. Esq., at his office in the town of , on the day of , 18 , at o'clock in the noon. Dated , the day of , 18 . C. D., Plaintiff. To A. B., Defendant. •) The notice may be served by any person, but it must be served at least six days before the making of the application. The service should be personal on the adverse party ; but service upon his agent or attorney, duly authorized to act for him in the action, will be sufficient. If the adverse party, or his agent or attorney, is present when the commission is granted, and admits due service of notice, no proof of the service of notice is necessary ; otherwise, the proof must be made, either by affidavit or orally. An objection to the sufficiency of the notice of motion for a commission must be specific, and be taken at the time of the application ; it is too late to object after the commission has been executed and returned." § 42. Affidavit of Service of Notice. In Justice's Court, CD 1 ■ . ■, (Before G. H., Esq., one of the Justices of \ Ty \ the Peace of the county of County ss : William Kandall being duly sworn, says, that > 8 Hill, 499. Mi NEW-TOEK JUSTICE. OB the 3l8t day of December, 1852, he served a notice of "which the annexed is a copy, upon A. B., the defendant therein named, by delivering the same to him, [or, to E. F., his attorney,] personally. Sworn, &c., [as in § 12.] "William Rahdall. If proof of the service of the notice is made orally, the fol- lowing oath should be administered by the Justice : You do swear, that you will true answers make to such questions as shall be put to you, touching the service of no- tice of an application for a commission in this cause. At the time named in the notice, and after proving its ser- vice, the party applying for the commission, must not only prove that the witness does not reside within the county in which the suit is pending, or the adjoining county, but he must establish the materiality of the witness. Proof of materiality and of residence need not necessarily be made by the party himself who applies. The fact that he himself is not a resident of the county where the suit is pend- ing, and is absent therefrom, is a sufficient reason why the af- fidavit in support of the application may be made by his at- torney. The affidavit of the attorney, that the witness did not reside in the same or the adjoining county, but in the State of Vir- ginia, and that, as the deponent was informed and believed to be true, he was material in the prosecution of the action, and that without his testimony the party could not safely proceed to trial, was held to be sufficient to authorize the issuing of a commission.' Proof that the witness is or may he material, and proof that he is in a certain county, without showing that he resides there, is insufficient." Where no laches is imputable to a party applying for a commission, and there is nothing to cast suspicion upon the application, he is not bound to state what he expects to prove by the witness whose testimony he seeks to procure.' But if the party states what he expects to prove, and the adverse party offers to admit it, a commission should not be granted. > 7 Bartonr, 681. > T Bartour, 681. « 7 Hill, 77. COMMISSIONS. 265' because no time can be wanted to procure testimony which is admitted/ It rests in the sound discretion of the Justice, whether or not to issue a commission. "When, therefore, it appears to him satisfactorily, that there are no sufficient reasons for issu- ing a commission, or when the application is obviously made for delay, or when the party states what he expects to prove, and it is clear that the testimony can in no wise be material, the Justice ought not to grant a commission. A form of an affidavit showing the materiality and resi- dence of the witness is unnecessary. It may follow the lan- guage of the statute, as just cited. If oral proof is made, the following oath should be admin- istered by the Justice to the person making it : You do swear, that you will true answers make to such questions as shall be put to you, touching the necessity of is- suing a commission in this cause. Satisfactory proof having been made, the Justice should issue the commission, directed to the person named in the no- tice, unless it appear to the Justice that he is an improper person to execute the commission, and in that case it should be directed to some other competent person. § 42*. Commission. County, ss : To S. T., of the of , ii?the county of : Whereas it appears to me, t^e undersigned, a Justice of the Peace of the town of , in thQ county of- ,that K. P., of the of -"^^ aforesaid,*is a material witness in the prosecution [or, defence] of a certain ac- tion now depending before me, between C. D., plaintiff, and A. B., defendant : Now, therefore, confiding in your prudence and fidelity, and in pursuance of the statute, 1 have appoint- ed, and by these presents do appoint you, commissioner to examine the said witness ; and for that purpose, do authorize you, at certain days and places, to be by you appointed, dili- gently to examine the said witness, on the interrogatories hereto annexed, on oath to be taken before you ; and to cause such examination to be reduced to writing, and signed by such ' 14 Johnson, 341. 266 NEW-TOEK JUSTICE. witness, and certified by yourself, and to return tlie sarne, an- nexed hereto, to me, enclosed under your seal, according to the directions herewith given you. Given under my band, at the aforesaid, the day of , 18 . , G. H., Justice of the Peace. Where the names of the foreign witnesses are not known to the party, but they are sufficiently described, and the evi- dence is shown to be material, the commission need not name them ; thus, it may require the examination of " the attorney- general of " a particular State.' The parties may agree upon the interrogatories, by their written agreement to be annexed to the commission ; but if they do not, the interrogatories on both sides should be drawn up and submitted to the Justice for settlement. As to the form of the interrogatories, they must embrace the subject of inquiry, and be governed by the rules applica- ble to oral evidence. Each party is allowed to insert any question, pertinent to the cause, which he shall propose. The parties are also allowed to insert a general interrogatory, whether the witness knows any other matter or thing, ma- terial to the party, besides what he has been particularly in- terrogated unto ; under which the witness may state facts not previously called for by the particular interrogatories." If the general interrogatory be not answered, the deposi- tion cannot be read ; it being an undoubted principle, that the witness must answer substantially all the interrogatories, for otherwise it is impossible to say that he has told the whole truth.'^.?- f-p ^/y. !.£, /^^^^ . ' \ 43. Interrogatories, and Cross-Interrogatories. Tiistice's Court, CD \ ^^'„^^U I Before G. H., one of the Justices of the A. B. and E. F. f ^^^°^ °^ *^^ county of Interrogatories to be administered to K. P., a witness to be produced, sworn and examined on the part and behalf of C. D., plaintiff, in an action now depending before G. H., Esq., a Justice of the Peace of the county of Cayuga, against A. t2Hall,60a. / I ' Graham's PracUoe,48T.«2. t^^S^ri'-."^, 2-tf bation upon them, as follows : I hereby certify that I have settled the within interroga- tories and cross-interrogatories, and that I approve of the same. G. H., Justice. The commission, with the interrogatories, as so agreed upon or approved, annexed, must be sent to the commissioner who is to execute it. As we have already seen, the statute provides that the com- mission shall be executed and returned, as is prescribed by statute when a commission issues out of a Court of Record.' The manner of returning it may be fixed by stipulation ; oth- erwise, the provisions of the statute must be complied with.' The Justice must direct the manner in which the commie- sion shall be returned, whether by mail or by an agent. The mode of returning the commission is highly important, for the purpose of guarding against frauds, and no substantial re- quirement of the statute can be dispensed with ; if, therefore, the Justice omit to give directions as to the return, the depo- sition cannot be read in evidence.^ ^^yi-^^^J-- •2-/'^ The Justice must endorse on the commission a direction as to its return, as follows : The within commission is to be returned to me at , in the county of , my place of residence, by mail, [ 8 Barlonr, 288 ; 1 Hill, 249. < 2 E. 8. 894, § 16. OOMMISBIONS. 269 by them, shall be the truth, the whole truth, and nothing but the truth : 2. They shall cause the examination of each witness to be reduced to writing, and to be subscribed by him, and certified by such of the commissioners as are present at the taking of the same : 3. If any exhibits are produced and proved before them, they shall be annexed to the depositions to which they relate, and shall in like manner be subscribed by the witness proving the same, and shall be certified by the commissioners : 4. The commissioners shall subscribe their names to each sheet of the depositions taken by them ; they shall annex all the depositions and exliibits to the commission, upon which their return shall be endorsed ; and they shall close them up under their seals, and shall address the same, when so closed, to the Justice from whom the commission issued, at his place of residence : 5. If there is a direction on the commission to return the same by mail, they shall immediately deposit the packet so directed in the nearest post-ofBce : 6. If there be a direction on the commission to return the same by an agent of the party who sued out the same, the packet so directed shall be delivered to such agent." When a commission is issued from a Court of Record, the statute requires a copy of the foregoing directions to be an- nexed to the commission/ It is not imperative, in a Justice's Court, that a copy of them should be annexed, but it is the most convenient way of advising the commissioner of his duty.'' "When the commission is executed in this State, the com- missioners have the same power to issue subpoenas, swear witnesses, and compel their attendance, as Justices of the Peace have.' § 44. Commissioner' 8 8um/mons to Witness. County, ss : "Whereas the undersigned has received a commission, issued by G. H., Esq., a Justice of the Peace of the county of , > 2 E. B. 394, § 16. ' Laws of 1841, chap. 188, § 2. • a Oowen'8 Treatise, 8S0. 270 NEW-TOEK JUSTICE. directed to him, for the examination of R. P., a witness in a cause depending before the said Justice, between C. D., plain- tiflf, and A. B., defendant : You, the said R. P., are therefore required to be and appear before me, the said commissioner, at my dwelling house, in the town of , on, &c., then and there to be examined, and to testify the truth, according to the best of your knowledge, for and on behalf of the said plaintiff, [or, defendant,] and herein you are not to fail. Dated the day of , 18 . S. T. § 45. Oath to Witness exa/inined on a Commission. You do swear, that the answers to be given by you to the interrogatories to be proposed to you by the commissioner here present, under a commission directed to him, issued by G. H., Esq., a Justice of the Peace of the county of , in a certain action there depending before him, between C. D., plaintiff, and A. B., defendant, shall be the truth, the whole truth, and nothing but the truth. § 46. Deposition of Witness iefore a ComTnissioner. Deposition of E. P., a witness produced, sworn and exam- ined, on oath, on the day of , 18 , at, &c., by virtue of a commission issued to S. T., by Gr. H., Esq., a Justice of the Peace of the county of , in a certain cause depending before the said Justice, between C. D., plaintiff", and A. B., defendant. The said E. P. deposes as follows : To the first interroga- tory, he saith : [give answer of witness.] To the second interrogatory, he saith, &c. Subscribed and sworn before me, ) R. P. this day of , 18 . j S. T., Commissioner. § 47. Endorsement on cm ExMMt produced lefore a Ccir.mis- sioner. / . '' iL-* / On the day of ? 18 , at the execution of a commis- sion issued by p-. H., Esq., a Justice of the Peace of the coun- ty of , for the examination of R. P., a witness in a cer- tain action depending before the said Justice, between C. D., plaintiff, and A. B., defendant, the within paper writing marked "A," was produced and shown to the said R. P., a witness sworn and examined, and by him deposed unto at uie time of his examination as a witness under such commission. S. T., Commissioner. It will have been seen that, by the 4th subdivision of the SinjPCEITAS. 2^1 foregoing statutory directions for executing a commission, tlie commissioners must endorse their return upon the commission. This is indispensable ; otherwise, the commission cannot be read in evidence.' § 48. Metwrn to he endorsed on Commission. I, S. T., commissioner appointed by the within commission, do hereby make return thereto, and certify, that in pursuance thereof, t did, on the day named in the annexed deposition, diligently examine K. P., the witness within named, on the interrogatories and cross-interrogatories hereto annexed, on oath publicly administered by me to the said E. P., and that I caused such examination to be reduced to writing and to be subscribed by the said K. P., which examination is hereto an- 1 nexed. , . §• ^"a Commissioner. '^^'''^^heneve'r' any allien pending in any one of the District Courts in the city of New-York, has been commenced by the actual service of process, or where the defendant has appear- ed in the action, either party may have the testimony of any witness who is about to leave the city and county of !N"ew- Tork, and will probably continue absent when the testimony is required, taken conditionally, to be used on the trial of such action, in the same manner and with the like etfect as provided by article one, title three, chapter seven, part three of the Revised Statutes, entitled, " Of taking conditionally the testimony of witnesses within this State.'" The Marine Court of the city of New-York is authorized to issue commissions to take the testimony of witnesses residing out of the city and county of New- York, to be read on the trials of actions pending in said Court, in the same manner as Justices of the Peace are authorized to do ; and that power in the Marine Court is also extended so as to authorize commis- sions to issue out of the State.' 2. SUBPCENAS. (1.) The issuing of a suhpoma. If either party desires the attendance of witnesses on the adjourned day, he should apply to the Justice for a subpoena for such witnesses. ' T Barbour, 27t. SS^^i^l^ ^yU- ' Laws of 1852, chap. 889. ' I-aws of 185S, chap. 824, § 2 ; 2 E. S. 891. 272 NEW-TOEK JTJSTIOE. Any Justice of the Peace may issue subpoenas to compel the attendance of witnesses to give evidence on any trial de- pending before himself or any other Justice. Such subpoena is valid to compel the attendance of a witness being in the same county where the cause is to be tried, or being in an adjoining county ; and in no other case.' But a Justice can- not issue any subpoena to compel the attendance of witnesses before another Justice, in any suit, unless the person apply- ing, proves by his own oath, or the oath of some other per- son, that such suit is actually pending before such other Justice.' § 49. Subpmna. Town of , ) County, f ^® • The people of the State of New-York, to E. F., L.. M., &c. &c., Greeting. "We command you, and each of you, that all business and excuses being laid aside, you and eacli of you be and appear, in your proper persons, before the undersigned, one of the Justices of the Peace of the said town, [or, before , one of the Justices of the Peace of the town of in the county of ,] at his office in , in the said county, on the day of , at o'clock in the noon, then and there to testify those things which you or either of you know, in a certain action now depending before the said Jus- tice, between C. D., plaintiff, and, A. B., defendant, on the part of the defendant [ or, plaintiff.] \_Tf a witness is regui- red to produce some pwper or other written evidence, insert here : And you, L. M., are further commanded to bring with you, and then and there produce in evidence, a certain agreement in writing, &c., or, as the case may ie, desonhing the paper.} Hereof fail not at your peril. Witness my hand, this day of 18 . G. H., Justice of the Peace. When books or papers are directed by the subpoena to be produced, it is called a subpoena duces tecum. The thing re- quired to be produced should be particularly described ; and a general notice to produce all letters, papers and documents touching or concerning the matter in dispute, is insufficient to require the production of a particular letter. i'^ " .- s ^ • 1 2 K. S. 240, 8 80. ' id. % 81. SUBPCENAS. 2Y3 A witness is not bound to produce books or papers unless they are in his possession and under his control ; therefore, a clerk in a bank cannot be compelled, on a subposna, to pro- duce its books.' An attorney cannot be compelled to produce the papers of his client, on a subpoena ; but notice must be given to produce them, and that, on failure to do so, secondary evidence will be given of their contents." (2.) The service of a svhjpcena. A subpoena may be served, either by a constable or by any other person. It must be served by reading the same, or stating the contents to the, witness, and by paying or tender- ing the fees allowed by law for one day's attendance of such witness.^ • A party may have one or more subpoenas ; and, after the Justice has inserted oneiname, the party may insert as many others a-s he chooses.* '^^''"'' "»' ^^ ■'.'"., ' .' _.. .^„, A witness is not bound to attend, nor, if in attendance, is he obliged to be sworn, before his fees have been paid. If the amount of fees paid a witness is insufficient, although he receives it without objection, the service of the subpoena is not good ; for it is a common case that a witness does not know, when the subpoena is served, how much he is entitled to receive. Parties should understand that they must pay witnesses enough at their peril. If a witness attends for one day in pursuance of a subpoena, he has a right to depart on the next day, unless another day's fees are paid him ; but it is not necessary to serve him with a new subpoena.' Witnesses from the same county, are entitled to twelve and and a half cents, and from any other place than the same county, to twenty-five cents, for every day's actual attendance." A witness is entitled to receive his fees from the party call- ing him, but he cannot recover them from the Justice.' A witness may expressly waive payment of his fees, and then > 5 Cowen; 168. • 8 Denio, 3T ; 4 Id. TBi » T Wendell 216. • 2 E. S. 266, j 228. >2K. 8. 240,§82. ' 1 Hill, T6. < Holt's N. P. Eep. 82«. 19 374: NEW-TOEK JUSTICE. he is bound to attend." If he attends without a subpoena, and is sworn, he is entitled to his fees." The subpoena must be personally served, and if the wit- ness be a married woman, the service must be upon her, and the fees be paid to her personally, and not to her husband.' A witness may waive the reading of a subpoena, or a state- ment of its contents. But if he attempts to evade the hear- ing of it, an unsuccessful attempt to read it, or to state its contents, will be good service.* (3.) Attachment to compel the attendoMoe of a witness. Whenever it appears to the satisfaction of the Justice, by proof made before him, that any gprsgn duly subpoenaed to appear before him, in any cause, has refused or neglected, without just cause, to attend as a witness, in conformity to such subpoena, and that the testimony of such witness is ma- terial, the Justice has power to issue an attachment to com- pel the attendance of such witness." The proof thus required to obtain an attachment, may be made by the affidavit of the party in the suit applying for such attachment, or by other competent testimony, to the sat- isfaction of the Justice before whom such suit is pendiag.' It has been held that this affida/oit need not be an oath in wri- ting, according to the strict and technical sense of that word, but that the application for the attachment and the oath in support of it may both of them be oral.' The constable's return is evidence of the service of the sub- poena. "When the subpoena is served by any other person, parol proof of service is sufficient ; and the non-attendance of the witness may be proved by parol.' The Justice should be satisfied that the witness has been duly subpoenaed, and neg- lects or refuses to attend ; but even then he cannot issue an attachment unless it is proved to his satisfaction, by compe- tent testimony, that the testimony of the witness is material." 1 4 Denlo, T6; Oro. Car. 622, MO. * &*- Lf-0^:»- Uf* Laws of 1834, chap. 285. V /./ci . -^ « 16 Johnson, 260. ' ' 12 Barbour, 62T. » Oro Eliz. 122. » 12 WendoU, W. * 2 Cowen's TreatlBO, 814. • 8 Denlo, 2T. •2E. S. 241,§88. / ATTACHMENT FOE WITNESS. 2Y5 If the subpoena is served by a constable lie sbould endorse bis return on it thus : The within subpoena was personally served by me on Wil- liam Jones, the witness within named, on the 29th day of De- cember, 1852. Stephen Gifford, Constable. § 50. Affidavit to oitmn Attachment. ^ County, ss: ^.i,^^ /^>,/C^J'^Ai>/. C. D., the plaintiff named in the annexed subpoena, being duly sworn, says, that on the day of , 18 , at the town of , in said county, he personally served the said subpoena on L. M., a witness therein named, by reading the same [or, stating the contents thereof] to him, at the same time paying [or, tendering] to him the sum of twelve and a half cents ; that the said L. M. is a material witness for this deponent on the trial of the cause mentioned in said subpoena ; and that he, the said L. M., has neglected [or, refuses] Va at- tend the the trial of said cause. C. D. Sworn, &c., [as in, § 12.] § 51. Oath to Pa/rty, tojprme Service of Si^cma. Ton do swear, that you will true answers make to such questions as shall be put to you, touching the service of the subposna in this cause. ^- ', ^ ^ , : - j"/\/, .. § 52. Attachment for Witness. County, ss : The People of the State of New York, to any Constable of said County, greeting : We command you to attach L. M., and bring him before the undersigned, a Justice of the Peace of said county, at his oflBce in the town of , forthwith, [or, as the case may 5«,] to testify those things which he may know, in a certain cause now depending before the said Justice, between C. D., plain- tiff, and A. B., defendant, on the part of the plaintiff, [or, de- fendant ;] and also to answer all such matters as shall be ob- j ected against him, for that he, having been duly subpoenaed to attend the trial of said cause, has refused [or, neglected] to attend in conformity to such subpoena ; and have you then there this precept. Witness, my hand, this day of , 18 . G. H., Justice of the Peace. The attachment is issued for the purpose of compelling the 276 NEW-TOEK JUSTICE. attendance of the witness, that he may be sworn on the trial of the cause. If, therefore, the witness be near the place of trial, so that the attachment may be served and returned in a short time, it may be made returnable forthwith, and the Jus- tice may continue the cause open until the attachment is served and returned. But if the witness be at such a distance from the place of trial that the attachment cannot be served and returned- ^n a reasonable time for continuing the cause open, the proper course will be to adjourn the trial to such time as will be sufficient for the service and return of the attachment, and to make the attachment returnable at that time.' The attachment must be executed in the same manner as a warrant, that is, the witness must be arrested by the consta- ble and taken before the Justice who issued the attachment ;' and the fees of the officers for issuing and serving the same, must be paid by the person against whom the attachment is issued, unless he shows reasonable cause, to the satisfaction of the Justice, for his omission to attend ; in which case the par- ty requiring the attachment must pay all costs of such attach- ment and of the service of the same.' If the Justice determines that the witness shall pay the costs, and he refuses to pay them, the party requiring the at- tachment may collect them from the witness, by an action ; but the party is liable in the iirst instance to pay the costs of the constable and Justice. (4.) Duty of a witness, and what will excuse non- attendance. "We have seen that a witness is excused for non-attendance, if his fees are not paid.* The inability of a witness to attend Court must be decided in reference to the modes of travelling which are in use in the community. If there are modes not impracticable, and it does not appear but that tlie witness could have made use of them, his non-attendance cannot be attributed to inability." 1 1 Edwards' Justice. 79. < Ante, p. 273. » 2 K. S. 289, § 21. • 8 Iredell, 11. ' id. 241, § 81 DTJTY OF WmfESS. 277 A witness imist have a reasonable time to travel to Court according to the usual modes of public conveyance, without being required to travel on the Sabbath ; but he is not enti- tled to time at the rate of thirty miles a day. Therefore where a witness was subpoenaed on Friday evening to attend Court on the following Monday morning, at a distance of one hun- dred and fourteen miles from his residence, and was unable to reach the Court at that time, by the ordinary modes of conj veyance, without travelling on Sunday, it was held that he was not liable in an action, to the party who subpoenaed him, for non-attendance, although a special agreement had bee& made that no longer notice should be given than was abso- lutely necessary.' The process of subpoena demands great and extraordinary effort on the part of the witness to obey. Insolvency and pov- erty form no excuse in the abstract. If received at all, they must be taken in connection with the situation of the witness' family, or as showing his utter inability to defray his expen- ses. Serious sickness in his family, such as would prevent a prudent father or husband from leaving home on his own im- portant business, would save him from the imputation of a contempt, and perhaps from an action. But when the sub- poena allows him full time to attend, he should struggle to get ready, as he would to go abroad on his own pressing business. If inevitably disappointed, after exhausting every reasonable expedient, he ought certainly to be excused from ^the payment of a penalty, which presupposes some degree of neglect, at least.^ (5.) When damages may he recovered from a defaulting witness. Every person duly subpoenaed as a witness, and neglecting or refusing to appear or testify, is liable to the party in whose behalf he has been subpoenaed, for all damages which such party sustains, by reason of such non-appearance or refusal.' Damages can be recovered only when the witness who has been duly subpoenaed, and fails to attend, is a material wit- 1 18 Wendell, 49. ag E. 8. 242, §90. /-' ' 16 id. 602. 278 NEW-TOEK JTJSTIOE. ness, and the party subpoenaing him has sustained actual damage by his non-attendance ; and a party who causes a witness to be subpoenaed, who is known to him not to be ma- terial, for the purpose of annoyance, is guilty of a contempt of Court.' An action may be maintained against a defaulting witness for the damages sustained by the plaintiff, though a jury was not sworn in the cause in which the witness was subpoenaed ; it is enough that the witness failed to attend without any reasonable excuse, and that the plaintiff suffered damage in consequence of his absence." But a party who volimtaril/y submits to a nonsuit, when he can obtain in another mode the same evidence which the absent witness would have giveni, is not entitled to recover damages." (6.) When a defcmltrng witness may he fined and j imprisoned. A Witness, as we have seen, may be compelled to attend by attachment, and is liable in damages for non-attendance ; a fine may also be imposed upon him. It is provided by statute, as follows : Every person duly subpoenaed as a witness, who shall not appear, or appearing, shall refjise to testify, shall forfeit, for the use of the poor of the town, for every such non-appearance or refusal, (unless some reasonable cause or excuse shall be shown on his oath or the oath of some other person,) such fine, not less than eixty-two cdnts, nor more than ten dollars, as the Justice before whom prosecution therefor shall be had, shall think reasonable to impose.* Such fine may be imposed by the Justice, if the witness be present and have an opportunity of being heard against the imposition thereof.' K the witness, being present, offer no reasonable excuse for his non-attendance, it is the duty of the Justice to impose such fine, not less than sixty-two cents, and not more than ten dol- lars, as he may deem proper under the circumstances. Mr. Justice Cowen, in his Ti-eatise, (vol. 2, page 319,) says, that if the witness is absent, or if the proceeding is instituted > 8 Denlo, 27. « 2 K. 8. 241, § 8S. «4id. T6. 'Id. §86. •11 Wendell, 686. PUNISHMENT OF DEFAULTING WITNESS. 279 before a Justice other than the one before whom the suit in which the penalty was incurred was depending, a summons must be issued against the defaulting witness ; and he gives a form for such summons. He further says, that no form for the summons is prescribed by the statute, nor is the time of its service or return regulated, but that a reasonable time should intervene between its date and return, and it should be served a sufficient time before the day of appearance for the witness to attend ; that the service should be personal, by reading or stating the contents of the summons ; that the constable's return of service would be sufficient to authorize the Justice to proceed ; and that, unless the witness appears at the time and place at which the summons is made returnable, and admits due service of the subpoena, the Justice should require proof of the service and of the non-attendance of the wit- ness, which proof may be made by oral testimony. These views imply, that if the witness on whom the sum- mons is served does not appear on its return, the Justice may receive proof of its service, and of the service of the sub- poena, and of the non-attendance of the witness in pursuance thereof, and proceed to impose the fine m the absence of the witness. But it seems quite clear that this view is erroneous. The statute, before quoted, says, that such fine may be im- posed by the Justice, " if the witness be present and have an opportunity of being heard against the imposition thereof." It is not enough that the witness should be served with a summons to appear, and thus have an opportunity to be heard ; but he must also be actually present, or the Justice has no jurisdiction to fine him. If the statute had read or instead of and, there would perhaps hav^ beeii&ome ground for tjie vifiwtakemby Judge Cowen. x*^^ ^^/^-m-^t-^^ * ^Sof willthe wiffie^^scape punishment for non-attendance, or refusal to testify, by the construction which we think the sound one. If the witness is brought up on attachment, the Justice may fine him for his delinquency, while he is present in Court under the attachment. Or if, being present, he refuses to testify, the Justice may call on him on the spot to show cause, and proceed to fine him. And besides, the wit- ness is liable in damages for non-attendance. 280 NEW-YOEK JUSTICE. The Justice imposing the fine must make up and enter in his docket a minute of the conviction and of the cause thereof, and the same will be deemed a judgment, in all respects, at the suit of the overseers of the poor of the town.' § 53. Minute of Conviction. County ss : L. M., having been duly subpoenaed as a witness, to attend before me, to give evidence on the trial of an action depending before me between C. D., plaintiff, and A. B., defendant, on the part of the plaintiff, \or, defendant,] at my office in the town of , in said county, on the day of , 1853, at o'clock in the noon, and not appearing before me in pursuance of such subpo3na, [or, and having appeared before me in pursuance of such subpcena, but having refused to testify,] and being now present before me, and having an opportunity of being heard against the imposition on him of a fine, and no reasonable cause or excuse being shown on his oath, or on the oath of any other person, for such non-attendance, \or, refusal,] is convicted of such non-attendance, \or, refusal,] and a fine of ten dollars is im- posed upon him for such non-attendance, [or, refusal,] and the costs of this conviction are fixed by me at the sum of two dollars. Dated , 1853. G. H., Justice. Upon the imposition of such fine, and in default of payment thereof, with costs, the Justice must forthwith issue an exe- cution to any constable of the county, directing him to levy such fine, with costs, of the goods and chattels of the delin- quent, and, for want thereof, to take and convey him to the jail of the county, there to remain until he shall pay such fine and costs ; and the keeper of such jail is required to keep such delinquent in close custody, in such jail, imtil the fine and costs be paid ; but such imprisonment cannot exceed thirty The'Cbuntf Court, 'upon good cause shown^ ma^f; remit sijch fine or any part thereof, and may discharge the person froni imprisonment.' § 54. ExeGutiooi for fine and costs. County, ss : To any Constable of the said county, Greeting : > a E. 8. 241, § 8T. s id. 487, % 43. •Id. J88. PUinSHMENT OF DEFAULTING WITNFSS. 281 "Whereas L. M. was duly subpoenaed as a witness to attend before me, the undersigned, a Justice of the Peace in and for the said county, to give evidence on the trial of an action depending before me, between C. D., plaintiff, and A. B., defendant, on the part of the plaintiff, [or, defendant,] at my office in the town of in said county, on the day of ,1853, at o'clock in the noon, and whereas the said L. M. did not appear before me in pursuance of such subpoena, \or, having appeared before me in pursuance of such subpoena, refused to testify,] and whereas the said L. M., being present before me on the day of , 1853, and having then and there had an opportimity of being heard against the imposition on him of a fine, and no reason- able cause or excuse having been shown on his oath, or on the oath of any other person, tor such non-attendance, \or, refu- sal,] was then and there convicted by me of such non-attend- ance, \or, refusal,] and a fine of ten dollars was thereupon im- posed on him by me for such non-attendance \ar, refusal,] and the costs of such conviction were thereupon fixed by me at the sum of two dollars ; and whereas I thereupon made up and entered in my docket a minute of such conviction and of the cause thereof; and whereas neither the said fine nor the said costs have been paid, nor any part of the same : ITow, therefore, you are hereby commanded to levy the said fine and costs of the goods and chattels of the said L. M., and, for want thereof, to take and convey the said L. M. to the jail of the said county, there to remain until he shall pay such fine and costs ; and the keeper of the said jail is hereby required to keep the said L. M. in close custody, in said jail, until the fine and costs aforesaid be paid, such im- prisonment, however, not to exceed the period of thirty days. Witness my hand at the town of , in said county, the day of , 1853. G. H., Justice. When the money is collected on the execution, the consta ble must pay the money and return the execution to the Jus- tice, and the Justice must pay over the amount of fine imposed, to the overseers of the poor of the town, for the use of the poor.' When a witness attending before any Justice, in any cause, refuses to be sworn, in any form prescribed by law, or to an- swer any pertinent and proper question, and the party at whose instance he attended makes oath that the testimony of ■ 2 E. S. 241, § 89. 282 NEW-TOEK JUSTICE. such, witness is so far material, that without it he cannot safe- ly proceed in the trial of such cause, such Justice may, by warrant, commit such witness to the jail of the county.' Such warrant must specify the cause for which the same is issued, and, if it be for refusing to answer any question, such question must be specified therein ; and such witness must be closely confined pursuant to such warrant, until he submits to be sworn or to answer, as the case may be." The Justice must thereupon adjourn such cause at the request of the party in whose favor such witness attended, from time to time, until such witness shall testify in the cause, or be dead or insane.' Some remarks upon these last provisions, and Forms for car- rying them into effect, will be found in the next Chapter, un- der the head of Punishment of witnesses who refuse to testify. CHAPTER III. OF THE TRIAL OF ISSUES OF FACT. An issue of fact arises in a Justice's Court, upon a material allegation in the complaint controverted in the answer, or upon new matter in the answer constituting a defence.* A trial is the judicial examination of such an issue.' We intend to consider in this chapter the regular proceed- ings on the trial of an issue of fact. Under the head of Evi- dence,' we shall hereafter consider the manner of examining witnesses, their credibility, the mode of impeaching them, and the question as to what evidence should be received and what rejected. > 2 E. S. 274, § 279. * Code, § 250, and % 64, subd. 4. » Id. § 280. • id. § 262. ' Id. S 281. • Port I, Chap. XIII. TEIAIi OF ISSUES OF FACT. 283 When issue lias been joined, the action may be tried by the parties themselves, or either of them may appear by at- torney.' And it may be tried with or without a jury. After issue joined, and before the Justice proceeds to an investigation of the merits of the cause, by an examination of a- witness, or the hearing of any other testimony, either of the parties, or the attorney of either of them, may demand of the Justice, that the cause be tried by a jury." Whenever issue has been joined in a suit before a Justice, if no jury is demanded by either party, the Justice must pro- ceed to try such issue, to hear the proofs and allegations of the parties, and to determine the same, according to law and equity, as the very right of the case may appear." And, when- ever a defendant who has been personally served with a simi- mons, or who has procured an adjournment without having joined issue, neglects to appear and join issue, the Justice must proceed to hear the proofs and allegations of the plain- tiff, and determine the same as above prescribed.* 1. GENERAL RULES. The trial of a cause ought, in general, to be commenced at the time appointed, or within one hour of it ; but it may be postponed by the Justice for good cause.' The sittings of every Court within this State must be pub- lic, and every citizen may freely attend the same.' We have before spoken of the disqualifications of a Justice.'' It is also provided by statute, that no judge of any Court can sit as such, in any cause to which he is a party, or in which he is interested, or in which he would be excluded from be- ing a juror by reason of consanguinity or afiinity to either of the parties ;° that no judge can decide, or take part in the de- cision of, any question, which shall have been argued in the Court, when he was not present and sitting therein as a judge ;' that no judge can practise, or act as attorney or counsel, in the Court of which he is a judge ;'° that no judge can have any 1 2 E 8. aS2, §§ 89, it « 2 E. 8. 2T4, § 1. * Id. 242, % 93. ' Ante pp. 22 to 26. s id. § 91. » 2 E. 8. 2T5, § 2. « id. i 92. • id. ' Ante, pp. 208, 204 >» id. § 4. 284 ITEW-TOEK JtTSTICE. partner practising in the Court of which he is a judge ; ' and that no judge can have a voice in the decision of any cause in which he has been counsel or attorney." These disquali- fications apply to a Justice. A Justice can never be a wit- ness in his own Court ; and we have already stated ' what steps must be taken by a defendant when the Justice is a ma- terial witness for him. If the plaintiff requires the testimony of the Justice, it is his own fault if he commences his suit be- fore him; he should have proceeded before another Justice. The Justice who tries the cause must swear the witnesses ; * and he cannot decide on his own knowledge of facts, but only on the evidence adduced.' A Justice may hold his Court open as long as may be neces- sary, for the purpose of summoning a jury.' So too, a cause may be adjourned a reasonable time to procure the attendance of witnesses. Two hours has been held not to be an abuse of the Justice's discretion ; ' but an adjournment for twenty hours has been held to be a discontinuance of the suit.' Where a trial is had before a Justice with a jury, in an ac- tion for a wrong, he should advise the jury to acquit a defend- ant against whom no evidence has been given ; but if he dis- charges him himself, it is mere informality, and not error.' Such defendant, when discharged, may be examined as a witness in the cause.'" If the trial be without a jury, the Justice may, when the plaintiff's proofs are closed, discharge a defendant against whom no evidence has been given ; but he should not enter judgment for him until the cause is finish- ed, for the others may be acquitted, and there can be but one judgment for costs." The law is well settled, that one of several defendants joint- ly sued for a wrong, may be acquitted, and sworn for his co- defendants ; and it makes no difference, whether the defend- ants have answered separately or jointly. But a defendant cannot be acquitted except in the absence of all evidence tend- ing to implicate him. If there is any, even the slightest evi- > 2 K. S. 276, § B. ? •?.>.-■. ' 8 Johnson, 409. " LawB of 181T, chap. 280, § 81. 6 13 li 4C9. > Ante, pp. 205 to 207. » IS "Wendell, 141. < 1 Johnson, 620. ■•id. •214189; 10 id. 260. " 8 Hill, 104 • 2 Calnee, 184. TEIAl BY JTTKT. 285 dence against him, lie cannot be discharged as a party, and received as a witness. The want of evidence against a party, in order to entitle him to be a witness, should be so glaring and obvious, as to afford strong grounds of belief that he was arbitrarily made a defendant, to prevent his testimony/ 2. TRIAL BY JURY. After issue joined, and before the Justice proceeds to an in- vestigation of the merits of the cause, by an examination of a witness, or the hearing of any other testimony, either one of the parties, or the attorney of either of them, may demand of the Justice that the cause be tried by a jury." Where the Justice tells the plaintiff to go on to trial, after both parties have avowed themselves ready, and, on being asked, the defendant admits part of the plaintiff's account, and a witness for the plaintiff is partly sworn, it is too late to demand a trial by jury.' But, where a Justice merely inspects a bill which is the subject of the action, and no proof is called for or offered, it is not such a commencement of the trial of a cause as to preclude either party from demanding a trial by jury." a: a venire, directed to any constable of the county wherein the cause is to be tried, commanding him to summon twelve good and lawful men, in the town where such Justice resides, qual- ified to serve as jurors, and not exempt from serving on juries in Courts of Record, who shall be in no wise of kin to the plaintiff or defendant, nor interested in such suit, to appear before such Justice, at a time and place to be named therein, to make a jury for the trial of the action between the parties named m such -yewwe. yJ;2i::ZZZ. Qa^^ /"i-^y /.ci^f ii-^a^ The parties may, however, agree upon any number of ju- 3 rors, less than six, to try the cause ; and the Justice must then direct in the venire, the summoning of so many jurors as shall 1 8 Hill, 104, and note a. < IJolinsoii, 142. » 2 E. S. 242, § 93. « 3 E. S. 242, § 94. ' 1 Cowen, 235. 286 KEW-TOEK JUSTICE, be double tbe number so agreed upon.' And such an agree- ment is good, tbougb not made until after the return of tbe venire, and when the jury ie drawn, if the parties proceed to trial pursuant to the agreement." If the action in which such issue is joined, be between two towns, the vem/re must direct the constable to summon twelve good and lawful men of the county, qualified and not exempt and not interested, as above provided, to make a jury for the trial of such action. ° § 55. Ventve. Town of , I County, \ ^^• To any constable of said County, Greeting : The People of the State of New-York command you to sum- mon twelve good and lawful men, in the town of , qualified to serve as jurors, and not exempt from serving on juries in Courts of Kecord, and who are in no wise of kin to either party, nor interested in the suit hereinafter mentioned, to appear before me, one of the Justices of the Peace of said town, at my office in said town, on the day of , 18 , at o'clock in the noon, to make a jury for the trial of an action arising on contract, [or, as the cause of action may he^ between C. D., plaintifi", and A. B., defendant: And you are also required to make a list of the persons sum- moned, which you will certify, and annex to this venire, and make return thereof to me. Witness, &c., [as in § 54. j In an action against joint debtors, a venire mentioning only the defendant brought into Court, without taking notice of the others, is sufficient.* A defective venire is cured if the party makes no objection at the time, but proceeds to trial." The Justice issuing a venire, must deliver it, or cause it to be -delivered, to some constable of tl^^ county, disinterested between the parties, and against whom no reasonable objec- tion shall have been made by either party.' "When the Jus- tice is satisfied that there is any reasonable objection against a constable, he ought not to give the venire to him to be exe- 1 2 E. S. 248, § 98. < 4 Johnson, 222. ^ / / a 1 Donlo, 28. » 2 Gaines, 184; 8 id. 278. C •/ [r , ' , , ^\ • a E. S. 248, § 96, • 2 B. S. 248, 5 9T. TENIEE. 287 cuted. If the constable is personally hostile to either party, or if he is on such terms of personal friendship with either party, as to throw suspicion upon his integrity, or lead to the belief that he will practice favoritism in the selection of the jury, the Justice should not give him the venire. If either party objects to a particular constable's serving a veni/re, the party objecting should state his reasons under oath, or the reasons may be proved by some other person than the party. For that purpose, the Justice may administer the fol- lowing oath : § 56. Oath on Objection to Constahle's Serving the Veni/re. You do swear, that you will true answers make to such questions as shall be put to you, touching the reason why H. C. should not execute the venire in this cause. No constable who has been employed to act, or who has acted, as attorney or agent in respect to any claim or matter in controversy, can summon any jury, in any Justice's Court, which shall be summoned to try any question in relation to any such claim or matter.' yj,if ^ J^/^ ') } The constable to whom any venire is delivered, must exe- cute the same fairly and impartially ; and must not summon any person whom he has reason to believe biased or preju- diced for or against either of the parties. He must summon the jury personally, and must make a list of the persons sum- moned, which he must certify and annex to the venire, and return to the Justice." A venire must be served personally, and may be served like a subposna, by reading it to the juror, or stating its contentsi Jurors, like witnesses, ought to have a reasonable notice, that their attendance upon Court may be as little prejudicial to themselves as possible.^ Where a venire is demanded by eithey party, the Justice may deliver it himself to the constable, to be executed ; but if he delivers it to the party, and the latter does not appear at the time to which the cause is adjourned for trial, and the iLaw3ofl84T, chap. 470, §58. vj- ' '^-'» 1 Strange, 509. 9 2B,S. 248, $98. 288 NEW-TOEK JUSTICE. venwe is not returned, the Justice may consider the suppress- ion of the venire by the party, as a waiver of the trial by jury, and proceed to hear and try the cause himself, as if no venire had been demanded or issued/ ■*'• ' '' '''i' >'• ^ ■■< ^'"^d < •• '- If the venire be not returned at the time appointed for trial, it is not a reason for nonsuiting the plaintiff, but another venire may be issued.'' If the first venire has not been car- ried into effect, the Justice may issue another venire without the former having been returned f and, if issued at the in- stance of the party who obtained the first venire, it will be considered as his process, and he will not be allowed to ob- ject to the form of it." When the venire, has not been returned, and the party does not demand another venire, but goes to trial, he thereby waives a trial by jury.° It is the duty of the constable to make a list of the persons whom he has summoned, and certify it, and annex it to the venire, and return the whole to the Justice. The certificate should be endorsed on the list, as follows : " I certify that, by virtue of the annexed precept, I have personally summoned as jurors the several persons named in the within list. Dated 1853. H. C, Constable. When a venire is issued, the costs of the venire abide the event of the suit, but the party calling for a jury is bound to pay the jurors' fees before they render their verdict.' Every person who is duly summoned as a juror, and does not appear, nor render a reasonable excuse for his default, or appearing refuses to serve, is subject to the same fine, to be prosecuted for, and collected with costs, in the same manner, and applied to the same use, as is provided in respect to a person subpoenaed as a witness, and not appearing, or ap- pearing and refusing to testify.' And the retm-n of the con- stable on the venire is evidence that the juror has been sum- moned.' For the manner of fining a defaulting witness, see cmU, pp. 278 to 282. ^ Z.^ /U^ ffTX> ^ ^^^>^-^ 4^ ~ 1 19 Johnson. SM. l'' ^/W.^ ^C » T Johnson, 198. f t^^^-i^t. //**. ' 7 id. 198.r'V<^«. « i,.' 3'iif ' ' 18 id. 131. » 8 id. 460 ; 2 Cainea, 184. , "f / ' 2 E. S. 175, § 112. 4 Id, '14 Johnson, 481, QUALIFICATIONS OF JUEOES. 289 It is illegal for the Justice to try the cause without a jury, after a venire has been issued, unless by consent of the parties. (3.) Qualifications amd exemptions of jv/rors. By statute/ the following persons are qualified to serve as jurors : 1. Male inhabiants of the town, not exempt from serving on j uries ; 2. Of the age of twenty-one years, or upwards, and under sixty years old ; 3. Who are at the time assessed for personal property be- longing to them in their own right, to the amount of two hun- dred and fifty dollars, or who shall have a freehold estate in real property in the county, belonging to them in their own right, or in the right of their wives, to the value of one hun^ 4. in the possession"^ 6t their natural laculties, and not in-*^ firm or decrepid ; 6. Free from all legal exceptions, of fair character, of ap- proved integrity, of sound judgment and well-informed. Every person residing in either of the counties of Niagara, Erie, Chautauque, Cattaraugus, Allegany, Genesee, Orleans, Monroe, Livingston, Jefferson, Lewis, St. Lawrence, Steuben and Eranklin, who does not possess either of the qualifica- tions specified in the third of the above subdivisions, but is qualified in all other respects, and who shall have been as- sessed on the last assessment roll of the town for land in his possession which he holds under contract for the purchase thereof, upon which improvements shall have been made to the value of one hundred and fifty dollars, and who owns such improvements, is qualified to serve as a juror." Every person residing on the New Stockbridge tract, in the towns of V emon and Augusta, in the county of Oneida, and Lenox and Smithfield, in the county of Madison, who is in possession of lands under a contract for purchase, and is worth one hundred and fifty dollars in personal property, or shall have made im- provements upon such lands to that amount, is, if otherwise qualified according to law, qualified to serve as a juror in any 12E. 8. 411,§18. 2id.§14. 20 290 NEW-TOEK JUSTICE. Court liolden before any Justice of the Peace within the town.' In the city of New- York, all persons otherwise duly quali- fied, are qual'Sed jurors, whether they have been assessed or not." No inhabitant of any town, city or county, is disqualified as a juror or witness in any cause brought to recover any pen- alty or forfeiture, on the ground that such penalty or forfeit- ure is to be applied for the benefit of such town, city or coun- ty, or for the benefit of the poor thereof; nor is any officer, on such ground|^ disqualified from serving any process for the summonin'g'o^fi jury in such cause.' Nor, in penal actions for the recove'iy of any sum, is it a good cause of challenge to the juroi's summoned, or to any oflicer summoning them, that such juror or officer is liable to pay taxes in any town or county which may be benefitted by such recovery." The jurors must reside in the town wheve the Justice re- sides, except, as we have before seen, where the action is be- tween two towns. Idiots, insane persons, aliens,' and persons convicted of in- famous crimes are disqualified, although they possess the other qualifications. The following persons are exempt by statute from serving on juries : Every collector of tolls, the clerks of each collect- or, not exceeding two, having the collector's certificate that they are actually employed by him, all superintendents of re- pairs, lock-tenders, inspectors of boats, and weigh-masters, while actually engaged in their respective employments on the canals, while the same are navigable ;" the superintendent and each of his deputies, and all persons employed in attend- ance upon pny works for the manufacturing of coarse salt, (and the connui.- ^ion or appointment in writing of any such officer or depui) , and the certificate of any owner or agent of any coarse salt manufactory, that any person is employed or engaged in attending upon such manufactory, is evidence of the facts stated therein ;)' the resident officers of the State lu- > Laws of 1329, ciap. 67. e Laws of 184S, cbap. 116, § 13. 2 Laws of 1847, clup. 496, § 1. « 1 K. S. 260, § 187. 3 2E. B, 661, §2. ' Id. 27S, § 163. * id. 420, § 6o. EXEMPTIONS OE JUEOES. 291 natic asylum, and all attendants and assistants actually em- ployed therein, during the time of such employment, (and the certificate of the si;perintendent is evidence of the fact of such employment ;)' all general and staff ofiicers, all field officers, and all commissioned and non-commissioned officers, musi- cians and privates of the uniformed corps of the State, during the time they shall perform military duty f the officers and members of the Auburn and Sing Sing Guards, so long as they continue to be members of such companies, and the members of the fire company attached to the State prison at Auburn, so long as they continue members, (up'on the certifi- cate of the board of inspectors ;)' the keepers of every coun- ty or State prison, and all persons employed in any such pris- on, during their continuance in office;* Seventh Day Baptists and Jews, on Saturday ;' keepers of poor-houses and alms- houses ;' aliens ;' firemen who are regularly enrolled and rec- ognized by the constituted authorities of the several cities and villages of this State, during the time of their service, and forever, after they have served five years, ° (but in the city of !N"ew-Tork, no fireman is exempt, unless lie actually per- forms all the duty of a fireman in his company, and, to enti- tle him to such exemption, he must produce a certificate of the foreman or other chief officer of his company, that he is a faithful and an acting member.)' The statute further provides," that the Court shall discharge any person from serving on a jury in the following cases : 1. When it shall satisfactorily appear that such person is not, at the time, the owner, in his own right, or in the right of his wife, of a freehold estate in real property, situated within the county, of the value of one hundred and fifty dollars, and is not the owner of personal property to the value of two hun- dred and fifty dollars, and, in the counties specified in the preceding fourteenth section, {ante, p. 289,) that such person is not possessed of the property qualification therein required; 2. When it shall appear that such person is under twenty- 1 Laws of 1843, chap. 185, § 10. « 1 E. 8. 631, § T2. ' Laws of 1847, chap. 290, § 48, as amended ' Laws of 1846, chap. IIB, § 12 ; 1 R. 3. T21 by Laws of 1851, chap. 180. § SO. ' Laws of 1847, chap. 460, §§ 116, 180. s x,^^s of 1848, chap. 188. * id. § 148. • Laws of 1847, chap. 495, § 18. ' id. chap. 849, § 1. " 2 E. 8. 416, § 88. 292 NBW-YOEK JTSTIOE. one years of age, or over sixty years of age ; or that he is not in possession of any of his rational faculties ; 3. When there is any legal exception against such person ; 4. "When such person is a non-commissioned officer, musi- , cian or private, of any uniform company or troop; and is duly equipped and uniformed, according to law, and shall claim such exemption. The evidence of such exemption shall be the certificate of the commanding officer of the company or troop, that the person claiming the same is a member of such company, and is duly equipped and uni- formed, according to law. Such certificate must be dated within three months of the time of presenting the same ; and the signature must be verified by oath. Every such certifi- cate must be filed with the Court to which it is ofiered ; 5. When such person is a member of any company of firemen, duly organized according to law ; 6. When such person is in the actual employmen*: of any glass, cotton, linen, woolen, or iron manufacturing company, by the year, month, or season ; 7. When such person is a superintendent, engineer, or col- lector of any canal authorized by the laws of this State, any portion of which shall be actually constructed and navigated ; 8. When such person is a minister of the gospel, or teacher in any college or academy, or when such person is or shall be specially exempted by law from serving on juries. The statute further provides,' that the Court to which any person shall be returned as a juror, shall excuse such juror from serving at such Court, whenever it shall appear : 1. That he is a practising physician, and has patients re- quiring his attention ; 2. That he is a surrogate, or Justice of the Peace, or exe- cutes any other civil office, the duties of which are, at the time, inconsistent with his attendance as a juror; 3. That he is a teacher in any school, actually employed and serving as such ; 4. When, for any other reason, the interests of the public, or of the individual juror, will be materially injm-ed by such • a E. 8. 416, § 86. DEAWmG THE JTJET. 293 attendance ; or his own health, or that of any memher of his family, requires his absence from such Court. (3.) Brawhig of the jury. The JTory having been summoned in the manner heretofore directed, and the parties and Justice being ready for trial, and the jury having appeared, the next duty of the Justice is to draw the jury. He should first, however, enter in his docket the names of the jurors who appear, and of those who do not appear. At the trial of the cause, the names of the persons returned as jurors, and who appear, must be respectively written on several and distinct pieces of paper, as nearly of one size as may be ; and the constable, in the presence of the Justice, must roll up or fold such pieces of paper, as nearly as may be in the same manner, and put them together in a box, or some convenient thing.' The Justice must then draw out six, (or such number as the parties may have agreed upon,) of such papers, one after another, and if any of the persons whose names are so drawn are challenged and set aside, then siich further number must be drawn, as will make up the number required, after all legal causes of challenge allowed by the Justice. The persons so drawn, appearing and approved as indifferent, must compose the jury to try the cause.'' If a sufficient number of competent jurors is not drawn, the Justice may supply the deficiency by directing the con- stable to summon any of the bystanders, or others, who may be competent, and against whom no cause of challenge shall appear, to act as jurors in the cause.' If the constable to whom the venire has been delivered, does not return the same as thereby required, or if a full jury is not obtained in the manner above specified, the Justice must issue a new venire.^ The Justice may continue to issue venires until a jury is formed ; but on a new venire, the jurors are to be called and sworn as they appear, without being ballotted for. Any new »3E,8. 248, §99. "id. §101. »ii 5100. Hi. §102. 294 NEW-TOEK JUSTICE. venire may be in the same form as Form § 55, before given, ex- cept that, where the new venire is issued for part of a jury, if; should order the constable, instead of twelve, to summon fowr (or such other number as may be necessary) good cmd lawful men, die, to make four of a jury, c&o. Before the jury is sworn, the entire jury, or any member of it, may be challenged. (4.) Challenges to jurors. It is provided by statute, that upon the trials of any issue or issues of fact, joined in a civil action, each party shall be entitled peremptorily to challenge two of the persons drawn as jurors for such trials.' Either party may challenge the a/rray, that is, the whole panel returned by the oflScer, on account of some supposed partiality or irregularity in summoning, returning or draw- ing the jury ; and, if that fails, he can have recourse to the challenge to the polls, that is, a challenge to each particular juror. A challenge to the array is either principal or for favor ; j)rincipal, when it is based on the ground of gross or palpa- ble partiality or unfairness ; for famor, when it is on account of some supposed partiality in the constable, as, if there is a relationship between one of the parties and the officer who summoned the jury. The principal challenge is determined by the Court, whose decision is conclusive. The challenge for favor is investigated by triers, whose verdict is final. In either case, the whole panel is set aside, if the challenge is sustained. It is a good cause of challenge to the array, that the jury were summoned by a constable who acts as attorney of the adverse party ; but, if the party challenging has expressly assented to their being summoned by such constable, he can- not afterwards challenge the array on that ground." A Justice has no right, on his own motion, without any exception being taken by either party, to challenge the panel of jurors, and issue a new venire^ >LawBof 184T, clmp. 184, §l7'*i , MS id. 469. "10 Johnson, 107. CHALLENGES TO JUEOES. 295 Challenges to tlie polls, also, are principal, or for favor. A principal challenge may be on account of some defect in the qualifications of the juror; on account of some partiality presumed from relationship; or on account of incapacity arising from a conviction for an infamous crime, or otherwise. A challenge to a juror for favor, is when the juror is not so palpably partial as to be obnoxious to a principal challenge for that cause, yet there are reasonable grounds to suspect that he v^ill act under prejudice or bias. It is a good cause of principal challenge to a juror, that he has previously given an opinion on the question in controversy between the parties.' But it must be a fixed and settled opinion, and not a conditional one. It must be an opinion founded on his own knowledge, or on information from those who are acquainted with the facts, and not on mere "^^oiKis a good causeOT challenge to a juroi^tliat he is not a freeholder of the town ; * and the fact may be tried by the Court on the examination of the juror under oath." The Jus- tice ought to exclude a dranken man from the jury,^and also from being a witness.' <^^ -^ -^ dSC-^i^- -^ ^~''?-**^ >^ A challenge to the array may be made at any time before any of the jurors are sworn; and a challenge to the polls at any time before the juror challenged is sworn, but after he is sworn, it is too late.' The challenges may be either oral or in writing. A principal challenge, either to the array or to the polls, is tried by the Justice alone, on the testimony of witnesses.' The following is the oath to be administered to the wit- nesses, on the trial of all challenges : Yoii do swear that you will true answers make to such ques- tions as may be put to you, touching the challenge depending. The juror may also be sworn, and he is bound to answer » 1 Johnson, 816 ; 3 Donio, 121./^^^./£ rf"7/, • 16 Id. "180. » 6 Cowen, 654. ' 2 Cowen, 430. s 7 id. 108. '17 Johnson, 133. * 11 Johnson, 168. « 9 id. 260. 296 NEW-TOEK JUSTICE. the same questions that other witnesses are compelled to answer. The oath to the juror may be as follows : , You do swear that you will true answers make to such questions as may be put to you, touching your competency as a juror between John Doe, plaintiff, and Eichard Eoe, de- fendant. If the challenge be to the array for favor, the Justice must appoint two triers. They may be selected from the jury, or other proper persons may be appointed. The following oath may be administered to the triers on the challenge to the array for favor : You do swear that you will well and truly try this issue of challenge to the array of the jurors in this action, between John Doe, plaintiff, and Kichard Hoe, defendant, and a true finding make according to evidence. A challenge to a juror for favor is decided by triers, or, if the adverse party consents, by the Justice. If such consent be once given, it cannot be revoked, and a demand made for triers.' In the absence of such consent, the challenge is tried thus : If two jurors have been already called and admitted without object! on, 'they must try the challenge ; if not, the Justice must appoint two indifferent persons to try it, who are called triers. If the triers try one juror, and he is found indif- ferent, he and the two triers must try the next ; and when two jurors are sworn upon the jury, they become triers in the case of all subsequent challenges, and supersede the persons previously sworn as triers." The following is the oath to be administered to those who try a challenge to a juror for favor :' You do swear that you will well and truly try, and truly jind, whether John Brown, the juror challenged, "stands indif- ferent between John Doe, plaintiff, and Richard Eoe, de- fendant. If the juror is found indifferent, he is immediately to be sworn on the jury, unless challenged peremptorily. If he is I 21 "Wendell, 609. ' 4 Denio, 9. ' Graham's Practice, 26T. EVIDEK-OE. 297 found not indifferent, the Justice must proceed to swear the next juror, if he is not challenged. If a juror be challenged and rejected, he cannot afterwards be sworn as a talesman." (5.) Swearing the jury. The Justice must administer to each juror an oath or affirma- tion in the following form :' You do swear, \or, affirm,] well and truly to try the matter in difference between John Doe, plaintifi', and Eichard Eoe, defendant, and, unless discharged by the Justice, a true ver- dict to give, according to evidence. After the jury are duly sworn, they must sit together, and hear the proofs and allegations of the parties, which must be delivered publicly, in their presence. ° (6.). Statement of the cause of action. After the jury have been sworn, the plaintiff should state, in a concise manner, his cause of action, the facts which he expects to prove, and, if he can anticipate it, the character of the defence; so that the jury may understand the natilre of the action which they are to try, and be enabled the better to appreciate the testimony which may be offered. Though the plaintiff usually begins the case, it is not always so ; for, whichever party is to maintain the affirmative of the issue, is entitled, to the opening statement. ^ ^ ''>-^t- ^2 . Or-tt^y^ i> C A ' id. § 104. 298 NEW-TOEK JOTTIOE. A party in the suit, or having an interest in the verdict, may be a witness to prove the death or absence beyond the reach of a subpoena of the Justice, of a subscribing witness to, or the loss of, any instrument, wliich shall come in question on the trial, in order to introduce other proof of the execution or contents of such instrument ; but in no other case, without the consent of the parties.' If a witness, on being produced, is objected to as incompe- tent, such objection must be tried and determined by the Justice. Evidence may be giveti in support of, or against such objection, as in other cases ; or the proposed witness may be examined on oath by the party objecting, and if so examined, no other testimony can be received from either party, as to the competency of such witness." Upon the application of a party to a suit before any Justice of the Peace, a writ of habeas corpus may be issued by any Justice of the Supreme Court, or any officer authorized to per- form the duties of such Justice, to bring any prisoner confined in the jail of the same county, or the county next adjoining that where such Justice of the Peace may reside, before him, to be examined as a witness.' The application must be in wri- ting, verified by affidavit, and must state the title and nature of the suit or proceeding in regard to which the testimony of such prisoner is desired, and that the testimony of such pris- oner is material and necessary to such party on the trial or hearing of such suit or proceeding, as he is advised by coim- sel, and verily believes." "Whenever any person is in execu- tion on any civil process, or committed on any criminal charge, and a habeas corjms is issued to bring the body of such pris- oner before any Court to testify, or to answer for any con- tempt, or any other matter, and it is returned upon the writ that the prisoner is charged in the execution, or committed as aforesaid, he must be remanded, after having testified; and, if any order or commitment be made against such prisoner, he must be so committed to the prison from which he was taken." 1 2 E. 8. 2-14, § 100. « id. % 2. » Id; § 107. • ' id. § 5. » Id. 659, S i. SWEAEma WITNESSES. 299 (8.) Swearing witnesses. Tlie witnesses must be sworn by the Justice wbo tries the cause.' Every person offered as a witness, before any testimony be given by him, must be duly swoi-n or aflirmed, that the evi- dence he shall give relating to the matter in difference be- tween , plaintiff', and , defendant, shall be the truth, the whole truth, and nothing but the truth.' The usual mode of administering oaths, by the person who swears laying his hand upon and kissing the Gospels, must be observed in all cases in which an oath is administered accord- ing to law, except in the cases otherwise provided, as hereaf- ter mentioned.' The following is the oath to be administered to a witness : § 57. Oath of Witness, upon the Gospels. You do swear, that the evidence you shall give, relating to this matter in difference between 0. D., plaintiff, and A. B., defendant, shall be the truth, the whole truth, and nothing but the truth. Every person who desires it, must be permitted to swear in the following form, and, while so swearing, such person may or may not hold up his hand, in his discretion.* § 58. The Same, not on the Gospels. Tou do swear, in the presence of the ever-living God, that, &c., [as in § 57, to the end.] Every person who declares that he has conscientious scru- ples against taking any oath, or swearing in any form, must be permitted to make his solemn declaration or affirmation in the following form :' § 59. Affirmation of Witness. Tou do solemnly, sincerely and truly declare and affirm, that, &c., [as in § 57, to the end.] Whenever the Court before which any person is offered as 1 1 Johnson, 520. * id. § 83. = 2 E. B. 244, § 108. , » id § 81 ' id. 407, § 82. 300 NEW-TOEK JUSTICE. a witness, is satisfied that sucli person has any peculiar mode of swearing, connected with, or in addition to, the laying of his hand upon the Gospels and kissing the same, which is more solemn and obligatory in the opinion of such person, the Court may, in its discretion, adopt such mode of swearing such person.' ^ £ ^ /t „ Every person believing in any other than the Christian re- ligion, must be sworn according to the peculiar ceremonies of his religion, if there be any such ceremonies, instead of any of the modes above prescribed.^ Some observations on the question of the exclusion of wit- nesses on the ground of religious belief, will be found hereaf- ter, in the chapter on Evidence, under the head of Corwpeterv- cy of Witnesses.^ The Court before whom an infant, or a person apparently of weak intellect, is produced as a witness, may examine such person, to ascertain his capacity, and the extent of his reli- gious and other knowledge ; and the Court may also enquire of any person what are the peculiar ceremonies observed by him in swearing, which he deems most obligatory.* In all cases in which an affidavit is required or authorized by law, the same may be taken in any of the forms above prescribed, in the several cases above specified; and every person swearing, affirming, or declaring, in any such form, or in any form authorized by law, will be deemed to have been lawfully sworn, and to be guilty of perjury for corruptly or falsely swearing, affirming or declaring in any such form, in the same manner as if he had sworn by laying his hand upon the Gospels, and kissing the same.' (9.) Punishment of witnesses who refuse to testify. When a witness attending before any Justice, in any cause, refuses to be sworn in any form prescribed by law, or to an- swer any pertinent or proper question, and the party at whose instance he attended makes oath, that the testimony of such witness is so far material, that without it he cannot safely > S K. 8. 40T, § 85. * 2 R 8. 408, § 89. «id. 408, §80. Md.§90. » Post, Part I, Chap. XIII, Sutd. 14. PTINISHMENT OF WITNESSES. 301 proceed in the trial of such cause, sucli Justice may by war- rant commit sucli witness to the jail of the county/ Such warrant must specify the cause for which the same is issued, and, if it be for refusing to answer any question, such question must be specified therein ; and such witness must be closely confined, pursuant to such warrant, until he submits to be sworn or to answer, as the case may be.'' The Justice must thereupon adjourn such cause at the request of the party in whose favor such witness attended, from time to time, until such witness shall testify in the cause, or be dead or insane.' To authorize a proceeding under these provisions, the wit- ness must, in all cases, be in actual attendance before the Jus- tice ; and cannot be committed, except upon the oath of the party at whose instance he attended, as to the materiality of his testimony. Before committing a witness, the Justice should be satisfi- ed that he has been duly subpoenaed, for, if he has not been, he is not bound to be sworn ; but if he has been sworn, al- though not subpoenaed, he is bound to testify. The service the subpoena may be proved by the return of the constable, or the oath of the party, or of any other person, in the manner heretofore laid down {ante, p. 274,) for making the same proof to obtain an attachment against a witness. The following is the form of oath to be administered to the party in regard to the materiality of the witness' testimony : Tou do swear that you will true answers make to such questions as may be put to you, touching the materiality of the testimony of James Brown, as a witness in the action now on trial before me, between John Doe, plaintiff, and Eichard Eoe, defendant. If it appears from the examination of the party, that the tes- timony of the witness is so far material that without it the party cannot safely proceed in the trial, and the witness refu- ses to be sworn, or, if sworn, to answer any pertinent and proper question, the Justice must then commit the witness to jail by a warrant. '2E. S. 2T4,§279. ' id. § 281. "id. §280. 302 NEW-TOEK roSTIOE. § 60. Warrant of Commitment. County, ) Town of , \ ^^■ The People of the State of JSTcw-York, to any constable of said county, and to the keeper of the jail of said county : Whereas, in the trial of an action tliis day before me, (J, H., a Justice of the Peace in and for naid count}'', in which John Doe was plaintilf, and Richard Hoc, defendant, James Brown, then being present before me,* was proved to my satisfaction to have been dulj' subpcenaed to attend as a witness before me on said trial on the part of the said plain- tiff', and whereas the said James Brown rei'used to be sworn as such witness in any form prescribed by law ; \_oi\ •>/ the witness, after heing sworn, refasesto answer any pertinent and jor(ij>er qnestion, proceed as almve to the * and, then add : hav- ing been duly sworn as a witness on the part of the plaintiff on such trial, refused to answer the following ({iiestion, which question was decided by me to be pertinent and proper, viz : " Did you, on the day of 1853, at , sec the plaintiff pay the defendant twenty dollars T"] and the said John Doe having made oath before me that the testimo- ny of the said James Brown was so far material that without it he could not safely proceed in the trial of said action : ^s ow, therefore, you, the said constable, arc hereby commanded ti_) commit the said James Brown to the jail of the county of , and you, the keeper of the said jail, are hereby commanded to receive the said James Brown into your cus- tody in the said jail, and closely confine him there, pursuant to this warrant, imtil he shall submit to be sworn as such wit- ness, \or, until he shall submit to answer the said question,] or shall be discharged according to due course of law. Givenunder my hand, the day of , 1853. G. II., justice of the Peace. (10.) Examination of 'plaintiff'' s witnesses. The plaintiff m;, introduce such witnesses as he deems ne- cessary to establish li;.; car.FC of action. After he has inter- rogated them, the adverse paity has a right to cross-examine them. ' / • Either party may object to the introduclion of any evidence, or to the putting of any question, whit^li he tliiiiks to be im- proper. When an objection is nuule, the question i^ submit- ted to the Justice, with or without argument, who must deter- mine whether the testimony offered is admissible, or whether the question put is a proper one. NONSUIT. 303 The Justice should be carefulneither to reject proper evi- dence, nor to admit that which is improper, for either error may aiFord ground for reversing his judgment. The admis- sion of improper evidence may have an influence upon honest jurors, who are unconscious of the impressions which they receive ; and although the Justice, on discovering his error, directs the jury to disregard the evidence, yej; that will not When -the plaintiif has concluded the introduction of his ev- idence, he rests his cause, /^'l^' (11.) Nonsuit. If the plaintiff is satisfied that the evidence which he has offered is insufficient to sustain his action, he may withdraw his suit, or submit to a nonsuit. If the cause is tried before a Justice without a jury, the plaintiff may submit to a non- suit, at any time before or after the witnesses have been ex- amined, and before the cause has been submitted to the Jus- tice ; but not after the cause is under advisement, though before four days have elapsed." If it is tried by a jury, he may sub- mit to a nonsuit at any time before their verdict is an- nounced by their foreman.' And, by f;\iling to appear to hear their verdict when they come in, he submits to a nonsuit." After the Justice has submitted the cause to the jury, he cannot take it from them, and nonsuit the plaintiff.' When the cause is tried by the Justice, he may, after the plaintiff" has concluded his testimony, nonsuit the plaintiff, when, in his opinion, the testimony does not sustain the ac- tion. ° So, too, when the cause is tried by a jury, the Justice may grant a nonsuit on the application of the defendant, if, in his judgment, the plaintiff has failed, upon his own show- ing, to make out his case, whether on the ground of the in- competency, or of the insufficiency, of his evidence.' It is discretionary with the Justice to permit the plaintiff to offer additional testimony, after the defendant has applied 1 13 Johnson, 850. « 8 Johnson, 430. s 10 id. S63 ; 11 id. 457. • 12 Johnson, 299. » id. ; B id. 346. ' 10 Wendell, 519. < 2 E. S. 246, % 119. / 1/ ?l ijj. 3 ^/ 304 NEW-TOEK JUSTICE. for a nonsuit ; but he may, in his discretion, grant the privi- lege to either party, after the evidence Jbas been closed.' f/x A nonsuit should be granted only m a clear case ; and though the proof to sustain the cause of action is only slight and doubtful, yet it is the safer course for the Justice to per- mit it to go to the jury. If the Justice takes time to make up his judgment, he can- not nonsuit Ae plaintiff;. -and e-C'en thou^gh he calls it a nonsuit in his docket, yet the judgment is final." (12.) Statement of the defence. After the witnesses on the part of the plaintiff have been examined, if the defendant does not apply for a nonsuit, or if he fails in his application, he should state his defence in a clear and concise manner, and proceed to the examination of his witnesses. (13.) Examination of defendant's witnesses. The defendant's witnesses are to be examined in the same manner as the witnesses on the part of the plaintiff, and may be cross-examined by the plaintiff. After -the defendant has introduced all his evidence, the plaintiff may give evidence to rebut it, or to impeach the defendant's witnesses. (14.) Amendment of pleadings. During the progress of the trial, the parties may find it ne- cessary to amend their pleadings. The Code provides, that the pleadings may be amended at any time during the trial, when by such amendment substantial justice will be promo- ted ; and that the Court may, also, in its discretion, require, as a condition of an amendment, the payment of costs to the adverse party.' Where the plaintiff claims an amount beyond the jurisdic- tion of the Justice, the plaintiff may amend the complaint so as to bring the action within the jurisdiction of the Justice, though the defendant objects.'' For further observations on the siibject of amendments, see ante, p. 218. ■ i-'C,- 1 2 Johnaon's Oases, 818.-<' -■ ' ' - /'?,' ' Code, % 64, subd. 11. » 10 Wendell, 620 ; 8 Hill, 287. ■* * Dento, 670. EETIEING OF THE JUET. 305 (15.) Summing vj). "When the evidence is closed, the parties, or their counsel, may address the jury ; the plaintiff usually, but the defend- ant when he holds the afErmative, having the light to the closing argument. The Justice may, if he chooses, charge the jury on ques- tions of law, but he is not bound to do so. If, however, he does charge them, and charges erroneously, advantage of the error can be taken on appeal ;' though not if it is obvious that his charge could not materially have influenced the jury.^ Where the whole matter is left to the jury by the Justice, without instruction, they are judges of the law as well as of the fact ; but in that case, if they judge wrong upon a point of law, the error may be corrected on appeal.' (16.) Hetiring of the jury. After-hearing the proofs ai;d allegations, the jury must be kept together in some convenient place, under the charge of a constable, until they all agree upon tlieir verdict ; and ft r that purpose, the Justice must administer to such constable the following oath :* You sweai', in the presence of Alniiglity GoU, tliafc you will, to the utmost of your ability, keep the persons sworn as jurors on this trial, together, in some private and convenient place, without any meat or drink, except such as shall be ordered by me ; that you will not suffer any communication, orally or otherwise, to be made to them ; that you will not communicate with them yourself, orally or otherwise, unless by my order, or to ask them whether they have agreed on their verdict, until they shall be discharged ; and that you will not, before they render their verdict, com- municate to any person the state of their deliberations, or the verdict they have agreed on. Where the jury do not retire to consider their verdict, it is unnecessary that a constable be sworn to attend them." A constable must be sworn to attend the jury, if they re- tire, and it is a fatal objection, on appeal, if the return does 1 6 Hill, 326. * 2 E. 8. 244, § 109. 5 1 Bartonr, 185. • 8 Johnson, 4S7. » 6 Hill, 826. 21 306 NEW-TOEK JUSTIOE. not show that a constable was sworn.' The administration of an erroneous oath to the constable is alike fatal.'' ^ Ur c^A't '■^ A Justice has no right, during the trial, to permit the par- ties to treat the jury with liquor ;' but where the jury drank liquor during the suspension of the trial, but not to excess, and the liquor was not furnished by one party more than the other, it was held to be no cause for reversing the judgment.' And if the parties consent that the jury may retire without a constable to attend them, they waive any irregularity of the jury in drinking liquor, and in admitting other persons into the room while deliberating on their verdict.' It was formerly held that, if a juror drank even a trifling quantity of liquor, the judgment should be set aside." But this principle has been overruled, and it is now held, that the mere fact of drinl?;ing spirituous liquors by a juror, during the progress of a trial, is not per se sufficient to set aside the verdict, but there must be some reason to suspect that the drinking had some influence on the flnal result of the cause. If a juror should become incapacitated on account of intox- ication, the verdict would be set aside.' If a juror leave his seat for a short time, without the knowl- edge of the Court or parties, but no testimony is given during his absence, and he holds communication with no one on the subject of the cause, though this be a contempt of Court, yet it will not avoid the verdict." Mr. Justice Cowen, in a note to the case of S??iith v. Thompso7i° has collected a great variety of English and American cases, in relation to the conduct of jurors, and the necessity of their being kept together, and entirely separate from all other persons. A Justice has no right to go into the jury-room while the jury are deliberating, and give them instructions, without the express consent of the parties.'" The jury have no right to take into their possession the min- utes of one of the counsel, without the consent of both parties ; ' 0/ '5 > 2 Calnes, 221 ; 11 Johnson, 442 ; Id. 683. ' T Cowen, 662. '' ■^ ' '5 2 Caincs, 184; 8 Id. 140. ' 1 Hill, 20T. » 16 JohnBon, 465. ' 3 Cowcn, 865. « 1 Cowen, 111. ' 1 ii- 221. • 11 Johnson, 134 "4 Denio, 115 ; 13 Johnson, 48T ; 7 id, 200. EECEIVING THE TEEDICT. 307 and in a case where they had the miniites of the successful party, the judgment was reversed.' But if the Justice goes ihato the jury-roon^ at the request of the jury, and with the knowledge and consent of the defendant, his cdnseiit that the Justice may read the testimony will be implied." It is erroneous for the Justice to enter the jury-room, and explain the testimony of a witness on a point of fact, without consent ;' or to give his minutes of evidence to the jury, vsdth- out consent.' Eut, after the jury have retired to consider their verdict, the Justice may, if the parties are present, give the jury further instructions as to the law of the case.' It was held not to be error, where the jury sent for the Jus- tice, and asked hira if they could add anything to the demand of the plaintiif, and he answered "no," and immediately reti- red." But it is erroneous for the Justice, after the jury have re- tired, and in the absence of the parties, to answer their in- quiry as to whether a certain fact has been given in evi- dence.' Where the jury came into Court, and requested the Justice to read over the testimony of a witness, which he did, but, owing to his not having taken down all that the witness said, a part of it, only relating remotely to the merits, was not mentioned to the jury, it was held, that as neither party at the time had called the Justice's attention to the omission, it was not a ground for reversing the judgment, especially as there was no reason to suppose that the omission was intentional.' After a jury have retired to consider their verdict, they may come back into Court, and hear evidence as to any matter about which they have doubt, if both parties are present, and neither objects.' (17.) Seceiving the verdict. "When the jurors have agreed on their verdict, they must deliver the same to the Justice, publicly, who must enter it ■ 8 Barbour, 46. « 5 Johnson, 111. » id 564. ' 10 id. 2-39. ' 10 Johnson, 239. '1 Hill, 61. * 24 Wendell, 185. » T Johnson, 82. »18id.2T4. 308 NBW-TOEK JUSTICE. in las docket. Previous to receiving it, tlie Justice must call tlie plaintiff. If he is absent, and no one appears for Mm, the verdict eliimot be.recpived.' /A^^^*^ B?A J'OttAy/'i^ ^/ tsproper for the Justice, when the jury return to render their verdict, to call over the names of the jurors, that he may know whether they are all present, and then to inquire wheth- er they have agreed upon their verdict. "Whenever a Justice is satisfied that a jury sworn in any cause before him cannot agree on their verdict, after having been out a reasonable time, he may dischai'ge them, and must then issue a new venire^ returnable within forty-eight hours, unless the parties consent that the Justice may render judg- ment on the evidence already before him ; which in such cases he may do.^ What is a reasonable time, depends upon circiimstances, and must be left to the sound discretion of the Justice. The Justice should keep the jury together as long as there is a reasonable probability that they will agree ; but they should not be kept out so long as to coerce an agreement by exhaustion or otherwise. The Justice may send a jury back to reconsider their ver- dict before it is recorded, if there is a mistake.^ If the jury state that they have agreed upon their verdict the Justice must call the plaintiff as directed by the statute. It is absolutely necessary that the plaintiff or his attorney be actually present when the verdict is rendered, for he has a right to submit to a nonsuit before it is rendered', and his absence is prima facie, evidence of his desire to do so. It is, however, sufiicient, if he be actually present when his name is called, though he does not answer, unless he expresses a design not to answer, or immediately withdraws, in which case the Justice should enter judgment of nonsiiit for want of the plaintifi^'s appearance.' Unless the Justice states, in his return on appeal, that the plaintiff was called and answered, or that he was actually present, the judgment will be reversed ; and where the Jus- tice returned that, on calling the plaintiff, " some person to > 2 E. S. 244, § no. ' ■'2K. S. 246, §119. Md.24B, §111. is .''o'.i ' . ' -"" » 21 Wendell, 805, ^ J<>f^ 7) = T Johnson, 32. ^ EECEIVING THE TEEDICT. 309 me not known answered to the name of the plaintiff," it was held to be irregular, because the Justice was bound to see that the plaintiff appeared in person, or by some one duly au- thorized.' ^t'^A^^-^ Z*^T No Court can be opened, or transact any business on Sun- day, vmless it be for the purpose of receiving a verdict or dis- charging a jury ; and every adjournment of a Court on Satur- day to. another day, must always be to some other day than Sunday, except such adjournment as may be made after a cause has been committed to a jnry.' It is proper, there- fore, to receive a verdict, or to discharge a jury on Sunday, where the cause has been committed to the jury before that day ; but is irregular for a Justice to enter a judgment on that day/ ITo part of a trial can be had on Sunday, except what is specially allowed by the statute ; and where a cause was submitted to a jury at two o'clock on Simday morning, and a verdict was rendered at three o'clock, the judgment was re- versed." The verdict is not valid and final, until it is pronounced and recorded in open Court ; and before that time the jury may correct a verdict in regard to which they have made a mistake, or about which, upon further reflection, they have doubt.' The verdict may be delivered orally or in writing ; and in either case, each party has the right to poll the jury, that is, each juror may be asked if the verdict rendered is his verdict, and if every juror does not express his assent to the verdict, the Justice has no right to enter it, for there is no agreement of the jury." A verdict for more damages than the defendant claims in his plea of set-off will not be set aside, where the plaintiff makes no objection to the set-off at the trial, but suffers it to go to the jury.' If the jury find a verdict of damages for the de- fendant, in a case in which he is not entitled to damages, the Justice may remit the damages, and give judgment for the J 3 Denio, 11. /Jl/I , ^({.,x , J S /, '6 Johnson, 68 ; T ii. 2 2 E. B. 275, § 7. ' " id. s 15 Johnson, 119. ' 8 id. 488. < 2 Sandford, 181 ; 8 Bartour, 884. 310 NEW-TOEK JUSTICE. defendant generally.' A verdict for the defendant for six cents damages and six cents costs, will be considered as a general verdict for tlie defendant, and the damages and costs will be rejected." A verdict of no caiise»of action, is sub- stantially a verdict for the defendant, and the Justice must enter judgment accordingly." If a verdict is rendered in favor of the plaintiif for an amount exceeding the jurisdiction of the Justice, the plaintiff may remit the excess." (18.) Varicmce. A variance between the proof on the trial, and the allega- tions in a pleading, must be disregarded as immaterial, unless the Court is satisfied that the adverse party has been misled to his prejudice thereby.' After taking time, a Justice cannot give judgment for a va- riance, where the objection was not taken at the trial.' (19.) Contempts of Court. This subject will be fully treated of hereafter in Part 11 of this work, Chapter I. CHAPTEE XIII. OF EVIDENCE. 1. TIIE NATURE AND PRINCIPLES OF EVIDENCE. The word evidence, in legal acceptation, includes all the means by which any alleged matter of fact, the truth of which 1 4 Johnson, 414. < 3 Denio, 819. *^S-^\ = 8 Id. 42T. ° '^"''f' § <>^. subd. 10. ■ 2 Id. 181. ' 8 mil, 287- NATUEE XSI) PEINCIPLES OF EVIDENCE. 311 is submitted to investigation, is established or disi^roved. This term, and the word proof, are often used indifferently, as synonymous with each other, but the latter is applied by the most accurate logicians, to the effect of evidence, and not to the medium by which truth is established. ITone but mathe- matical truth is susceptible of that high degree of evidence, called demonstration, which excludes all possibility of error, and which, therefore, may reasonably be required in support of every mathematical deduction. Matters of fact are proved by moral evidence alone ; by which is meant, not only that kind of evidence which is employed on subjects connected with moral conduct, but all the evidence which is not obtain- ed either from intuition, or from demonstration. In the ordi- nary affairs of life, we do not require demonstrative evidence, because it is not consistent with the nature of the subject, and to insist upon it would be imreasonable and absurd. The most that can be affirmed of such matters is, that there is no reasonable doubt concerning them. The true question, there- fore, in trials of issues of fact, is not, whether it is possible that the testimony may be false, but whether there is suffi- cient probability of its truth ; that is, whether the facts are shown by competent and satisfactory evidence. Things estab- lished by competent and satisfactory evidence are said to be proved.' By competent evidence is meant that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case, such as the production of a wri- ting, when its contents are the subject of inquiry. By satis- factory evidence, which is sometimes called sw^c^'t'?;,!; evidence, is intended that amount of proof which ordinarily satisfies an unprejudiced mind beyond reasonable doubt. The circum- stances which will amount to this degree of proof can never be previously defined. The only legal test of which they are susceptible, is their sufficiency to satisfy the mind and con- science of a common man, and so to convince him, that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest. Ques- tions respecting the competency and admissibility of evidence ' 1 Greenleaf on Evidence, § 1 ; Wills on Circumstantial Evidenco, 2. 313 NEW-TOEK JUSTICE. arc entirely distinct from those wliicli respect its sufficiency or effect ; the former being exclusively within the province of the Court; the latter belonging exclusively to the jury. Cu- mulative evidence, is evidence of tire same kind, to the same point. Tiius, if a fact is attempted to be proved by the ver- bal admission of a party, evidence of another verbal admis- sion of the same fact is cumulative ; but evidence of other circumstances, tending to establish the fact, is not.' 2. THINGS JUDICIALLY TAKEN NOTICE OF WITHOUT PROOF. The public seal of a State, affixed to the exemplification of a law or judicial proceeding, proves itself; it is a matter of notoriety, and will be taken notice of as a part of the law of nations acknowledged by all." It is not necessary to verify it, for it imports absolute verity ; and, until the contrary appears, the presumption is that it was affixed by the proper officer. At the common law, a seal is an impression upon wax, wafer or some other tenacious substance. In this State, an impres- sion upon paper alone is not regarded as a seal, except where it has been declared so by express statute ; ' nor is a scrawl a seal in this State. But, in a recent case in the Supreme Court of the United States, where a deed executed in Wisconsin, and at- tested by the seal of a Court, stamped upon the paper, instead of upon wax or a wafer, was admitted in evidence upon a trial in Arkansas, it was held, that the seal was good and suf- ficient as a common law seal." The law of nations, the general customs and usages of mer- chants, and the public statutes and general laws of their own country, as well ecclesiastical as civil, are recognized, without proof, by the Courts of all civilized nations." The seal of a notary public is also judiciall,y taken notice of by the Courts, he being an officer recognized by the whole commercial world." Nor is it necessary to prove things which must have happened according to the ordinary course of nature, nor the coincidence of days of the week with days of tlio month, nor the legal weights and measures, nor any matters of public ' 1 Grconlpnf on Eviaonco, § 8. * 18 Howard, 472. 5 6 Weniloll, 475; 4 Cowon, 845, " 8 Whcaton, 610, 634. ' 2 Hill, 227; 8 id 498; 1 Denio, 876. » 3 Wendell, 1T8. VAEIOUS KtNDS OF EVIDENCE. 313 history affecting the Trhole people, nor public matters affect- ing the government of the country. Courts also take notice of the territorial extent of the jurisdiction and sovereignty ex- ercised by their own country, and of the civil divisions of the country into States, counties and towns, but not of their pre- cise boundaries, farther than they may be described in public statutes.' Notice is taken, by all tribunals, of the accession of the Chief Executive of the nation or state under whose authority they act, his powers and privileges, and the genu- ineness of his signature ; of the heads of departments, and principal officers of state ; of the public seals ; of the election or resignation of a senator of the United States ; of the ap- pointment of a cabinet or foreign minister ; of the appoint- ment of marshals and sheriffs, and the genuineness of their signatures.^ Courts take judicial notice of the Constitution of the United States, and of the acts of Congress in pursuance thereof ;° but they do not take judicial notice of any of the laws of our sister States which are at variance with the com- mon law,' or of the ordinances of a municipal corporation.'* 3. THE VARIOUS KINDS OF EVIDENCE. Truth is either abstract and necessary, or probable and con- tingent ; and each of these kinds of truth is discoverable by appropriate, but necessarily different, kinds of evidence. This classification, however, is not founded on any essential differ- ence in the nature of truths themselves, and has reference merely to our imperfect capacity and ability of perceiving them. In many instances, the correspondence of our ideas with realities is perceived instantaneously, in which case the judgment is said to be intuitive. But innumerable truths, the knowledge of which is indispensable to happiness, if not to existence, depend upon evidence of a totally different kind, and admit of no other guide than our own consciousness, or the testimony of our fellow-men. ° In investigations of every kind, it is essential that a correct estimate be made of the kind and degree of assurance of which 1 5 Wendell, 580. < 10 id. T5. = 1 Greenleaf on ETidence, § 6. ° IT id. 199. 3 12 Wendell, 311 ; 14 id. 50T. ' Wills on Circumstantial Evidence, i. 314: NEW-TOEK JUSTICE. the svibject admits. Unlike tlie assent wliich is the inevita- ble result of mathematical reasoning, 'belief in the truth of events may be of various degrees, from moral certainty, the highest, to that of mere probability, the lowest. The general meaning of the word (probahiliinj is likeness or similarity to some other truth, event or thing. Sometimes that word is used to express the preponderance .of the evidence or argu- ments in favor of the existence of a particular event or truth, or adverse to it.' The degree of excellence and of strength to which testimony may rise seems almost indefinite. There is hardly any cogency which it is not capable, by possible sup- position, of attaining. The endless multiplication of \ritnesses, the unbounded variety of their habits of thinking, their preju- dices, and their interests, afford the means of conceiving the force of their testimony augmented ad infinitum, because these circumstances afford the means of diminishing indefi- nitely the chances of their being all mistaken, all misled, or all combining to deceive.'' The results of experience are expressly or impliedly assum- ed as the standard of credibility in all questions dependent upon moral evidence. By means of the senses, and of our own consciousness, we become acquainted with external nature, and with the characteristics and properties of physical things and moral beings, which are then made the subject of memory, reflection, and other intellectual operations ; and ultimately, the inferences and observations to which they lead are re- duced to general principles, and become the basis and stand- ard of comparison in similar circumstances. The ground-work of our reasoning is our confidence in the permanence of the order of nature, and in the existence of moral causes, which operate with an unvarying uniformity, not inferior to, and per- haps surpassing even, the stability of ph^'sical laws.^ Experience comprehends, not merely the tacts and deduc- tions of personal observation, but the observations of mankind at large, in every age and counti'y. It would be absiird to dis- believe and reject as incredible the relations of events, be- cause such events have not occurred within the range of indi- 1 wills on CircumstonUal Evldonoo, 7, 8. » id. 16. 2 1(1. 1". PKESITMPTIVE EVIDENOE. 315 Yidual experience. "We may remember the unreasonable in- credulity of the king of Siam, wbo, when the Dutch ambassa- dor told him that in his country the water in cold weather be- came so hard that men walked upon it, and that it would even bear an elephant, replied: "Hitherto I have believed the strange things you have told me, because I looked upon you as a sober man, but now I am sure you lie." ' By experience, we are led to refer facts or events of the same character to causes of the same kind. By analogy, facts and events similar in some, but not in all of their particulars, to other facts and oc- currences, are concluded to have been produced by a similar cause. So that analogy vastly exceeds in its range the limits of experience." An enlightened knowledge of human nature often enables us, on the foundation of apparently slight cir- cumstances, to follow the tortuous windings of crime, and ul- timately to discover its guilty author, as infallibly as the hun- ter is conducted by the track to his game." 4. PRESUMPTITE EVIDENCE. The term presumptive is frequently used as synonymous with circumstantial evidence ; but it is not bo used with strict accuracy. Presumption imports an inference from facts. Circumstances generally, but not necessarily, lead to particu- lar inferences. For the facts may be indisputable, and yet their relation to the principal fact may be only apparent and not real ; and even Avhen the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence therefore differ. The force and effect of the former depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact Avhich it is adduced to prove.* A presimption is a probable consequence, drawn from facts, (either certain, or proved by direct testimony,) by which may be determined the truth of a fact alleged, but of which there is no direct proof. A woimded and bleeding body is dis- covered ; it has been plundered ; wide and deep foot-marks ' Wills on CiroumstanHal Evidence, 16. » id. 19. 2 Id. 17. * id. 26,26. 316 NEW-TOEK JirSTICE. are found in a direction proceeding from the body ; or a person is seen running from the spot. In the one case are observed marks of flight ; in the other is seen the fugitive ; and we know that guilt naturally endeavors to escape detection. These cir- cumstances therefore induce the presumption that crime has been committed, and the presumption is a conclusion or con- sequence from the circumstances. Of presumptions afforded by moral phenomena, a memorable instance is recorded in the judgment of Solomon, whose knowledge of the all power- ful force of maternal love supplied him with an infallible criterion of truth.' Presumptions of every kind, to be just, must be dictated by nature and reason. It is impossible to lay down arbitrary rules of presumption, as every case must of necessity be con- nected with peculiarities of circumstances, which cannot be reduced to any fixed principle. In criminal jurisprudence, no arbitrary presumptions should ever be admitted. It would be as unreasonable to subject human actions to unbending rules of presumption, as to prescribe to the commander of a ship inflexible rules for his conduct, without giving him any dis- cretion in the unforeseen and innumerable accidents and con- tingencies of the tempest and the ocean." Presumptive evidence is generally divided into two branch- es, namely, presumptions of law, and presumptions of fact. Presumptions of law consist of those rules, which in certain cases either forbid or dispense with any ulterior inquiry. They are founded, either upon the first principles of justice ; or the laws of nature ; or the experienced course of human conduct and afi'airs, and the connection usually found to exist between certain things. The general doctrines of presumptive evidence are not therefore peculiar to municipal law, but are shared by it in common with other departments of science. Thus, the presumption of a malicious intent to kill, from the deliberate use of a deadly weapon, and the presumption of aquatic habits in an animal found with webbed feet, belong to the same philosophy, differing only in the instance, and not in the principle of its application. The one fact beino- proved > wills on CironmBtaiiti.il Evidence, 26, 27. »ld. 28, 81. PEESUMPTIVE EVIDENCE. 317 or ascertained, the otlier, its uniform concomitant, is univer- sally and safely presumed.' Presumptions, again, are conclusive and disjoutable. Con- clusive presumptions, are rules determining the quantity of evidence requisite for the support of any particular averment, which is not permitted to be overcome by any fact that the proof is otherwise. They have been adopted by common consent, from motives of public policy, for the sake of greater certainty, and for the promotion of peace and quiet in the com- munity ; and therefore all corroborating evidence is dispensed with, and all opposing evidence is forbidden. Sometimes this common consent is expressly declared by statute. By the statute of limitations, a debt founded on simple contract, which has not been recognized within six years as a subsist- ing obligation, cannot be recovered, for it is conclusively presumed to have been paid. In other cases, the common consent by which conclusive presumptions are established, is declared by the common law. Thus, the iminterrupted en- joyment of an incorporeal hereditament, for a period beyond the memory of man, is held to furnish a conclusive presump- tion of a prior grant of that which has been so enjoyed.^ Twenty years exclusive enjoyment of the water of a stream in any particular manner, affords a conclusive presumption of title by grant or statute ; but if the party has, within the twenty years, increased the height of the dam, the presimiption does not apply to the increased height.' It is not necessary that the water should have been used in the same precise manner during the twenty years, provided the mode of using it has not been materially varied to the prejudice of others." A sane man is conclusively presumed to contemplate the natural and probable consequences of his own acts ; and therefore the intent to murder is conclusively inferred from the delib- erate use of a deadly weapon."^ When husband and wife perish together at sea, it is presumed that the husband survives the wife, in the absence of any evidence to justify a different conclusion ; bi;t when mother and daughter perish by the 1 1 Greenleaf on ETldenoe, § 14. < 3 Paige, BTT ; 6 id. 4S5. = id. § 14^18. » 1 RusseU on Crimes, 658. 10 Wendell, 16T. 318 HEW-TOEK JUSTICE, same disaster, and there is no evidence of snrvivorsliip, there is no legal presumption that the daughter survives the mother." There is no legal presumption that a child was born alive, and a person claiming from it by descent, is bound to jsrove the fact." The existence of a person, a personal relation, or a state of things, being proved, the law presumes its continu- ance till the contrary is shown, or until a different presump- tion is raised from the nature of the subject in question; and this principle is applicable, within reasonable limits, to the character of a witness proved to have once sustained a bad reputation for truth and veracity.' The identity of parties is always presumed from the identity of names, but it may be repelled by proof.* The presumption in favor of a legal performance of duty by public officers is very strong.'' This presumption applies in favor of the regularity of proceedings before a Justice, on a review of them upon appeal." But the presumption in favor of the performance of official duty, does not apply to the doing of a vital jurisdictional act. If, however, the doing of the act be proved, the law will presume that it was done at the proper time, if the proof is such that it may have been so done.' The general rule is, that where a person is bound to do a certain act, the omission of which would be a culpa- ble neglect of duty, the performance of it will be presumed until the contrary is proved.' The law presumes against the slightest violations of duty, in the business and other rela- tions of private life ; and we must presume against a noto- rious act of immorality, almost as stronid,y as we would against the commission of a lesral crime." V^'^'^ V ' " ^^ Wh^re a party has a legal right' to enter into possession of land in one character, or under one title, the law will presume that he enters in that character, and under that title, and not in the character of mere trespasser." Upon a common law question, the law of a sister State is presumed to be similar > 1 Bartour, 264 « 4 Dento, 182. 2 2 Paige, 85. /I ,/ aO a 1 f ' 7 Barbour, 89. " 4 Denlo, 481. ^^ i/iyTrVf\^ J'O il/la 8 jg Johnson, 846. « 5 Cowen, 237. / % 'It- '/ ■ V o 1 Hill, 2T0. » 9 id. 94; 12 Wendell, 14S; 21 id. 1T8.^' J /^r'l' " 8 Wendell, ITS. JEESTTMPTIVE ETIDENCE. 319 to our own ;^and, in the absence of proof to the contrary, the common law as to the contract of marriage, is presumed to be the law of a sister State." So, also, our Courts, in the absence of evidence to the contrary, assume that the law regulating interest in other States is similar to our own.' In the absence of the husband, the wife is presumed to have a general au- thority to exercise the usual and ordinary control over his property which must be possessed by some one, unless it be expressly shown that the husband has constituted some other person his agent.* "Where stock is transferred by the holder, and there is no evidence that such holder did not receive pay- ment for the stock transferred, the legal presumption is that he did receive such payment.' And, if cne man delivers a sum of money to another, and there is nothing to explain the transaction, the presumption always is, that the money belonged to the person who received it, and not that he thereby became a debtor to the other." A receipt for rent accruing at a subsequent period, is presumptive evidence that all rent previously accruing had been paid.' And, where A. sued B.'s executors for board furnished B., and the executors proved that A. gave to B. his promissory note some three years after the board accrued, it was held, that the giving of the note was presumptive evidence of a settlement for the board, and that A. could not recover without proving that the note was given for a distinct consideration.' Where a mort- gagee has never entered into possession of the mortgaged premises, and no demand has been made or interest paid for twenty years, the mortgage is presumed to have been satisfied." If a litigant is pressed by circumstantial evidence, and it appears that, if its pressure be unjust, he has it in his power to produce evidence to explain it, and he omits to produce it, his omission affords a strong presumption against him. But the presumption does not arise from an omission to produce those who might by possibility have knowledge on the sub- »10Wenden,T6. ^-^ '''«*-**-^ = ■ / • 1 Comstock, 87T. ,, ^(r^* 'IHlll, 2T0. ■ ' 16 Johnson, 479.«-''>:' . ' "^ ' ' s 2 id. 201 ; 1 Paige, 220 ; 3 Barionr, 20. » 6 Denio, 304, ^ id. J 84 ' 1 Qteenloaf on Evidence, { 88. PEESUMPTIVE EVIDENOE. 323 A sane man, a Toluntary agent, acting upon motives, must be presumed to contemplate and intend the necessary, natural and probable consequences of bis own acts. If, tberefore, one voluntarily or wilfully does an act which has a direct tenden- cy to destroy another's life, the natural and necessary conclu- sion from the act is, that he intended so to destroy such per- son's life. So, if the direct tendency of the wilful act is to do another some great bodily harm, and death in fact follows, as a natural and probable consequence of the act, it is presumed that he intended such consequence, and he must stand legally responsible for it. So, where a dangerous and deadly weap- on is used with violence upon the person of another, as this has a direct tendency to destroy life, or do some great bodily harm to the person assailed, the intention to take life, or do him some great bodily harm, is a necessary conclusion from the act. However suddenly any act is done, the intent to do it precedes the doing of it, and the act is done in pursu- ance of the intent and formed design. However short the interval, the intent necessarily precedes.' Malice, in the common acceptation, means ill-will against a person ; but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. K I give a per- fect stranger a blow likely to produce death, I do it of malice, because I do it intentionally, and without just cause or excuse. If I maim cattle, without knowing whose they are, or if I poison a fishery without knowing the owner, I do it of malice, be- cause it is a wrongful act, and done intentionally. If I am arraigned of felony, and wilfully stand mute, I am said to do it of malice, because it is intentional, and without just cause or excuse.' The same presumption arises in civil actions, where the act complained of was unlawful ; and, generally, the rules of evidence are the same in criminal cases as in civil.° As men generally own the personal property they possess, proof of possession is presumptive proof of ownership. But possession of the fruits of crime, recently after its commission, is prima facie evidence of guilty possession ; and, if unex- plained either by direct evidence, or by the attending circum- 1 9 Metcal^ 93. » 1 Massachusetts Eep. Tl, 885; 4 id. 698; 9 » 1 EuBsell on Crimes, 614, note 1. Pickering, 89. 324 NEW-YOEK jaSTICE. stances, or by the character and habits of life of the possessor, or otherwise, it is taken as conclusive. This rule of presump- tion is not confined to the case of theft, but is applied to all cases of crime, even the highest and most penal. Thus, upon an indictment for arson, proof that property, which was in the house at the time it was burnt, was soon afterwards found in the possession of the prisoner, was held to raise a probable presumption that he was present and concerned in the of- fence.' Tlie like presumption is raised in the case of murder, accompanied by robbery ;" and in the case of the possession of an unusual quantity of counterfeit money.' The presumption of innocence is so strong, that even when guilt can be established only by proving a negative, that negative must, inmost cases, be proved by the party alleging the guilt ; though the general rule of law devolves the burden of proof on the party holding the afiirmative.* An exception to this rule respecting the presumption of innocence, is ad- mitted in the case of a libel. For, where a libel is sold in a bookseller's shop, by his servant, in the ordinary course of his employment, this is evidence of a guilty publication by the master; though in general an authority to commit a breach of the law is not to be presumed. This exception is founded upon public policy, lest irresponsible persons should be put forward, and the princij)al and real offender should escape.' The presumption of innocence may be overthrown and a pre- sumption of guilt be raised, by the misconduct of a party in suppressing or destroying evidence, which he ought to pro- duce, or to which the other party is entitled. A strong pre- sumption is raised against a party who withholds papers which he has obtained possession of from a witness, after the service of a subpoena duces tecvm upon the latter for their produc-. tion. His conduct is attributed to his supposed knowledge, that the truth would have operated against him." In all doubtful cases, when the scales of justice are nearly poised, the correct legal presumption is in favor of the prison- er's innocence ; and that presumption should not be permit- I 2 East, P. C. 1085. « 1 Greenleaf on Eridence, § 85. « Wills on Circumstantial EyUence, 72. « id. § 86. •KoBseU&Eyftn, 808. Md.§8T. PEESUMPTIVE EVIDENCE. 325 ted to be disturbed by any inference wbatever from the ab- sence of testimony to prove good character and virtuous life. The rule and practice of our law in relation to evidence of character, rest on the deepest principles of truth and justice. The protection of the law is due alike to the righteous and the unrighteous. The sun of justice shines alike " for the evil and the good, the j ust and the unjust." Crime must be proved, not presumed ; on the contrary, the most vicious is presumed innocent until proved guilty. The admission of a contrary rule, even in any degree, would open a door not only to the direct oppression of those who are vicious because they are ignorant and weak, but even to the operation of prejudices as to religion, politics, character, profession and manners, upon the minds of honest and well-intentioned jurors. Although evidence of previous good character should operate strongly in favor of a prisoner, a Judge has no right to allude to the absence of such proof as affording a presumption against a pris- oner.' Accordingly, where a Judge instructed the jury that fair character was important to the prisoner, and that they were to enquire why it was that he had given no evidence of his general character, it was held that such instruction sug- gested the inference that his character was bad, and was there- fore erroneous." Where no evidence of general character has been given, the subject of character is not one for the consid- eration of the jury ; and where, upon the trial of an indict- ment, no proof is given as to the general character of the de- fendant, the law assumes that it is of ordinary fairness. A prisoner on trial may show what his reputation is, and then the question is open to the prosecution, and is one for the ju- ry to determine, like other controverted facts. But if the prisoner chooses to give no evidence on the subject, the jury are not at liberty to indulge in conjecture that his character is bad, in order to infer that he is guilty of the particular crime charged.' The connection between a man's conduct and his motives, is one of a moral nature, pointed out by experience. It is by their experience of such connection, that jurors are enabled ' 24 Wendell, 520. = 9 Bai'tour, 609. = 1 Denio, 281. 326 NEW-TOKK JUSTICE. to infer a man's motives from his acts, and also to infer what his conduct was, from the motive by which he is known to have been influenced. In criminal cases, proof that the party ac- cused was influenced by a strong motive of interest to com- mit the offence proved to have been committed, although ex- ceedingly weak and inconclusive in itself, and a circumstance which ought never to operate as proof of the corpus delicti, is yet, when that has once been established aliunde, a circum- stance to be considered in conjunction with others which plainly tend to implicate the accused. On the other hand, the total absence of any apparent motive must always ope- rate strongly as a circumstance in favor of the accused, espe- cially where there is no reason to apprehend any unsoundness of intellect.' Facts are often simulated for the purpose of attracting sus- picion in a direction difi^erent from the true one. Some- times the object of simulated facts is not merely to direct sus- picion from the real culprit, but to attract it toward a partic- ular individual ; and such is the weakness of human nature, that there are even instances where innocence has degraded and betrayed itself by the simulation of facts, for the purpose of evading the force of circumstances of apparent suspicion.^ An unsuccessful attempt to establish an alihi, is always a circumstance of great weight against a prisoner, because the resort to that kind of evidence implies an admission of the truth and relevancy of the facts alleged, and the correctness of the inference drawn from them ; and where the defence of an alibi fails, it is generally on the ground that the witnesses are disbelieved, and the story considered to be a fabrication. The defence of an alibi often involves considerations of the most diflicult and perplexing nature. It is not an uncommon arti- fice, to endeavor to give coherence and eflect to a fabrica- ted defence of an alibi, by assigning the events of another day to that on which the offence was committed, so that the events, being true in themselves, are necessarily consistent with each other, and false only as they are applied to the day in ques- tion." After all, the jury are frequently reduced to the diffl- > 1 Btarkle on Evidence, 491. ' id. 115. '' Wills on Circumstantial Eyidence, 118. PEESUMPTIVE EVIDENCE. 327 ctilt and painful duty of weighing the testimony on the one side against that on the other ; and in doing so it is their du- ty, on the one hand, to recollect that the presumption of law as well as of justice is against the prosecutor, and therefore that if the evidence on both sides is equal, or nearly so, they should incline to the side of mercy ; and on the other, how much more easy it is to get up a fictitious alibi, where all that is to be proved is the presence of the prisoner at a particular place at a particular time, than a false account of all the minute particulars relating to so many different mat- ters, which is necessarily implied in the proof of a false charge against a prisoner.' In the celebrated trial of Doctor "Web- ster for the murder of Doctor Parkman, several witnesses tes- tiiied positively that they met the latter alive in the streets of Boston, after the time when he must have been killed, if at all ; and although there is no reason to suppose that the wit- nesses intended to testify falsely, it afterwards appeared con- clusively that they were mistaken as to the identity of the person. Illustrations are numerous to show, that what are supposed to be the clearest intimations of the senses, may be fallacious and deceptive. A partnership or other similar relation, once shown to exist, is presumed to continue, nntil it is proved to be dissolved. And a seisin, once proved or admitted, is pre- sumed to continue, until a disseisin is proved. The opinions, also, of individuals, once entertained and expressed, and the state of mind once proved to exist, are presumed to remain unchanged, until the, contrary appears. Every man is pre- sumed to be of sane mind, until the contrary is shown ; but if derangement or imbecility be proved or admitted at any particular period, it is presumed to continue until disproved, unless the derangement was accidental, as when caused by thq violence of a disease.' -^ "^ ^'^^^^^^ Jf^t^ ^ ^^ '*'^ The relatme value of direct and of cireumstantial evidence. It has been said that circumstances are inflexible proofs ; that witnesses may be mistaken or corrupted, but things can ' Wills on Ctrcumstantial Evidence, 120. ^ 1 Greenloaf on Evidence, § 42. 328 ITEW-TOEK JTOTICE. be neither. " Circumstances," says Paley, " cannot lie." It is astonishing that sophisms like these should have passed cur- rent without animadversion. The circumstances are assumed to be in every case established, beyond the possibility of mis- take, and it is implied, that a circumstance established to be true, possesses some mysterious force peculiar to facts of a certain class. Now a circumstance is neither more nor less than a minor fact, and it may be admitted of all facts, that they cannot lie ; for a fact cannot at the same time exist and not exist; so that in truth the doctrine is merely the expres- sion of a truism, that a fact is a fact. It may also be admit- ted that circumstances are inflexible proofs, but assuredly of nothing more than of their own existence ; so that this asser- tion is only a repetition of the same truism in different terms. It seems also to have been overlooked, that circumstances and facts of every kind must be proved by human testimony ; that although circumstances cannot lie, the narrators of them may ; and that, like witnesses of all other facts, they may be biased or mistaken. So far, then, circumstantial possesses no advan- tage over direct evidence.' If evidence be so strong as ne- cessarily to produce certainty and conviction, it matters not by what kind of evidence the effect is produced ; and the inten- sity of the proof must be precisely the same, whether the ev- idence be direct or circumstantial. It is not intended to deny that circumstantial evidence affords a safe and satisfactory ground of assurance and belief; nor that, in many individual instances, it may be superior to other individual cases of proof by direct evidence. 15 at a judgment based upon circumstan- tial evidence, cannot, in any case, be more satisfactory than when the same result is produced by direct evidence, free from suspicion of bias or mistake." It is essential to circumstantial proof, that the circumstan- ces from which the conclusion is drawn should be fully estab- lished.' * If the basis bo removed, the superstructure caiino^be . secure. The party upon whom the burthen of proof rests is bound to prove every single circumstance which is essential to the conclusion, in the same manner, and to the same ex- » wills on circumstantial Evidence, SS, 39. ' id. 41. EELEVASrCT OF EVIDENCE. 329 tent, as if the whole issue had rested upon the proof of each individual and essential circumstance. It is obvious that proof of this nature is more strong and cogent when the cir- cumstances are numerous, and derived from many different and independent sources, than when they are but few, and depend on the credit and testimony of one or two witnesses. "Where all the circumstances rest on the testimony of a single witness, the evidence can never be superior to the lowest de- gree of direct evidence, and must frequently fall below it. For, in addition to the question whether the witness is wor- thy of belief, another question will arise, that is, whether the inference is correctly drawn from the facts which he is supposed to prove.' It is essential that all the facts should be consistent with the hypothesis. The circumstances should be of a conclusive nature and tendency. Evidence is always indefinite and in- conclusive, when it raises no more than a definite probability in favor of the fact, as compared with some definite probability against it, whether the precise proposition can or cannot be ascertained. It is also essential that the circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved. Mere circumstantial evidence ought in no case to be relied on, where direct and positive ev- idence, which might have been given, is wilfully withheld by the prosecutor. Where direct evidence is attainable, circum- stantial evidence is of a secondary nature. Besides, the great excell^ce of indirect eviden^ce is its freedom from suspicion, and no greater discredit can be thrown upon it than when di- rect evidence is withheld." 5. EELEVANCY OF EVIDENCE. "We have seen that there are two ways in which an issue of fact may be tried in a Justice's Court, viz : by the Justice without a jury, and by a jury. In the former case, the question of the admissibility of evidence, properly speaking, can seldom arise; since the evidence, whatever the objection, must necessarily be heard by the Justice before he can decide — _ . J 1 1 Btarkio on ETidence, 502. « id. 505 to 515. 330 NEW-TOEK JUSTICE. upon its cliaracter or value. But wlien the issue is tried by a jury, it is tlie duty of the Justice to determine all questions on tlie admissibility of evidence, as well as to inform the jury by what rules it is to be weighed. Whether the evidence offered is sufficient, is a question for the jury.' If the ques- tion of admissibility is intimately connected or blended with a question of fact, the evidence is to be submitted to the jury, with the instructions of the Justice, if he thinks proper to give them, as to the principles and rules of law by which the jury are to be governed in finding their verdict." The party who objects to the admissibility of evidence, must state specifically the grounds of his objection. It is not suffi- cient to object generally that the evidence is illegal; but the party objecting must put his finger on the very point, in order to apprize the Court and his adversary of the precise objec- tion he intends to make.' The production of evidence to the jury is governed by cer- tain well-settled principles or rules, which vrill now be con- sidered. The first of these rules is, that the evidence must correspond with the allegations in the pleadings, and be con- fined to the points in issue. Indeed, the object of a trial is to ascertain the truth of the allegations put in issue ; and there- fore any evidence which does not tend to prove or disprove the issue joined, is foreign to the purpose for which the suit was instituted, and consequently inadmissible.* This rule supposes that the averments or allegations in the pleadings are material and necessary, for it is only such averments that re- quire to be proved." Immaterial and irrelevant matters, al- though within the terms of the issue, need not be proved ; and if proof of them is offered it may be rejected.' These ir- relevant m.atters are, in the language of the law, denominated surplusage, and comprehend whatever may be stricken from the pleadings without destroying the plaintiff's right of action.' I Douglas, 874 ; 10 Metcalf, 2S5 ; 7 Woildell, dence, § 388 ; 10 Johnson, 46. 5T ; 1 Gvconleaf on Evidence, §49. si Btorkie on Evidence,' 88T ! 5 Johnson, 112 ; 14 id. 804 ; 6 Hill, S2S. « 15 Wendell, 602 ; 5 Denio, 464 ■ 1 Greenleaf • 6 Barbour, 898; 1 Cow^, 603 ; \2 Wendell, on Evidence, § 51. ' ' 'id. • 6 Barbour, 898; 1 Cowep, 603 ; \2 Wendell, 504 ; 1 Id. 418 ; 1 Hill, 91.^ //^CC (»f ^ < 1 Startle on Evidence, 886 ; Best on £71* BTJEDEN OF PEOOF. 331 la determining wliether a particular averment can be re- jected as immaterial, regard is to be had to its nature, and to its connection with the substance of the charge. For instance, if, in an action for a breach of warranty of goods, the com- plaint should allege that the goods were not what they were warranted to be, and that the defendant well knew that they were not, the avei-ment of knowledge on the part of the defendant majr be rejected,, and proof of the fact is unne- cessary.' / KiM-^*'^^^ ^ ^^^ It is not requisite that the evidence should bear strictly upon the point in issue. It is admissible if it tends to prove the point, or constitutes a link in the chain of proof.' But if the evidence thus offered is objected to, the party ofiering it is bound to show its relevancy, by reference either to the testi- mony already given, or to the facts to be subsequently proved on his part. A Court, in the exercise of a sound discretion, may require counsel to state the substance of the evidence of- fered to be given, so as to enable it to judge of its materiality and relevancy, and a Court of review will not control an infe- rior tribunal in the exercise of such discretion.' The Justice may reject evidence offered, if he deems it irrelevant, or, if it is already given, may instruct the jury to disregard it. The better course, however, is to reject it in the first instance." In cases in which the knowledge or intent of the party is a material fact, evidence apparently collateral to the main issue, but which has, nevertheless, a direct bearing upon the ques- tion of knowledge or intent, is admissible.' Where a party is charged with a specific fraud in a civil action, his character is not in issue, and the evidence of fraud cannot be repelled, therefore, by proving his^ general .good character for integ- 6. BURDEN OF PROOF. The second general rule is, that the burden of proving the issue lies on the party holding the afiirmative ; or, in other words, the burden of proof lies on the party who would be 3~y C '~ 7 ~ 1 2 East, 446. '-' 6 ><-' ' ^^ '••- ' " ^ 63 Xerm Kep. 481 ; 1 Story, 1S5. 2 1 Greenleaf on Evidence, § 61. "6 Oowen, 678 ; 16 WendclJ, 646. » 7 "Wendell, 859. t jjest on ETidence, §§ 254, 238. < 19 id. 203 ; 7 id. 359 ; 14 id. HI ; 24 id. 105. 332 HEW-TOEK JUSTICE. defeated if no evidence were given on either side.' It is for the party holding the affirmative, to make out a preponder- ance of proof; and the burden is upon the defendant, in rela- tion to every matter of defence which does not come in by way of answer to the plaintiff's evidence. The substance of the allegation to be tried, rather than the particular form of the pleading, must determine upon whom the burden lies." The rule just referred to has been adopted for the sake of convenience, because it is itiuch easier to obtain positive and direct proof of an affirmative fact, than of a negative one. One consequence of the rule, therefore, is, that when an af- firmative proposition is asserted, it is sufficiently met by a general denial, and then, if no evidence is offered, the party denying succeeds. ° Another consequence of the rule is, that the party holding the affirmative of the issue is entitled to open the cause, and to reply.' Having once begun, however, he must exhaust all the evidence in support of the issue on his side, as it is alleged in his pleading, before closing, and can, thereafter, only introduce evidence in reply.' After the evidence in support of the is- sue is completed, then the evidence of the negative side is heard, and then the rebutting proof of the affirmative.' This rebutting proof or evidence in reply, must be directed strict- ly to answering or qualifying the case as it is made out by the party holding the negative.' The Justice, in his discre- tion, may, however, change this order of the evidence, if he deems it necessary in order to obtain complete justice.' The burden of proof is shifted by presumptions of law, presumptions of fact of the stronger kind, and evidence strong enough to establish & prima fade case." "When the presump- tion is in favor of the party who asserts the negative, that only affords an additional reason for casting the burden of proof upon his adversary. When the presumption is in favor of the affirmative side, the opposite side is then called on to prove the negative.'" 1 Best on Evidence, §§ 264, 288. 'lilill, 150;2Denlo, 609. » Best on Evidence, § 258. Md. • 1 Hill, 800 ; 15 Wendell, 602. "20 id. 226, 7 id. 8 id.; IT id. 108 ; 1 Hill, SCO; 4 id. 202 ; 5 id. 286. » Best on Evidence, § 258. "id. EUKDEN OF PROOF. 333 . "WTiQii there, is a, necessity of proving ^iamages, the case, falls within the general rule, and the damages mus't be shown.' But, if it is admitted that the damages to be recovered are merely nominal, or there is no dispute except as to their com- putation, and the residue of the case is affirmatively justified by the defendant, he will have the right to begin and re- ply.' If, for example, in an action of trespass quare clausum fregit, the defendant should plead not guilty as to the force and arms, and justify as to the residue, and the damages should be laid, as in the usual formula of an old declaration, of treading down the grass and subverting the soil, the de- fendant would be permitted to begin and reply, there being no necessity for any proof on the part of the plaintiff.' To this general rule, however, that the onus is upon the party holding the affirmative of the proposition, there are some exceptions, the most numerous class of which arises in those cases in which the action is founded upon a nega- tive allegation. In such cases, the plaintiff must give some affirmative proof, though the allegation be negative in its terms.* There is another circumstance by which the burden of proof is affected. Whether the question at issue be one of which both the affirmative and negative are equally prob- able, or whether either side be strengthened by a pre- sumption in its favor, still the capacity of the parties relative to giving evidence about it often differs materially. The aver- ment may be of such a character that the evidence must neces- sarily be in the possession of one party who could produce it, and thus put an end to the litigation.' Particularly is this the case in prosecutions for penalties for doing acts which the statute does not permit to be done by any persons except those who are duly licensed therefor.' To call on the plain- tiff in such an action to establish his case, on the ground that he holds the affirmative, or that the presumption of law is against him, would, if not amounting to injustice, be pro- ductive of circuity and delay.' In order to prevent this, it •*'''''. ' I Greenleaf on ETidence, § 15. • -^ ''-' ' ' = Best on Evidence, § 2S9. •id. • 1 Greenleaf on Evidence, § T9. •id. '1 Johnson, 513 ; 1 East, 643. * id. § 78. 334 NEW-TOEE JUSTICE. has been established as a general rule of evidence, that in every case the onus probcmdi rests on the person who wishes to support his case by a particular fact which lies more pe- culiarly within his own knowledge, or of which he is suppo- sed to be cognizant.' "Where the negative allegation is of a criminal neglect of duty, the neglect must be proved, for the presumption of law is, that where a person is required to do a certain act, the omission of which would make him guilty of a culpable neg- lect of duty, he has duly performed it, unless the contrary be shown." So also the burden of proof is upon the party alleging in- fancy," or nonfeasance, or negligence, in actions on contract.' 7. AMOUNT OF PROOF. The third general rule is, that it is suflScient if the sub- stance of the issues raised by the pleadings is proved.' On the trial of an issue of fact, its substance is all that need be proved. Immaterial and irrelevant matter, although within the terms of the issue, may be disregarded.' Thus, in an action for a breach of warranty in the sale of goods, an averment of deceit upon the sale, is impertinent, and need not be proved.' Allegations of time, place and quantity, when not descrip- tive of the identity of the subject of the action, need not be strictly proved as alleged.' Thus, in an action for mali- cious prosecution for a crime of which the plaintiff alleges that he was acquitted on a certain day, the acquittal be- ing -the gist of the averment, it is sufficient to prove it, though not on the day alleged." JSTor is it necessary to prove the precise value of the goods taken, in trespass or trover." In actions on contract, the plaintiff can give evidence of less than the sum alleged ; and in actions of tort, it is sufficient for him to prove a substantial portion of the grievances or tres- passes complained of." > 6 Term Eep. 57. ' 2 East, 446 ; 17 Johnson, 92. » 19 Jolmson, 845 ; 8 East, 192 ; 10 id. 216. « 2 id. S ; 13 id. 253. » 1 Term Eep. 648. • 8 Term Eep. 66, 67. * 1 Greenleaf on Evidence, § 81. i" 5 id, 24S ; 3 Grecnieaf, 174. » Best on Evidence, § 262 ; 5 Denio, 464. i 'Best on Evidence, § 266. « 1 PliUlipB & Amos on Evidence, 200, 206, THE BEST EVIDENOE. 335 But, although the law is thus liberal in looking through mere form, in order to see the substance of the issue raised, it does not permit a positive variance between the pleading and the proof. Such a variance has always been held fatal.' By the Code, however, Justices are directed to disregard as im- material a variance between the proof on the trial and the allegations in a pleading, unless they shall be satisfied that the adverse party has been misled to his prejudice thereby.'' The adverse party must, therefore, not only object that the evidence does not support the pleading, but must show that he has been misled thereby. If the objection to the variance is not taken on the trial, it cannot be made available afterwards.^ 8. THE BEST EVIDENCE. The fourth general rule which governs in the production of evidence is, that the best evidence must be given of which the nature of the case will admit.'' The true meaning of this rule is, that no evidence shall be brought, which, ex natura rei, supposes better evidence behind in the party's own pos- session or power." In other words, the party who is to prove any fact, must do it by the highest evidence of which the matter is, by its nature, capable. A common illustration of this rule is, that a party who relies upon a deed or a contract in writing, must produce it, and will not be permitted to give evidence of its contents unless it has been lost or destroyed, or is in the possession of the adverse party, who refuses to produce it on notice.' If a party offers a copy of a deed, when he ought to produce the original, this carries the pre- sumption with it, that there is something in the deed that works against him, or else he would have produced it.' A consequence of this rule is the division of evidence into primary and secondary. Primary evidence is the best evi- dence, or that kind of evidence which affords tlie greatest possible certainty of the fact in question. Evidence falling 1 1 Greenleaf on Evidence, § 63 ; Best on Cowen, 80. Evidence, § 19T. ,^ * Gilbert on Evidence, 4. 2 Code, § 64, subd. 10. / 1^' ','-■■-' ' • "12 Johnson, 221 ; 16 id. 193 ; T Wendell, 81. « IT Wendell, 71 ; 8 Hill, 28T. ' Best on Evidence, § 82 ; 18 Johnson, 830. *Be3t on Evidence, §82; 1 Atkyns, 49; » 336 NEW-TOEK JUSTICE. short of this is secondary. If the execution of an instru- ment is to be proved, the primary evidence is the testimony of a subscribing witness.' If his testimony cannot be pro- cured, then proof of his hand-writing, or, in the absence of that, proof of the hand-writing of the party executing the in- strument, is admissible as secondary evidence." In a Jus- tice's Court, if the subscribing witness is neither in the county where the cause is tried, nor in an adjoining county, such secondary evidence is admissible. The reason is, that the witness is beyond the reach of a subpoena." Where the instrument is one which the law requires to be in writing, secondary or oral evidence cannot be substituted for its production, unless the absence of the primary evidence, that is, of the instrument itself, is satisfactorily accounted for.* The reason of this is plain. In the first place, the pre- sumption of law is, as we have seen, against the party with- holding the instrument ; and in the next place, the secondary evidence must necessarily be derivative, and derivative proof is always rejected until the absence of the original proof is satisfactorily explained.' The confession of a party does not obviate the necessity of legal evidence of the execution of a specialty ; much less is it admissible as proof of matters of record." Thus, the con- fession of the defendant that he executed a bond which is offered in evidence, would be properly excluded as incompe- tent proof of the fact.' But the rule is otherwise, if the in- strument is one not under seal.' Where the instrument is one which the parties themselves have put in writing, it must be proved by producing it. The reason of this rule is, that where parties have deliberately put their agreement in writing, it is presumed that the whole of their undertaking, and its extent and manner, are expressed in the writing.' Therefore, where there is a written contract of tenancy, a party is not permitted to recover, in an action 1 Greenleaf on Evidence, §84; 8 Johnson, Evidence, §86. 4T7 ; 18 Wendell ,178. » id. ; 16 Meeson & "Welsby, 618. » 1 Jobnson's Oases, 230 ; 19 Johnson, 886 ; 9 '6 Johnson, 9 ; 8 Wendell, 480. Oowen, 140 ; 4 Wendell, 818 ; 11 id. 96 j 18 id. '2 Johnson, 451 ; 8 id. 47T. 178 ; 2 Barbour, 644 « 18 id. 68. " 2 Oowen's Treatise, 397 ; 12 Johnson, 188. » 11 Massachusetts Eep. 2T. * Best on Evidence, § 78 ; 1 Greenleaf on THE BEST EVIDENCE. 337 for use and occupation, without producing it.' The same doctrine applies to every species of written contracts. In an action for work and labor, where it is shown that the work was commenced under a written agreement, the agreement ought to be produced, else the plaintiff cannot recover, even for extra work ; ' for the written contract may be important, even with respect to the extra work, as furnishing some evi- dence of the rate at which the work should be paid for.' The proof necessary to establish the loss or destruction of a written instrument, in order to introduce secondary evidence of its contents, and the question when parol evidence is ad- missible to explain or contradict the language of a written contract, will be considered hereafter. Oral evidence cannot be substituted for any writing, the existence of which is disputed, and which is material either to the issue between the parties, or to the credit of the wit- nesses, and is not merely a memorandum of some other fact.* One advantage derived from the application of the rule to such cases is, that a knowledge of the whole contents of the instrument is acquired, which may have an effect very diffe]> ent from the statement of a part." Lord Tenterden, in alluding to this rule, observes : ° "I have always acted most strictly on the rule, that what is in writing shall only be proved by the writing itself My experience has taught me the extreme danger of relying on the recollection of witnesses, however .honest, as to the contents of written instruments ; they may be so easily mistaken, that I think the purposes of justice require the strict enforcement of the rule." It is not allowa- ble, on a cross-examination, in the statement of a question to a witness, to represent the contents of a letter, and then to ask the witness if he wrote a letter to any person with such con- tents, or to the like effect, because the Court would then be put in possession of a part only of a written paper. If the witness acknowledge the letter to be in his hand-writing, he cannot then be questioned as to its contents ; but the whole ' 8 Espinasse, 213. X *JV*\, // vy ^ ftL /fj^ PhilUpa & Amos on Evidence, 441. 2 Phillips & Amos on Evidence, 4^. * id. ' ii 444 ; 4 Wendell, 286 ; 12 id. 834 ; 13 id. • Moody & Malkln, 2S& 276.' ' 338 NEW-TOEK JUSTICE. letter must be read in evidence.' "Where, howerer, a written communication or agreement between parties is collateral to the question in issue, it need not be produced ; as, where the writing is a mere proposal, which has not yet been acted upon ; " or where, during an employment under a written contract, a separate order is given by parol ; ' or where the action is for the plaintiff's share of money had and received by the defendant under a written security for a debt due to them both." To this rule requiring primary evidence, or the production of the instrument itself, there are certain statutory exceptions, making exemplifications, and certified copies of certain pa- pers, evidence, which will be noticed hereafter. There is also another exception to this rule. In the case of peace officers. Justices of the Peace, and indeed all ofl3.cers from the highest to the lowest, proof that they are reputed to be or have acted as such, is sufiicient, without the production of their appointments.' If, however, the oflicer sues to recov- er fees, or sets up any right to property vij'tute officii, it will ptie^np^^ tp show that he is an offiper de facta; he must Iso snow that ne is an ofiicer dejwre.'y^ Buttue acts of an of- ficer de facto, though his title may be bad, are valid, so far as they concern the public, or the rights of third persons who have an interest in the things done.' And an officer duly commissioned, and acting in the duties of his office, is presum- // f^ 9- HEARSAY EVIDENCE. When a witness, in the course of stating what L as come un- der the cognizance of his own senses relative to a matter in dispute, states the language of others which he lias heard, or produces papers which he identifies as having been written by particular individuals, he offers what is called hearsay ev- rdence. The term is used with reference both to that which is spoken and to that which is written. In its legal sense. ' Phillips & Amos on Evidonoe, 442. • 6 Wendell, 231 ; > id. 17; 11 id. 66T; 23 id. 'id. 444; a Campbell, 621. 490; 8 Johnson, 481; 12 id, 296; 6 Hill, 6-30. 'Moody & Jlalkln, 413. • 28 ■Wondoll, 490; 24id.6S0: 1 Dcnio, btiJl ^t <■ 4 Espinasao, 13 ; 10 Johnson, 443 ; 11 Wen- ' id. yS' /"VW* /i , iJ yp -("Jtr^ .dell, 667. «2GM^on,lB: Sl^^LSL.EJ''^^ HEARSAY EVBDENOE. 339 however, it is confined to that kind of evidence which does not derive its effect solely from the credit to be attached to the witness himself, but rests also in part on the veracity and competency of some other person from whom the witness may have received his information.' The general rule is, that testimony thus traditionary and derivative in its character, is not receivable as evidence in a cause ; or, as the rule is more generally enunciated, " Hear- say is not evidence." The language of this maxim is not strictly accurate, conveying as it does the idea, that what a person has been heard to say, is not receivable as evidence ; an assertion which every day's experience refutes. What a man has been heard to say against his own interest is not only receivable in evidence, but is generally the best evidence against him.' The maxim also conveys the idea, by implica- tion, that if the words uttered had been committed to writing, or rendered permanent in any other way, they would then be receivable ; a proposition at least doubtful ; for, written docu- ments with which a party is not identified, are often rejected.' The true idea intended to be conveyed by the maxim is, that all second-hand evidence, whether consisting of the contents of a document, or of the language of a third person, and not connected by responsible testimony with the person against whom it is offered, must be rejected.* The rule which we have already noticed, permitting secondary evidence to be given, has no application to second-hand or hearsay evidence. For, in the latter case, no matter how unanswerably the ab- sence of the original evidence is accounted for, the inferior evidence will not be received. Thus, what A., (a witness,) has heard B., (a stranger,) say, is not only not admissible in the first instance, but the clearest evidence of the death of B. wonld not render it ^o.'X^,/^^/-^^^'^ '^^^ ^-"^^ ^^ i^e loundation of tne maxim maybe found m another rule of law, which requires all evidence to be given on oath, and each witness to give his testimony under such circumstances as exposes him to all the penalties of falsehood." Therefore > Phillips & Amos on Evidence, 196. ' Best on Evidence, § 880. = 14 Massachusetts Eep. 245 ; 4 Johnson, 230 ; < id. 5 829. Best on Evidence, $ 830; Gilbert on Evidence, » id. 119 ; 2 Greenleaf; 248. • 8 Term Eep. 707. 340 NEW-TOEK JirSTICE. it is, that hearsay evidence is uniformly held incompetent to establish any specific fact, which in its nature is susceptible of being proved from the lips of those who can speak from personal knowledge.' And second-hand evidence is excluded, not merely because it creates an impression of something bet- ter. Its intrinsic weakness, its incompetency to satisfy the mind, and the frauds which might be practised under its cov- er, combine to support the rule that it is totally inadmissible." The true principle to consider, in deciding the question of the admissibility of this species of evidence is, not whether it comes by word of mouth or by writing, but whether it is original in its nature, and does not indicate any lietter source of proof.' It does not follow, because the words or writings are those of third persons not under oath, that they are to be considered as hearsay. It frequently occurs, that the very question in issue is, whether such things were written or spo- ken, not whether they were true. And in other cases, such language or statement, whether written or spoken, may be the material or inseparable concomitant of the principal fact in controversy.* Where the question is whether a party acted prudently, or in good faith, the, information on which he acted, whether true or false, is original and material evidence. ° Thus, in an ac- tion for slander, it has been held that the defendant may give in evidence, in mitigation of damages, that a third person - told him what he related." In such case, the person giving- the information should be called as the witness, and not a by- stander who overheard the conversation.' This doctrine ap- plies to all cases where the fact that a communication was made, and not its truth or falsity, is the point in controversy. Upon the same principle, evidence of general reputation, re- puted ownership, public rumor, and general notoriety, though composed of the speech of third persons not under oath, is original evidence and not hearsay; the subject of inquiry be- ing the concurrence of many voices to the same fact.' I 6 Cowen, 814; 16 Johnson, 226; 18 id. 89. » 1 Greenleaf on Evidence, § 101. a Per Marshall, Oh. J., T Cranch, 290. • 1 Binnoy, 85, 90 ; 9 Johnson, 45 « Best on Evidence, § BSO. ' '•"- f ,sr^Kvv^ iTO. * 1 Groenleaf on Evidence, § 100 ; 4 Massaohn- s j G/eetfeaf onEndenceJ § 101. setts Eep. 702; 2 Campbell, 612. HEAUSAT EVIDENCE. 341 There are certain declarations which are admissible in evi- dence, on the ground that they constitute a part of the res gesta, and are therefore admissible as original evidence, being distinguished from hearsay by their connection witli the prin- cipal fact under investigation. But such declarations must have been contemporaneous with the principal fact, and have been intended to give character to it.' Thus, the declarations of parties in relation to the terms of settlement between them, made at the conclusion of it, are admissible as part of the res gesta." So, also, where the state of mind or disposition of a person at a given period becomes a pertinent subject of in- quiry, his declarations and conversations, being part of the res gesta, may be resorted to.' But the declarations of a plain- tiff, made to a third person, as to his having done an act form- ing no part of the transaction which is the subject of the suit, are not admissible as constituting a part of the res gesta.^ ISTor are the declarations of a lender, made to a third person, after a loan, though on the same day, admissible as part of the res gesta, to prove usury.' The declarations of an agent, acting within the scope of his authority, are admissible to bind his principal, when they are part of the res gesta." But if the declarations were made sub- sequently to the transaction, they are not admissible.' The principal's own admission or declaration may generally be given in evidence against him, but the declaration or admis- sion of his agent binds him only when made during his agen- cy, and concerning a transaction within the scope of his agency." "What an agent, who makes a sale for his principal, does at the time of the sale is admissible in evidence, and so also is what he says ; and it is not necessary to call him to prove it." But where the agent's authority to act in a particular matter has ceased, his subsequent declarations, being mere hearsay, can no longer affect his principal." The test to be applied, to ascertain whether the declara- » 1 Greenleaf on Evidence, § 101 ; 9 Paige,611. 1 id. T52. » 10 Wendell, 675j^ „ , -t / /• » ' ^ Wendell, 446 ; 7 Johnson, 390. = 2 Hill, 248. ft^ •2' J Z^*"^ » J^ B s -Wendell, 281 ; 7 Johnson, 890 ; 1 Qreen- < 8 Barbour, 580. leaf on Evidence, § 118. » 1 id. 280. • Phillips and Amos on Evidence, 402. AfZi ' 4 "Wendell, 894; 6 id. 281; 6 Cowen, 90; >« 1 Greenleaf on Evidence, § 113. */jVfiiJl 34:2 NEW YOKE JUSTICE. tions offered are admissible, is, to inquire whether they are merely narrations of a past occurrence, or whether they were made contemporaneously with the principal matter in issue. In the former case, they are to be rejected ; in the latter, ad- mitted.' Upon the same ground, certain entries made by third per- sons are treated as original evidence. There are two classes of entries— those made in the discharge of official duty, and private entries. Of the latter we shall speak hereafter. In the case of the former, the entry, to be admissible, must be one which it was the person's duty to make, and must speak to that which it was his business to do, and not to extrane- ous or foreign circumstances." The party making the entry must have had knowledge of the fact, and must have made the entry at or about the time of the transaction recorded." If the party is living, and competent to testify, it is necessary to produce him.' Yet, though he is called as a witness to the fact, his entry of it is not thereby excluded. If he is un- able to call to mind the original transaction, but verifies the entry as having been made by himself, as a part of his proper emjiloyment, it may be given in evidence, and will be allowed to speak for itself.' There is another class of cases in which declarations are admissible, namely, where the question of pedigree is involved. But as that question can hardly be supposed to arise in a Jus- tice's Court, no mention is here made of the authorities on the subject. Subject to the foregoing qualifications and seeming exceptions, the general rule of law rejects all hearsay reports, whether verbal or written, given by persons not produced as witnesses." There are certain exceptions to the rule excluding hearsay evidence, which it is proper now particularly to notice. (1.) Matters of puhlio or general interest. In regard to matters of public or general interest, such as ' 1 Qreenleaf on Evidenee, § 110 ; 9 Biiigham, ! 1 Greenleaf on Evidence, § 116. 849. * 2 Hill, 68T. y= 2 Smith's Loading Cases, 188 ; 10 East, 109 ; » Id. 681. i^i, aa,; 6 Meesoa & Welsby, 166 ; 2 HUl, B31. » 1 Grconloaf on Evidence, § 124. HEAE8AY EVIDENCE. 343 the boundaries of towns and counties, claims of highways, &c.,' evidence of common reputation is received, and the declara- tions of deceased persons, who may be presumed to hare had competent knowledge on the subject, are admissible/ But this exception is admitted only in the case of ancient rights, and in' respect to persons supposed to be dead ;' and even then the declaration is inadmissible, unless it was made before any controversy arose on the subject to which the declarations relate/ These declarations are admitted as well against a public right as in its favor. Thus, where the question was, whether a landing place was pubKc or private property, repu- tation, from the declarations of ancient deceased persons, that it was a private landing place of the party and his ancestors, was held admissible.' (2.) Ancient documents. An exception to the rule rejecting hearsay evidence, is allowed in cases of ancient possession, in the admission of ancient documents in its support." The occasion calling for the admission of such evidence can seldom arise in a Justice's Court. The exception, however, is well settled by authority.' In order to guard against the manifest danger of this kind of proof, it is established, as a condition precedent to its admis- sibility, that the document must be shown to have come from the proper custody ; that is, it must be found in a place in which, and under the care of persons with whom, it might naturally be expected to be found.' Even then, it will not be sufficient, if no possession has been taken, or other act done, under it, and the land has been held adversely.' (3.) Decla/rabions of deceased fersons. Another exception is laid down in the books, as arising in cases of declarations and entries made by persons since de- 1 Best on Evidence, § 382. " Phillips and Amos on ETldencc, 286. 3 id. ' Best on Evidence, § 834. 3 11 Price, 162. ' 8 Bingham's N. 0. 200. * Best on Evidence, § 332; 1 Greenleaf on • 4 Denio, 201 ; 6 Barhour, 109; 5 Cowen, Evidence, § 132. 221 ; 2 HUl, 385. " 7 Carrlngton & Payne, 181. S44 NEW-TOEK JUSTICE. ceased, and agaiast their interest at the time of making them,' when such declarations are offered in evidence against third persons. It may well be doubted whether this excep- tion obtains in this State. In Kent v. Walton," which was an action by an endorsee against the maker of a promissory note, evidence of the declarations of the deceased payee, that the note was usurious, was held inadmissible. So, in Beach v. Wise,'' which was also an action upon a note, the defendant offered to show the declarations of the deceased payee, made while he was the holder of the note. The evidence was re- jected, the Court citing the case of Kent v. Walton, and remarking that the fact that the payee had died before the hearing did not affect the principle. In Cajpron v. Austin^ the Court remarked, that what a deceased person had been heard to say, except upon oath, or in ext/remis, when he came to a violent end, had never been considered as competent evidence. Much less, would his declarations be admissible, if they were made after his interest ceased by transfer.' These cases proceed upon the ground, that the former owner of property, whether it be a note, chose in action, or other per- sonal property, is only to be regarded as a witness, without reference to the fact that the title to the property may have been derived through him. Eegarded as a witness, his dec- larations are but hearsay, and are alike inadmissible whether he be living or dead.' The rule is different, however, in the case of real property. The declarations of a person in possession of lands are compe- tent evidence against himself, and all persons claiming imder him, for the purpose of showing the character of his posses- sion, and by what title he claims.' But his declarations after he has conveyed are not admissible against his grantee.' (4.) Dying declarations. In this State, the rule is, that the declarations, made in ex- > Phillips and Amos on Evidence, 807 ; Best id. 762 ; 8 'Wendel], 490 ; 12 id, 142 ; 6 Hill, 405. on Evidence, § 335 ; 1 Groenleaf on Evidence, » 1 id. 612. § 147. ' 4 Johnson, 280; 10 id. 377; 18 id. 880; 6 •' 7 ■Wendell, 266. Paige, 823 ; 1 Comstock, 525. ' 1 Hill, 612. 8 13 Johnson, 106 ; 6 Paige, 823 ; 10 id. 170, * 7 Johnson, 96. 188. 1 1 Blatchford's 0. 0. E. 876 ; 1 Cowen, 619 ; 7 HEAESAT EVIDENCE. 34:5 tremis, of a person wIlg would, if living, be a competent wit- ness, are inadmissible evidence, either in a civil or criminal prosecution, with the single exception of cases of homicide, where the declarations of the deceased, after the mortal blow, as to the fact of the murder, are admitted.' The declarations of a testator that a will previously executed by him was ex- torted by duress are, therefore, inadmissible.'' (5.) Testimony of deceased wHnesses. It seems to be a well settled rule of evidence, that the tes- timony of a deceased witness, who was examined upon oath on the trial of a former action between the same parties, and where the point in issue was the same that it is in the sec- ond action, is admissible on the trial of the second action, and may b^jproved by Ihosa w^ heard him give the testimony. ^^/JTM is indispensaWe, nowev'er, that the second trial should be between the same parties as the first one,* that the point in issue should be the same,'* and that the witness should be dead.' That the witness is beyond the reach of a subpoena will not render the secondary evidence admissible.' The evidence of the deceased witness may be proved by any person who will swear from his own memory, or by notes taken by any person who will swear to their accuracy. It has been said, that the person called to prove the testimony given on the former trial, must undertake to repeat the pre- cise language or words of the witness, and not merely to swear to their effect.' But in elementary works the rule is laid down, that it will be generally considered sufficient if the witness is able to OT,ear to the pbstance of what was said on , . In Clcurh v. Vorce^" the minutes token by counsel on a for- mer trial were offered in evidence and excluded. The witness testified, that he took very full and particular minutes ; that ' T Johnson, 95 ; 15 id. 286. 5 Denlo, 8T0. » 2 id. 81. '6 Cowen, 162 ; 8 Barbour, 5S1. * Pliillips and Amos xm^rad6nce,.854; 2 ^6 Cowen, 162. Johnson, IT; 15 id. 639.^ V ttt^tii- /iiL^i'f " Phillips and Amos on Evldenco, 854; 1 * 6 Cowen, 162. * J I Greenleaf on Evidence, § 165. " id.; 8 Barbour, 531. i» 15 Wendell, 198. « id.; 2 Johnson, IT ; IT id. 1T6 ; B Hill, 295 ; '^ 346 NEW-TOEK JUSTICE. he intended to take down the words of the former witness, but could not pretend to give his precise words ; that he could not swear to the testimony except from his minutes, and could not testify that he had taken down every word of the testimony, but intended at the time to take down all that was ma- terial. On appeal. Savage, Ch. J., remarked : " With respect to the testimony of a deceased witness, the rule is laid down with much strictness ; but if nothing will answer but an ex- act transcript of the testimony of the witness, in his very words and all his words, it will exclude all such testimony. There are few or no cases where a cautious and prudent man will swear that his notes of testimony of a witness, taken down at the time, contain his very words and all his words. It seems to me that the witness' notes should have been received, con- nected with his oath as to their accuracy. It ,was his inten- tion at the time to take down* the words of the former witness, not the substance or legal effect of his testimony. He was ready to swear to his belief as to the accuracy of his minutes, and it was his intention to take down the very words of the deceased witness." A new trial was granted, and, on a sec- ond appeal,' Mr. Justice Bronson adopted as his own the views thus expressed by Ch. J. Savage. In Hnff v. Bennett^ the minutes of the judge who presided on the former trial were offered in evidence and rejected. The judge swore that he presided and took notes of the testimony on the former trial ; that he could not recollect, of his own knowledge, what the witness testified to on the trial, except as he referred to his minutes ; that he would not say that they contained the testimony of the witness accui-ately ; that he might have omit- ted things which the witness testified to. On appeal, Oak- ley, Ch. J., remarked : "It was contended upon the trial, as was also strongly urged upon the argument before us, that the minutes were of themselves evidence. But we are not aware that they are ever regarded as such. If the party ma- king them swears that they are correct, or that he has no doubt of their being so, in such a case, we think they would be admissible. But where this is not tlje^c^se, the minutes ^-^ •' '•" i'' 1 13 Wemtoll, 'm.jS''/f'% -^^ ^ t 15 Wendell, 198 ; 19 id. 232. » 14 MassacliUBetts Kep. 284 »4Bandford,120. 348 KEW-TOEK JUSTICE. thority.' In cases where the question arises, the proper inquiry seems to be, whether the witness was competent at the time of giving his testimony. His subsequent conduct, and the consequences of it, can only affect his credibility. Gen- erally speaking, if the witness was competent when he gave his testimony, it should be r(jceived ; if he was then incompe^ .tent, it should be .rejected. ''/.v^aij/iAX"'*/*^ ^>! J>f; \''7; ^ Under the head of exceptions to the rule rejecting hearsay evidence, it has been usual to class the admissions and confessions of a party, considering them as declarations against his interest, and therefore true.'' But as many admissions are made under circumstances which preclude the supposition that the party making them intended or believed that they would militate against his interest, it is obvious that their competency as evidence must in some cases depend upon some other reason than the one above given. But however the admission may have been made, whether intentionally or unintentionally, if it is offered against the party making it, it is competent evidence ; ° if it is offered in his favor, it is in- competent.' And a party cannot give in evidence, in his own favor, what he swore to on a former occasion, though it may be given in evidence against him.' (1.) £y whom an admission may he made. The general rule is, that the declarations of a party to the record, or of one identified in interest with him, are, as against such party, admissible in evidence." The admission must be brought home to the party against whom it is to be used, or to some one identified with him ; ' and being so brought home, the rule applies, whenever the party has any interest in the action, whether others have a joint interest with him on the same side, or not, and whateyer may be the relative amount of the interest." i^^--'- ^^^^-'cttr.- / ^^ /Ua <-'■, ~o^'^'r'< '// 4/5, / > 1 Starlde on Evidence, 265. 6 9 Barnowall & Cresswell, 936 ; Phillips & ' 1 Greenlcaf on Evidence, § 109. Amos on Evidence, 892. > Best on Evidence, § 800, ' id. < id. § 851. ' 1 Greenleaf on Evidence, % 1T2. »7 JohnBOD, 182; 8 Barbour, 410. ADMISSIONS. 349 The Code requires every action to be prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express trust, and a person expressly authorized by statute, may sue without joining the person for whose benefit the action is prosecuted.' This pro- vision narrows considerably the question as to what persons are to be deemed parties, and renders it unnecessary to consider the cases which arose under the former practice, when actions could be instituted by parties having no real interest in their subject matter. The exceptions just referred to will be noticed in their proper order. Though the admissions of a party to the record are gener- ally receivable in evidence against him, yet when there are several parties on the same side, the admissions of one are not allowed to affect the others, unless there is some joint interest between them." Thus, in an action upon a joint note, the admission of one of the makers, by suffering judgment by default, does not obviate the necessity of proving his sig- nature as against the other maker." But, in the absence of fraud, if the parties have a present joint interest in the mat- ter in suit, Avhether as plaintiffs or defendants, an admission made by one is evidence against all. They stand to each other in this respect in a relation similar to that of existing co-partners." The admission, however, to be admissible to charge all, must have been made during the existence of the joint interest or copartnership, and that relation must have been avowed. An admission of the indebtedness of a firm, made by one partner after its dissolution, is not evidence against the other partners.' And, if A. contract a debt in his own name, his subsequent declaration that it was contracted for A. & Co., is inadmissible to charge his firm." It is a joint interest and not a mere community of interest that renders such admissions receivable.' Therefore, the ad- missions of one tenant in common are not receivable against his co-tenant, though both are parties on the same side in the « Coae, §§ Ul, 113.^- ', . <;-». 9 il 57, 420 ; T Barbour, 143. '4Coweii, 483. <^ V '* V "^ « 21 Wendell, 865. » 1 Espinasse, 135 ; 1 East, 48. ' '1 Greenleaf on EviJence, § 176 ; 3 Johnson, * 1 Greenleaf on Evidence, § 174. 686 ; 6 id. 267 ; 10 id. 66. * 8 Johnson, 536 ; 16 id. 409 ; 7 Cowen, 660 ; 350 HEW-TOEK JTTSTICK. action.' An admission by one of several executors or adminis- trators, that a debt is due from his testator or intestate, does not conclude the others from showing that the debt has been paid.' Nor is such an admission sufficient to establish the original demand against the estate ; ' nor can it be received in evi- dence as against co-executors or co-administrators, or as against heirs or devisees.* An ajypa/rent joint interest will not suffice to render an ad- mission by one, competent evidence against others, where the reality of that interest is the point in controversy.' A foun- dation must first be laid by showing ^ima /am the exis- tence of the joint interest." Thus, the declaratious of one partner are not admissible to prove the partnership, when that is the point in question. They are evidence only against himself, not against others.' So, also, in an action upon a joint note, the execution of which was in issue, the admission of his signature by one defendant only, was held insufficient to entitle the plaintiff to recover against him and the other makers, though their signatures had been proved ; the point to be proved against all being a joint promise by all.' An admission may have been made by a party when act- ing in a different capacity from that in which he is concerned in the suit ; and it seems to be considered, in such a case, that his admission ought not to be evidence against him.' The admission, therefore, of an executor, administrator, or guar- dian, made before he was clothed with his trust, or of a next friend, made before the commencement of the action, cannot be received, either as against the ward or infant in the one case, or against himself as the representative of heirs, de- visees, or creditors, in the other ; " though it may bind the person himself, when he is afterwards a party, siio jure, in another action." Notwithstanding the provisions of the Code requiring ac- ' 4 Cowen, 488. ' 10 Johnson, 86 ; T WendeU, 216. >16 Johnson, 2T8; llWendell, 98. ^1 Espinasse, 185. • 4 Oowen, 498. » Phillips & Amos on Evidence, 898. < 8 id. 612 ; 6 Johnson's Oh. E. 860 ; 5 Bar- " 2 Starkie, N. P. 41. hour, 898. "1 Greenleaf on Evidence, §1T9; 3 Bar- " 1 Greenleaf on Evidence, § 177. tour's Ch. E. 867. •id. ADMISSIONS. 351 tions to be prosecuted in the name of the real party in inter- est, questions may still arise in regard to admissions made by persons who are not parties to the record, but yet are inter- ested in the subject matter of the action. The law in regard to this species of evidence looks chiefly to the real party in interest, and gives to his admission the same weight as though he were a pai'ty to the record.' Thus, the admissions of a cestui que trust are competent, so far as his interest and that of his trustee are identical ; and the confessions and declara- tions of a deputy sheriff, made while process is in his hands, and in the course of execution, are admissible evidence to charge the sheriif ; " sometimes, for the reason that they are part of the res gesta," and at other times on the ground that the deputy, being liable over to the sheriff, is the real party to the action.' Admissions made by a stranger to an action are sometimes received in evidence,' where the question is, whether a par- ticular claim might have been enforced against such stranger. Thus, in an action against a sheriff for an escape, the debtor's acknowledgment of the debt, being sufficient to charge him in the original action, is sufScient, as against the sheriff, to support the averment in the complaint that the party so esca- ping was so indebted." So, also, the admissions of a bank- rupt, or entries made in his books before his bankruptcy, are good evidence to prove a petitioning creditor's debt.' The admissions of a third person are sometimes received in evidence against a party who has expressly referred anoth- er to such third person for information,' provided the admis- sions were strictly within the subject matter in relation to which the reference was made." Thus, if A. refers B., for in- formation upon any particular subject, to C, what C. says concerning it, when applied to by B., or his agent, is evidence for B. in an action against A." In the case of Dcmiels v. Pitt" which was an action of assumpsit for goods sold, the plaintiff ' 1 Greenleaf on Evidence, § 180. ' 2 Espinasse, 695. 2 10 JohnBon, 478 ; 6 Barbour, 79. ' 1 Campbell, 876. 'id. « 1 Greenleaf on Evidence, % 182. < 1 Lord Eaymond, 190. • 4 Wendell, 561. » Phillips Sir T, Eaymond, 153 ; 1 Modem Eep. 166. • 18 Johnson, 88T. ADMISSIONS. 353 It is begging tlie question to suppose that it will lead to per- jury. If the promise is binding, because the making the proof or affidavit is a consideration for it, the defendant must necessarily be precluded from gainsaying the fact. He vol- untarily waives all other proof ; and, to allow him to draw in question the verity or correctness of the proof or affidavit, would be allowing him to alter the conditions of his ens-ase- ment, and virtually to rescind his promise." This case, ne- cessarily decides, also, that the declarations of the third per- son are competent evidence. In Hurd v. Pendrigh^ the question raised was, whether an affidavit given under circumstances similar to those in Brooks V. Ball^ just cited, was admissible in evidence. Nel- son, Ch. J., remarked : " The affidavit was properly received, in connection with the defendant's agreement, (to pay the amount, if sworn to,) as evidence of his own view of the just- ness of the plaintiff's claim. Taking the whole together, it amounted to an admission that the plaintiff was entitled to recover the value of the goods sworn to. Indeed, if the plaintiff had discontinued this suit, and commenced an action of assumpsit, predicated upon the promise, the affidavit would have afforded a valid and binding consideration.'' If this i3 so, it was properly received in evidence to show the extent of the defendant's conceded liability." Admissions made by a wife will bind her husband only where she has authority to make them.' But, where a hus- band permits his wife to act as his agent in a particular bu- siness, he is bound by her acts and admissions, and they may be given in evidence against him.* The admissions of a principal are receivable in evidence in an action against his surety, upon his collateral undertaking, where they were made during the transaction of the business for which the surety became bound, so as to become a part of An aamission by an attorney oi record binds his client m 1 2 Hill, 502. * 1 Espinasse, 142; 10 Johnson, 88; 4-'^*^ " 18 Johnson, 83T. bonr,222. ,' '' /' .,. , .." /., s Phillips and Amos on Evldenee, 403; 1 ' Phillips & Amos on Eyidenoe, 411, Greenleaf on Evidence, § 186, 24 354: NEW-TOEK JUSTICE. all matters relating to the progress and trial ot the cause.' The admissions or declarations of a vendor of personal property, whether made before or after the sale, cannot be given in evidence as against the subsequent owner f nor are his declarations competent for the vendee in an action for the property f nor are they admissible to prove a sale of such property to tJie person claiming iindar hinj.'-^''''';',,'/- '' It is provided by statute, that m suits oy or against an ag- gregate corporation, the admission of any member thereof, not named on the record as a party to such suit, shall not be received as evidence against such corporation, unless such admission was made concerning some transaction in which such member was the authorized agent of such corporation.^ The question in all these cases being, whether the party made the admission, and not whether it was true in fact, the admission may be proved by any competent witness who heard it made, without calling the party who made it. The admission, when competent at all, is received as original evi- dence, and not as secondary." (2.) The time cmd circumstances of the admission. If the admission of a party is in the form of an oifer to pay so much for the sake of buying peace, it is inadmissible as evidence of the demand. An admission of a debt, if proved, is the strongest evidence ; but an offer to pay money by way of compromise, is not such an admission.' An unqualified admission, however, of a particular fact, though made in a negotiation for a compromise, is evidence against the party making it.' Admissions made before an arbitrator are receivable on a subsequent trial of a cause, the reference having proved inef fectual." There is no difference in regard to the competency of ad- 1 1 Ohio Eep. 270 ; 18 Mnssacbueetts Ecp. » 2 E. S. 40T, § 80 ; 7 Howard.s Prao. Ecp. 94. 319 ; 1 Pickering, 161, 84T j 1 'WeiidGll, 108. « 1 Greonloaf on Evidence, § 191. i'i^iVi Id. 161; 6 Jolinson, 412; 1 Barbour's ' Bailor's N. P. 286 ; 8 Espinasse, 118. ■ 6h. E. 106 ; 1 Barbour, 282. ' •' » 4 Oowen, 61T, 636 ; T WendeU, 864 ; 16 id. » T Cowcn, 762. 682 ; 8 Denio, 58. * 1 Comstook, 619. » 8 Espinosse, 118. ADMISSIONS. 855 missions, whetlier they are direct or indirect.' Thus, in an action upon a bill of exchange, where the attorney for the de- fendant gave the plaintiff notice to produce all papers rela- ting to the bill of exchange, describing it as having been " ac- cepted by the defendant," this was held to be pi^ima facie evidence of the acceptance." (3.) Implied adtmssions. Admissions are sometimes implied from assumed character, language and conduct. Thus, to prove a general allegation that a party holds a particular office, it is sufficient to show that he acts in that capacity.' So, if an account be rendered against a party and he does not object to it within a reasona- ble time, his implied admission of its correctness is presumed.* So, also, if a principal does not dissent from the acts of his agent within a reasonable time, and give notice thereof, his assent will be presumed.' And a promise by a party to pay a note or bill, after maturity, is an implied admission of his lia- bility, and is sufficient evidence of a protest for non-payment, and of notice of dishonor.' A notice to quit at certain time, if received by a tenant without objection, is an admission that his tenancy expires on that day.' cAt respect marked, that they should be always scrutinized, and received with great caution ;' and no rule of evidence is better settled than that which requires the whole of an admission or decla- ration to be taken together. A part cannot be taken and a part rejected." ^^^^-^^^/"-^ ^>£-/^_^ . S Mr.u. The general rule is, that where the admission of a party is resorted to as evidence against him, he is at liberty to call out the whole conversation of which the admission was a part." But the additional conversation should be relevant to the mat- " 1 Espinasse, 342; 4Denio, 455. Johnson, 800. ' Eyan & Moody, 282. ' 2 Campbell, 188. = 8 Johnson, 481 ; 12 Id. 296 ; 1 Oowen, 251 ; ' id. 659, 10 Wendell, 264. * 4 Johnson, STT ; 8 Johnson's Oh. E. 569 ; 2 » 8 Johnson, 427 ; 9 id. 141 ; 10 id. 88, 866. Barbour, 686. ' ' ' / 2 • - ■ ' "2 Hill, 440 ; 8 id. 144. ' 1 Oauies 689 ; 1 Johnson's Cases, 110 ; 12 'id.659. ,^ \ ■e 1 Wendell, 662 ; 6 id. 268. 2-/ / . / "^ '^' 356 NBW-YOEK JXrSTIOE. ter in issue, and relate to tlie point or fact called for by ques- tions on tlie other side.' A party is not at liberty to call for sucb parts of a conversation had by him as relate to indepen- dent assertions which would operate in his favor upon the general merits of the case, but have no connection with the admission brought out by the other side.' He has a perfect right, however, to prove such other parts of his conversation as tend to explain or modify his admission.' Therefore, if a defendant admits that he received money from the plain- tiff, but that it was his due, the whole admission must be ta- ken together, and is in fact a denial of the plaintiff's claim.* And if a party acknowledges that he killed another's dog, but says that the dog attacked him, the whole conversation must be admitted, and amounts to a justification." If that part of the confession which discharges the party is in itself highly improbable, or if there be other evidence, though it be slight, tending to discredit it, the jury may reject it, and act upon the other part alone. But, where there is nothing improbable in it, and it is consistent with the other testimony in the c a^y '^^^^^^^"^^^^ y (6.) The conclusiveness of an admission. ■ Verbal admissions, as such, are not, as a general rule, held conclusive upon the fisyty making them ; but if they are not explained or avoided by evidence, neither the Justice nor the jury are justified in disregarding them.' An admission made by the payment of money into Court, is conclusive upon the party paying it, as to every fact which the plaintiff would be obliged to prove in order to entitle him to recover it ; and a tender out of Court admits the same facts.' But the admission goes no farther. If, tlierefore, the con- tract is illegal or invalid, the payment of the money into Court gives it no validity." Where the admission has been acted upon by others, it is > 2 Uill, 440, Boto. ' 1 Greenleaf on ETidence, § 204, » 24 Wendell, 850. /? .<- » Id. § 205; 6 Meeson & Welsby, 9 ; 7 John- « Id. ; & Barljour, 451. *-• -J/hit^A- i,^, son, 315 ; 18 Wendell, 890 ; 14 id. 228 ; 2 Hill, 4 8 Johnson, 42T. 638 ; 1 Barbour, 114. ' 10 id. 865 ; 11 id. 161 ; 15 id. 229 ; 1 Denio, ' 1 Greenleaf on Evidence, § 206 ; 2 Espin- 141. asso, 4S1. • 2 Hill, 440. /J EVIDENCE EXCLUDED FEOM PUBLIC POLICY. 357 conclusive against the party making it, in all cases tliat may arise between him and those whose conduct it has influenced.' Thus, a tenant, who has acted as such, and paid rent, is not permitted to set up title in a third person as against his land- lord ;' and a bailee of goods cannot, in an action to recover their possession, dispute the title of the bailor.' But where an admission, either verbal or in writing, has not been acted upon, it is not conclusive upon the party making it, although it is competent evidence.* ISTor does a receipt, although ab- solute in its terms, and expressed to be in full, preclude the party giving it, from explaining it by parol evidence." '^'^ ^, 11. EVIDENCE EXCLUDED FROM PUBLIC POLICY. There are some kinds of evidence which the law excludes from public policy, because greater mischief would probably result from requiring or permitting its admission, than from wholly rejecting it." Thus, communications made on the faith of that professional confidence which a client reposes in his counsel or attorney, cannot be revfealed in a Court of Justice to the prejudice of the client.' The expediency of this rule depends not so much upon the impropriety of violating the confidence reposed, as upon the consideration, that the incon- venience which would ensue if no such confidence were re- posed, would preponderate over the direct mischief produced by the chance of a wrong decision, or a failure of justice, re- sulting from the want of evidence. ° Therefore, where an at- torney is professionally employed, any communication made to him by his client, with reference to the object or the sub- ject of such employment, is under the seal of professional confidence, and is a privileged communication ; and the seal thus placed by the laM^ remains sacred forever, unless removed by the client." But if the client, after the relation has ceased, voluntarily, and without being drawn to it by artifice, repeats I 8 Barbour, 102. id. 319 ; 5 id 63 ; 8 id. 889 ; 9 id. SlO.i 1 Paige^^ ' 1 Cain as, 444 ; 8 Johnson, 499 ; 1 Cowen, 18 ; 8 Barbour, 100 ; 8 id. 43. ' " ■ .' 248 ; 7 id. TIT ; 7 Wendell, 401. » 1 Greenleaf an Evidence, § 236. s 11 Massachasetta Eep. 219 ; 8 Pickering, ' 4 Wendell, 55S; 1 Hill, 33; 6 Barbour, 116. 88 ; 8 Wendell, 610 ; 3 Hill, 216. e Pliillips & Amos on Evidence, 1T4. / « 1 Greenleaf on Evidence, § 209. « 19 Wendell, 853; 5 Barbour's Ob. E. 628. •*£ » 1 Johnson's Cases, 145; 2 Johnson, 878; 8 * * Cj-_.« f J- /l^y " 358 msw-TOEK jxtstice. ' to his attorney a communication previously made to him, it is not protected.' The privilege extends only to information derived from the client, as such, either by oral communications, or books or papers shown to the attorney or counsel, or put into his hands, by the client, and not to information derived from other per- sons or sources, while acting as such attorney or counsel.' The policy of the law also excludes the testimony of a wife, when her evidence would be a violation of the confidence which arises from the marriage relation. She must be exclu- ded, therefore, whenever she is called against the husband, or his representative, and is asked to disclose any fact impar- ted to her by her husband in the trust and confidence of the marriage relation." It is provided by statute, that no minister of the gospel, or priest of any denomination whatsoever, shall be allowed to dis- close any confessions made to him in his professional charac- ter, in the course of discipline enjoined by the rules or prac- tice of such denomination.'' It is also provided, that no per- son duly authorized to practise physic or surgery, shall be al- lowed to disclose any information which he may have ac- quired in attending any patient in a professional character, and which information was necessary to enable him to pre- scribe for such patient as a physician, or to do any act for him as a surgeon.' The privilege thus accorded, as in the case of the privilege given by the common law to communications made to a legal adviser, is the privilege of the party, and not of the witness. If the party waives it, the witness may be ex- amined." A physician consulted by a party as to the means of procuring an abortion is not privileged, under this statute, from testifying to the fact on the trial of the party.' 12. EVIDENCE REQUIRED BY THE STATUTE OF FRAUDS. By this statute, which has been treated of in a previous por- tion of this work, '.some. written evidence is universally requir- > 18 Johnson, 492. « 2 E. B. 406, § T3. 2 3 Johnson's Cases, 198 ; 11 Puigo, 87T. • 14 Wendell, 687. a 8 id. 86 ; 8 id. 4T ; 2 Hill, 181 ; 8 id. 613 ; 9 ' 21 id. 79 ; 4 Paige, 60. ■Burliour, 498. ,'^" , .' 'Anto, p. 40. * 2 K. S. 40JS, § 72 ;fl3 Wendell, 811. ' EVIDENCE EEQtriEED BY STATTTTE OF EEAUDS. 359 ed of all conveyances of lands, or of any interest in lands, other than leases for the term of one year, and of all trusts and pow- ers over or concerning lands, or in any manner relating there- to, and of every grant, assignment or surrender of any such estate, interest, trust, or power.' The writing which the statute requires, must be signed by the party creating, granting, assigning, surrendering or declaring the estate, in- terest, trust or power, or by his lawful agent thereunto author- ized by writing.^ So, also, every contract for the leasing for a longer period than one year, or for the sale, of any lands, or of any interest in lands, must be evidenced by a written contract, note, or memorandum, expressing the con- sideration, and subscribed by the party by whom the lease or sale is to be made, or by his lawfully authorized agent.' By the same statute, written evidence, expressing the consid ■ eration, and signed by the party to be charged therewith, is required in the following cases : 1. Every agreement that by its terms is not to be performed in one year from the making thereof ; 2. Every special promise to answer for the debt, de- fault, or miscarriage of another person ; 3. Every agreement, promise, or undertaking, made upon consideration of marriage, except mutual promises to marry.' So, also, every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, is void, unless, 1. A note or memorandum of such contract is made in writing, and sub- scribed by the parties to be charged thereby ; or, 2. Unless the buyer accepts and receives part of such goods, or the evi- dences, or some of them, of such things in action ; or, 3. Un- less the buyer pays, at the time, some part of the purchase money.' And further, every grant or assignment of any ex- isting trust in lands, goods, or things in action, is void, unless the same is in writing, and subscribed by the party making it, or by his agent lawfully authorized." The signing of the agreement by one party only is sufficient, provided it be the party sought to be charged. He is estop- ped by his signature from denying that the contract was valid- 1 a E. S. 134, § 6. * id. § i. 'id. » id. 136, §3. ' id. 135, §§ 3, 9. « id. X37, § 2. 360 NEW-TOEK JUSTICE. ly executed, though the paper be not signed by the other par- ty who sues for a performance. The signature may be made with a lead-pencil ; and if the name is inserted in such a man- ner as to have the effect of authenticating the instrument, it is immaterial in what part it is found.' The contract must be stated with reasonable certainty, so that it can be understood from the writing itself, without having recourse to parol proof Unless the essential terms of the agreement can be ascertain- ed from the writing itself, or by a reference contained in it to something else, the writing is not a compliance with the stat- ute; and the agreement, if thus defective, cannot be supplied by parol proof, for that would introduce the very mischief which the statute of frauds was intended to prevent.' 13. PAROL EVIDEN'CE TO VARY WRITTEN" INSTRUMENTS. It is a well-established rule of evidence, and one subject to but few exceptions, that written agreements, whether special- ties or simple contracts, and whether within or without the statute of frauds, are not to be contradicted, varied, or mate- rially affected by oral testimony ; ' or, as the rule has been more briefly expressed, parol contemporaneous evidence is inadmissible to vary or contradict the terms of a valid, written instrument. V'^, - <• ■ ^'- '' ■ .-.-'-'"' ■'^ ^^ ^ The effect of this rule is, to exclude any other evidence of the language or words used by the parties, than that which is afforded by the instrument itself" Thus, where a promissory note is drawn, and no time of payment is mentioned, it is pay- able immediately, and oral evidence is inadmissible to show a different time of payment.' JSTor can such an instrument be contradicted, or its legal effect be controlled, by oral evidence that it was given under an agreement that it should be void on the happening of a certain event,' or should have no valid: -Ul^ except in a certain event." ''■'"' <»••<'> -'j ' _ /Cc,' ''^ Written instruments are to be construed accordincj to their ' 2 Kenfs Comm. 511 ; 14 Johnson, 484. 158. ild 8. .^. » Phillips & Amos/i Evidence, 758. .pSv /•}■& s 18 id. 297 ; 1 Johnson's Ch. E. 280, 281. ' 1 Johnson, 4G7. 1^^ /<> .y/T^. (^, S' ■> 1 Johnson's Cases, 273; 8 Johnson, 875; 11 '8 id. 189. id. 201 ; 1 Cowon, 249; 6 id 497; 9 1(1, 747 ; 6 » 1 Oowen, 249. Hill, 219 ; 8 Barbouv, 102, 205, D35 ; 2 Co.TiBtock, » 1 Hill, 116. PAEOL EVIDENCE TO VAST WEITTEN mSTEUMENTS. 361 sense and meaning, as collected from the terms used ; whicli terms are to be understood in their plain, ordinary, and pop- ular sense, unless, by the known usage of trade, they have ac- quired a meaning distinct and separate from their popular sense, or unless the context indicates that, in the particular instance, they must be understood to have a special and pe- culiar meaning, in order to effectuate the immediate inten- tion of the contracting parties.' Where a part of a contract is printed and a part written, greater effect must be given to the written words, they being the terms which the parties themselves have chosen to ex- press their meaning ; the printed words being a formula, ap- plicable as well to the agreement in question as to other agree- ments similar in character." The rule, that a written instrument cannot be explained by oral testimony, applies only to parties and privies to the agreement. They are estopped from contradicting their written undertaking. But the rule does not extend to stran- gers who have an interest in investigating and knowing the real truth of the case. Thus, in a contest between the overseers of the poor of two towns, relative to the settlement of a pauper, the overseers of one town having proved that the pauper had purchased a lot of land, and given back a mortgage for less than the consideration expressed in the deed, the overseers of the other town were permitted to show by parol proof that the pauper paid no consideration for the land.' "Where the instrument is written in a foreign language, a translator may be called to read it to the jury. Where the difBculty arises from the hand-writing, one skilled in decipher- ing hand-writing may be called ; and where it arises from a doubt as to what the words really are, it is for the jury to de- termine what they were meant to represent.' If the instru- ment does not purport on its face to be a complete agreement between the parties, and if the contract is one not required to be in writing, oral testimony is admissible to supply the de- ficiency." I 4 East, 185. 4 18 id. lOT ; 4 HUl, 129. 'id. » 25 Wendell, 41T. . < ' 1 Johnson, 229. 362 NEW-TOEK JUSTICE. Yery different questions, however, from those decided in the above cases arise, where it is proposed wholly to annul, by parol evidence, a written instrument, by showing that it was invalid ab initio, or to show that since its execution new terms have been introduced and substituted by the parties, or that the instrument has been entirely abrogated by them. (1.) Pa/rol evidence to annul written inst/nmients. In an action between the parties to a written instrument, parol evidence is admissible to show that it is altogether void, or that it never had any legal existence.' And this applies to all contracts, whether under seal or not." Actual fraud may be proved by parol.' So, too, it may be shown that a con- tract was made for the furtherance of objects forbidden by law;* or that the instrument was obtained by duress,' or when the party was non compos mentis, or intoxicated," or that it was never delivered,' and therefore never had any legal ex- istence in the hands of the holder. (2.) Pa/rol evidence to show a, subsequent variance of a written agreement. We have before stated the general rule, that oral testimony is inadmissible to contradict, vary, or materially affect writ- ten agreements ; but this rule does not exclude parol evidence of fraud, nor does it exclude parol evidence of the enlarge- ment of the time for the performance, or a waiver of the per- formance, of written simple contracts." If the agreement be by deed, it cannot in general be dis- solved by any executory agreement of an inferior nature." But any obligation in writing, not under seal, may be totally 'dissolved by a subsequent oral agreement;" or it may be merg- ed in a new and distinct agreement upon a new consideration ; or the time for performance may be enlarged ; or performance may be waived ; " of any of which changes or variances parol evidence is admissible." > Phillips & Amos on Evidence, 757 ; 1 Green- ' 10 Wendell, 810. leaf on Evidence, § 284. 8 1 Johnson's Cases, 22 ; 1 Cowen, 249. s id.; 20 Johnson, 478; 11 Wendell, 684; 6 » 10 Wendell, ISO; 13 id. Tl; 21 id. 623; 4 Barbour, 588. Hill, 534. s 12 Johnson, 887. "° 12 Wendell, 446. < 1 Smith's Leading Cases, 164, 103. " 8 Johnson, 628. » 15 Johnson, 2D6. " 1 Groenleaf on Evidence, § 803 ; 1 John- • 2 Kent's Comm. 451 ; 8 Cowen, 446; 2 eon's Coses, 22; 1 Cowen, 249; 5 id. 497; 7 id, Palgo, 80. ^; 9 Wendell, 63. PAEOL EVIDENOE TO VAET WEITTEN mSTEUMENTS. 363 (3.) Parol evidence as to the consideration of written instru- ments. It is provided by statute, that in every action upon a sealed instrument, and where a set-off is founded upon any sealed instrument, the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted, in the same manner, and to the same extent, as if such instrument were not sealed.' But the defence thus allowed cannot be made, unless the defendant pleads the same, or gives notice thereof, at the time of pleading the general issue, or some other plea denying the contract on which the action is brought." Under these provisions of the statute, a want or failure of consideration in a sealed instrument, as well as fraud or ille- gality, may be shown by parol testimony,' if the defence has been properly pleaded, or notice thereof given.' The statute, however, does not change the rule, that parol evidence is inad- missible to contradict or vary a written agreement. It merely allows evidence to be adduced, which was previously availa- ble only in a cross-action, or in another form. Therefore, in a suit upon a bond conditioned to convey lands by a certain day, parol evidence, to prove that the conveyance was not to be made until the obligee had paid a sum of money, has been held inadmissible.' The consideration of negotiable instruments, as between the original parties, may be inquired into, and a total or partial failure of consideration be shown by parol evidence." (4.) Usage. Parol evidence of usage is admitted, either to interpret the meaning of the language of a contract, when it is equivocal and obscure, or to ascertain its nature and extent, in the ab- sence of express stipulations.' So, also, evidence may be re- ceived of a mercantile usage, to show the meaning of the terms used in a contract.' But such evidence will not be re- ceived to contradict a settled rule of law,° or to give a differ- 1 2 E. S. 406, § 7T. 301 ; 20 id. 130 ; 7 Cowen, 822 ; 9 WenddJ, 27S> Md.§78. 13 id. 605. / X ) ^ _. ._ » 11 Wendell, 106 ; 14 id. 195 ; 15 id. 851, 502. ' 1 Greenleaf on Evidence, § 292. « 21 id, 626 ; 25 id. 107 ; 5 Hill, 66. » 12 Wendell, 566. 5 18 WendeU, 627. » 2 Johnson, 327 ; 14 id. 316 ; 6 Hill, 43L « 4 Jolinson, 296; 7 id. 26 ; 11 id. 60 ; 17 id. 364 NBW-TOEK JITSTICE. ent meaning to a term whicli has a legal or statutory signifi- cation ;' as, for example, to prove that " ton " in a contract was meant by the parties as gross weight, or 2240 pounds, the statute having deiined it as 2000 pounds."" The proof of usage, to vary the usual import of words in a contract, ought to be so clear, as to leave no doubt that the parties contracted in reference to it. The terms of the con- tract, in their ordinary construction, must prevail, unless there is evidence that they have a particular meaning attached to them by the usage of trade — a usage known to the party at the time of contracting, or which he is presumed to have known and assented to. Thus, a memorandum, acknowledg- ing the receipt of grain in store, or on sale, imports a bail- ment ; but proof is admissible, to show that, by the usage of dealers in grain, the memorandum means a sale, and that the parties so understood it.° A mercantile usage cannot, how- ever, be proved by the understanding of mercantile men as to the law, .but only by proof of their acts and customs.^* . , , , 14. COMPETENCY OF WITNESSES. The instruments of evidence are divided into two general classes, namely, unwritten and written. By unwritten evi- dence is meant the testimony given by witnesses viva voce, in open Court, or before persons authorized by law to act as magistrates, commissioners, &c. In a former portion of this work we considered the means by which the attendance and testimony of witnesses may be compelled, and we now propose to Consider who are proper and competent as witnesses. (1.) Persons excluded ly statute and hy the common laic. There are certain classes of persons, whom, on account of some personal disability or defect, the law excludes from giv- ing testimony. One of these classes comprehends those per- sons who are deficient in understanding, or, in other words, who are idiots, lunatics, or madmen. It makes no difference from what cause the defect of understanding may have arisen, > 1 Johnson, 192; 2 !d. 831. = 4 mil, 106, lOT. 5 Laws of 1851, chap, 134, § 7 ; 9 Palgo, 188. « 16 WendoU, 482 ; 22 id. 216. COMPETENCY OF WITNESSES. 365 nor whether it be temporary and curable, or permanent. While the deficiency exists, be the cause what it may, the person is not competent as a witness.* If he is offered, proof is admissible to show his incompetency." If objection is made, that an infant offered as a witness is incompetent, from a de- ficiency of understanding arising from immaturity of intellect, he should be examined in presence of the party objecting to his capacity, and if he appears to have sufficient natural intel- ligence, and to have been so instructed as to comprehend the natm'e and effect of an oath, he may be admitted to testify, whatever his age.'' Persons who are intoxicated are within the principle of the above rule ; for, as has been well said, " intoxication is a minor madness," producing a temporary derangement of the mind, and incapacitating the person affected from narrating events in a credible manner. A Justice has power to decide, from his own view of the situation of the witness offered, whether he is intoxicated to such a degree that he ought not to be heard, and, if he is, to exclude him." Another class comprehends persons who have been con- victed of infamous crimes. It is provided by statute, that every person who shall, upon conviction, be adjudged guilty of perjury, or of subornation of perjury, shall not thereafter be received as a witness to be sworn in any matter or cause whatever, until the judgment against him has been reversed.' The statute also provides, that no person sentenced upon a conviction for felony, shall be competent to testify in any cause, matter, or proceeding, civil or criminal, unless he be pardoned by the governor, or by the legislature, except in the cases specially provided for by law ; but that no sentence upon a conviction for any offence other than a felony, shall disqualify or render any person incompetent to be sworn, or to testify, in any cause, matter, or proceeding, civil or crimi- nal." The excepted cases in which convicts are com petent witnesses, are those in which the offence is charged to have been committed in a county or state prison, while the witness 1 1 Greenleaf on Evidence, § 865 ; 10 John- * 16 Johnson, 143. son, 862 ; 16 id. 143. = 2 E. S. 681, §§ 1, 4 2 10 id. 362. • id. TOl, § 23. = 13 id. 98 ; 21 WendeU, 608. 366 NEW-TOEK JTTSTieS. was confined therein ; and then, one convict is a competent witness for or against another.' "Where the objection is made, that the witness offered has heen convicted of a felony, parol evidence is inadmissible to prove the incompetency." If no record of judgment was made up, the incompetency must be proved, either by producing a copy of the minute of the conviction, with the sentence of the Court thereon, duly certified by the clerk in whose custody the minutes are, under his official seal, and a copy of the in- dictment on which such conviction was had, certified in the same manner ;° or, by producing the minutes of the clerk of the Court, if they have been inspected by the Court, and made to conform to the facts. If a record of judgment was made, that must be produced.* Husbands and wives are also excluded from being witness- es either for or against each other, in any cause, civil or crim- inal.' In the language of Chancellor Kent : " A husband and wife cannot be witnesses for or against each other in a civil suit ; nor can either of them be permitted to give any testi- mony, either in a civil or criminal case, which goes to crimi- nate the other. And this rule is so inviolable, that no con- sent will authorize the breach of it." ° There appears to be only one exception to this rule ; which is, that where the hus- band is charged, in a criminal action, with committing an in- jury on the person of his wife, or threatening one, she may be a witness against him.' And the rule undoubtedly remains the same, notwithstanding the provision of the Code author- izing the examination of a party to an action.' It was the intention of that provision merely to remove the disqualifica- tion arising from being a party to the record. If there exists any other disqualification, it is not removed. An opposite con- struction would allow a party to secure the testimony of con- victed felons, idiots, lunatics, and children too young to un- derstand the obligation of an oath, by making them parties to 1 2 E. 8. TH §§ T, 8 ; Laws of 184T, chap. 460, eon's Ch. E. 229 -^ Johnson, T2 ; 2 Hill, 181 ; S§ 161, 166. 8 Id. 613. J^iSZtJ' /^S. a 14 Johnson, 182. ' 2 Kent's Comm. 178. 8 2 K. S. 789, § 10. '9 Barbonr, 580. < 14 Johnson, 182 ; 25 Wendell, 466. • Code, § 890 ; Laws of 1847, chap. 462. • 1 Gioenleaf on Evidence, § 884 ; 7 John- COMPETENCY OF WITNESSES. 36Y an action.' In tlie application of the rule, it makes no differ- ence at wliat time the relation of husband and wife commenced, nor is it material that it should still exist. Thus, where the defendant married one of the plaintiff's witnesses, after she was actually summoned to testify in the suit, she was held in- competent to give evidence against him." So, also, a divorced wife is not a competent witness against her former husband, with reference to transactions which occurred during the co- verture. ° Persons insensible to the obligations of an oath have al- ways been held to be incompetent to testify as witnesses. The provisions of the statute, relative to the religious belief of witnesses, are as follows : Every person believing in the existence of a Supreme Being who will punish false swear- ing, shall be admitted to be sworn, if otherwise competent.* 'No person shall be required to declare his belief in the ex- istence of a Supreme Being, or that he will punish false swearing, or his belief or disbelief of any other matter, as a requisite to his admission to be sworn or to testify in any case. But the belief or unbelief of every person offered as a wit- ness, may be proved by other and competent testimony.' But the last section shall not be construed to prevent any Court before whom an infant, or a person of apparently weak intel- lect, shall be produced as a witness, from examining such per- son, to ascertain his capacity, and the extent of his religious and other knowledge ; nor shall it be construed to prevent a Court from inquiring of any person, what are the peculiar cer- emonies observed by him in swearing, which he deems most obligatory." Under these provisions, it was decided, that a person who does not believe in the existence of a God, nor in a future state of rewards and punishments, cannot be a wit- ness in a Court of Justice, under any circumstances ;' that a belief in the existence of a God is an essential prerequisite to the competency of a witness ; but that a belief in the eterni- ty of punishment is not essential,' nor a belief in future pun- > 5 Barbour, 156 ; 2 SaBdford, 840 ; 4 id. 596 ; ' id. § 88. 1 Code Reporter, {new series,) 81. • id. § 89. ' 8 Carrtngton & Payne, 558. ' 18 Johnson, 98. ' 1 Barbour, 392. e 2 Cowcn, 431. < 2 E. S. 408, § 8T. 368 NBW-TOEK JUSTICE. ishment, if the witness believes that perjury will be punished in this world.' The Constitution of 1846, however, contains the following provision : " The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State to all man- kind ; and no person shall le rendered incompetent to he a wit- ness, on account of his opinion on matters of religious lehf; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify prac- tices inconsistent with the peace or safety of this State." ^ How far this Constitutional provision modifies or aifects the statu- tory enactments and judical decisions just referred to, has not been settled, nor, as is believed, has the question been as yet raised in any Court. (2.) Persons rendered competent Tjy special statute. Certain classes of persons are rendered competent as wit- nesses by special statute, as follows : 1. Corporators.\ Aji.j member of a corporation aggregate, not named on the record as a party to a suit brought by or against such corporation, is a competent witness to testify to any matter against the interest of such corporation.' And, if he has no personal interest, it seems that he is a competent witness for the corporation." 2. Indians.] The giving or selling any spirituous liquor or intoxicating drink to any Indian residing within this State, is, by statute,' declared a misdemeanor ; and the receiving of any goods or chattels from any Indian, in payment or ex- change for any spirituous liquor or intoxicating drink, is pim- ishable by a forfeiture of ten times the value of the articles received ;° and such goods or chattels may be reclaimed by the Indian selling or pledging them, from the vendee or pledgee, or any assignee of his, by action in any compe- tent Court.' By the same statute, any Indian is rendered 1 2 Cowen, 483, note. ' Laws of 1849, chap. 420, § 1. 2 Constitution of 1846, Art i, sec. 8, " id. § 2. ' 2 E. S. 40T, § 31. ' id. « 1 Paige, 601. COMPETENCY OF WITNESSES. 369 a competent witness to prove the receipt of the goods and chattels, and the sale or gift of any intoxicating drink to any Indian/ 3. Owners of lost iaggage.] It is provided, by the general rail-road act, that a check must be aiExed to every parcel of baggage received by a rail-road corporation for transporta- tion, and a duplicate thereof be given to the passenger, or the person delivering the same on his behalf; and that if, on pro- ducing the check, his baggage be not delivered, the passen- ger may himself be a witness, in any suit brought by him, to prove the contents and value of the baggag-e.^ 'ydt-e^,0'^ ^ ^.P&?sons tetting cmd gammgl] The statute provides, that no person, other than the parties in the cause, shall be inca- pacitated or excused from testifying, touching an offence against any of the provisions of the statute relating to gaming, by reason of his having played, betted or staked at any game, as therein prohibited ; but that the testimony of any such per- son shall not be used against him in any suit or prosecution authorized by that statute/ 5. Plaintiff, where the defence is usury.] Whenever, in an action at law, the defendant pleads or gives notice of the de- fence of usury, and verifies, by affidavit, the truth of his plea or notice, he may, for the purpose of proving the usury, call and examine the plaintiff as a witness, in the same manner as other witnesses may be called and examined." Under this act, the defendant may examine the real plaintiff in interest, whether he be named as a party or not ;" but the fact of his being the real party in interest, if he is not a party to the rec- ord, must first be proved." The plaintiff is not bound to re- gml a notice to attend the trial, but should be subpoenaed.' 6. Persons interested in actions on demands' hought for sidt.'] The defendant in any action of debt, covenant, or as- sumpsit, may give notice with his plea, in addition to any oth- > Laws of 1849, chap. 420, § 2. , ., , ' 5 Hill, 623 ; 9 Paige, 226. s Laws of 1860, chap. 140, § Sl.0 /Vp : ■ - ■ 8 2 Denio, 165 ; 1 Comstock, 83. > 1 E. S. 663, § 18. M Hill, 119. « LawB of 1887, chap. 430, § 2. 25 370 NEW-TOEK JUSTICE. er matter of defence, that, on the trial of the cause, he will insist and prove that the demand on which such action is founded, has been bought and sold, or received, for prosecu- tion, contraiy to law, without setting forth any other particu- lars.' On the trial of the cause in which such notice is giv- en, if the defendant requires it, the plaintiff and his attorney, and any other person who may be interested in the recovery in such cause, must be examined on oath, touching the mat- ters set forth in such notice." No evidence derived from the examination of any such plaintiff or other person, can be ad- mitted in proof on any criminal prosecution against the par- ty so. examined, for violating any of the provisions of the stat- ute prohibiting the buying of securities, demands, &c., for the purpose of commencing suits thereon.' 7. Parties to actions.] By the common law, a party to the record in a civil suit could not be a witness in a cause.' Nor could a party to the record compel an adverse party to give evidence against himself upon a trial.' There were, in- deed, some exceptions to this rule ; as, in the case of a lost instrument, where a party was permitted to testify as to its loss.' But generally, the mere fact of being a party to the rec- ord, created a disability beyond the power either of the party himself, or of the adverse party, to remove. And this disa- bility was the foundation of the jurisdiction in Chancery of bills of discovery in aid of suits at law, and otherwise. The rules on this subject in this State are now materially changed. The change was first introduced by an act passed in 1847,' the most important provisions of which have since been incorporated in the Code. The Code provides,' that no action to obtain a discovery un- der oath, in aid of the prosecution or defence of another action, shall be allowed, nor shall any examination of a party be had, on behalf of the adverse party, except in the manner prescri- 1 2 E. B. 268, § 237. 1 WendoU, 20 ; 11 id. 6S8 ; 19 id. S58. a id. § 240. " 20 Johnson, 144 ' id. § 242. ' Lows of 1S47, chap. 462. * 1 Greenlcaf on Evidence, § 829. e Code, § 889. » Id. § 830 ; 20 Johnson, 142 ; 7 Cowen, 174 ; COMPETENOT OP "WinSTESSES. 371 bed by the Code. This provision not only takes away the equitable jurisdiction which the Courts formerly had of actions of discovery, but necessarily repeals all the statutory enactments by which the plaintiff in an action to recover money lost by betting and gaming,' to recover excess of bro- kerage," to set aside usurious contracts,' to compel a discovery by judgment creditors,* to discover frauds in confessing judg- ments,* or in executing assignments or conveyances,' could re- quire the def&ndan|''tg answer under nath. ^^Y"^ '6tif)[ Jyne Coue, m the section lollowing me one just cited, au- thorizes the examination of a party to the record, at the in- stance of an adverse party, or of any one of several parties.' This section we shall consider hereafter.<^ ' ''■ ' w ?i '■ ■' ■ ',^.'-;-v -;>'..;/,'„-:,' '^. ■;■;>-; -^ .V!^.-5>.«/, :■, -■'• . ^/./.",, ■' i^'^. InteresiM witnesses.^ There was formerly, alfso, a ruLe of evidence, which excluded the testimony of interested wit- nesses, whether their names appeared as parties upon the rec- ord or not. * The Code has likewise altered this rule, and now, no person offered as a witness can be excluded by rea- son of his interest in the event of the action, upon the side of the party for whom he is called," unless he is also a party to the action, or a person for whose immediate benefit it is pros- ecuted or defended." The mere fact that the name of a wit- ness appears as a party upon the record is not sufficient to ex- clude him, if it appears affirmatively that he has no interest in the event of the suit." A stockholder in a corporation is a competent witness for the corporation notwithstanding his in- terest ; he is not a party to the action, nor a person for whose im- mediate benefit it is prosecuted or defended." And, in an ac- tion against an executor for services rendered the deceased, a residuary legatee under the will is a competent witness for the executor." A husband is a competent witness to prove the ; joining party. "y<^m an 1 J 1 E. S. 664, § 19- » 12 Barbour, 886. » id. T09, § 4 >» Code, §§ 898, 899. ' Id. T72, § 6 ; Laws of 1837, chap. 480, § 8. "6 Barbour, 566. • 2 E. 8. 174, § 39. " Montgomery Co. Bank L 372 NEW-YOEK JUSTICE. a firm consisting at the time of three members, but since dissolv- ed, one of the co-partners,who is not joined as a defendant in the action, is a competent witness for the other co-partners, to defeat a recovery. The suit is not defended for the immediate ben- efit of the witness.' And, since the Code, an agent is a com- petent witness against his principal, though the effect of his evidence is to discharge himself from a written contract which he haSyentered into in, his own name, and to charge his prmcipal.V(t7«/5ji'. ; .t^ii.,,^-^?^, /-'- J, ^(*^ \rr^^ .'=■:. - principal.'/tf^;'^^'r'%^^,^^^^/-'"-^"; ,^-^ '--^^ .^fU ' ryQ.^ Where a person who is directly interested in favor of the plaintiff in a cause, is called and examined as a witness by the defendant, the objection to his competency is thereby waived, and he if made a mtne^ geug^Jjb^ iii the cause.' / 15. EXAMINATION OF PARTIES. It has already been stated that a party may call the adverse party as a witness. The sections of the Code authoi izing this to be done are as follows : A party to an action may be exam- ined as a witness, at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled, in the same manner, and subject to the same rules of examination, as any other witness, to testify, either at the trial, or conditionally, or upon commission.* Hie examina- tion, instead of being had at the trial, as provided in the last section, may be had at any time before the trial, at the op- tion of the party claiming it, before a judge of the Court or a county judge, on a previous notice to the party to be examin- ed, and any other adverse party, of at least five days, unless, for good cause shown, the judge order otherwise. But the party to be examined shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance." Considerfible diversity of opinion has existed as to the ex- tent of the powers conferred by these sections in relation to the examination of the parties to an action before trial. Thus, it has been held, that a party could not compel the examina- > 10 N. T. Legal OliBerver, 248. < Code, § 390. « id. 40. 6''S'^''y^ / • V '. ' '•'• S ^^• • 10 Ba5bonr, 678. EXAMINATION OK PAETIES. 373 tion of an adverse party before the issue in the action was joined;' and again, that such examination could not take place before issue joined, unless by the special order of the Court, on cause shown by affidavit." In other cases, on the contrary, it has been held, that a party to the suit might be examined as a witness before the joining of issue ;' and that the examination might be had without obtaining an order,* and without reference to the residence of the party to be examined, or to the probability of his being able to attend the trial.' These cases are apparently in conflict. Those which have held that the examination could not be had until after issue joined, arose in the Supreme Court, and one of them was a decision at chambers. The other cases arose in the Supe- rior Court of the city of I^ew-York, and the decisions are rep- resented to have been concurred in by all the judges of that Court. Without attempting to reconcile these different views, those of the latter Court would seem to be justified by the language of the Code, which provides that the examination, instead of being had at the trial, may be had at any time be- fore the trial, at the option of the party claiming it.' If the party is out of the State, his testimony may be taken by commission.' It has been held that it is unnecessary to obtain an order for the examination of the adverse party,' that it is sufficient to give him a notice of at least five days, requiring him to appear and be examined, and that the only case in which the order is necessary, is where the party seeking the examina- tion wishes it to be had on a shorter notice than five days." It is thought, however, to be most prudent to obtain the or- der, for the reason that it gives the party obtaining it many independent advantages, particularly with reference to future proceedings, should the party notified neglect or refuse to attend.'" The notice must be served upon the party to be examined ' 1 Code Eeporter, 4; 2 id. 75. • Code, § 891. 2 1 Code Eeporter, (new series,) 108 ; 8 Sand- ' 1 Code Eeporter, 28 ; 2 Sandford, 640. ford, T18. « id. 669. 3 2 Code Eeporter, 101. » id. * id. 82; 2 Sandford, 669. >» "Whittaker's Practice, 869. <• id. 66T; 1 Code Eeporter, 95; 2 id. 66. 574 NEW-TOEK JUSTICE. and upon every other adverse party, and should state the con- sequences of a non-attendance, as hereafter specified.' The party to be examined should be served with a subpoena, in addition to the order and summons/ and be paid or tendered the usual fees of a witness.' The examination may be had in' a county other than the one in which the party resides, if the order or notice is served upon him in such other county.* The party thus to be examined may be compelled to attend, in the same manner as a witness who is to be examined con- ditionally ; and the examination must be taken and filed by the judge in like manner, and may be read by either party on the trial." If a party refuses to attend and testify, either at the trial, or whenever else required, he may be punished as for a con- tempt, and his complaint, answer, or reply, n\ay be stricken out." A joint defence, however, will not be stricken out be- cause one defendant refuses to appear and testify;' The party thus examined becomes a general witness in the cause,' and his examination is conclusive upon the party ta- king it, until it is rebutted by adverse testimony," which may be done." The following is a leading case on the subject : In an action in a Justice's Court, the plaintiff called the de- fendant as a witness, and then called witnesses to contradict him. Judgment was given for the plaintiff. The defendant appealed, on the ground that, as the plaintiff had called him, he became the plaintiff's witness, and it was not competent for the plaintiff to contradict his own witness. The appellate Court affirmed the judgment, remarking that " the Code, which allows the examination of a party, permits his testimo- ny to be rebutted by adverse testimony. This can only mean, that the party calling him may examine other witnesses to rebut the testimony of such party. Adverse testimony means testimony opposed and contrary to the testimony of the par- ty examined. This cannot mean that he may call witnesses 1 1 Code Eeporter,9e; ISnnaford, 718. « Coae, §894.- ' ' ' ''-",', t'^ '" ' 2 Sandford, 669. ' 1 Sandford, 7ia • 1 Code Eoporter, 95; 1 Sandford, Tia » id. 688. • id. '^ New-York Legal Observer, 6T. » Code, § 892. " Code, § 89a EXAMINATION OF PAETIES. 375 to contradict himself; and, if not, then there is no other meaning to be given to it, than that the party calling his ad- versary may contradict him if he thinks proper." ' A person for whose immediate benefit the action is prose- cuted or defended, though not a party to the action, may be examined as a witness, in the same manner, and subject to the same rules of examination, as if he were named as a party." A party examined by an adverse party, as above provided, may be examined on his own behalf, in respect to any matter pertinent to the issue. But, if he testify to any new matter, not responsive to the enquiries put to him by the adverse party, or necessary to explain or qiialify his answers thereto, or discharge when his answers would charge himself, such ad- verse party may offer himself as a witness on his own behalf, in respect to such new matter, and must be so received.' Where a party, examined at the instance of the adverse party, testifies to new matter in answer to a question put to him by the Court, the adverse party is entitled to oifer hi 3 own evi- ' , dence in r^pect to such new matter.*/**^ -yu/ir ,^vu^^ C*iK 1 T Howard's Prac. Eep. 1. 5 - ' i ", ii. r :■ 274 , _ » E. 8. «6, § 71. » 1 Greenleaf on Evidence, § 454 4^ <5. J^^ Sid.; 1 Paige, 601. » 4 "Wendell, 229. / ■> 18 Johnson, 82 ; 6 Cowen, 254; 8 Hill S64; '8 id. 66T ; 1 Denio, 281. / 4 id. 468 ; 2 Denio, 155 ; 1 Comstock, 88 ; 2 id. 378 NEW-TOEK JUSTICE. main fact whicli would subject him to a penalty or forfeiture, ., but may also refuse to disclose any one ofa series of facts whicli together w^^i^M expose him- to such- penalty or forfeiture.' "Whether the answer may tend to criminate the witness, is a point upon which the Court are bound to instruct him." To make the statute which imposes a limitation to the time within which an indictment may be found, a bar to the wit- ness' claim of privilege, it must be shown affirmatively, that no proceedings were commenced against him, or, if com- menced, that they were discontinued, so that the statute will afford him a complete protection.' If this is shown, the witness is bound to answer.* 3. Where the answer, though it will not expose the witness to any criminal prosecution, or to a penalty or forfeiture, has a direct tendency to degrade his character. On this point there has been a diversity of opinion. Where the transac- tion to which the witness is interrogated forms a part of the issue to be tried, it seems he is bound to give the evidence, however strongly it may reflect upon his character.' But where the question is collateral, and its sole object is to im- pair the credibility of the witness, the weight of authority appears to be in favor of allowing the witness his privilege." So, if a witness is asked whether he has not been convicted of a felony, he may refuse to answer.' And such a question is also objectionable for irrelevancy, for the answer to it would not be the best evidence of the fact, nor that which the statute requires.' A witness may be asked a question, the answer to which will criminate him, and, if lie has no objection, may answer it." The privilege of the witness is his own, and neither party can object to his waiving it." If he chooses to answer, he is bound to answer everything relative to the transaction. If he declines answering, no inference of the ti-uth of the fact is permitted to be draivn frgm the refusal." Iff^i^^^tc^.'^. ' 1 Comstock, 83. « id. 918 ; 1 Comstock, 879. » 6 C)owen, 264 ; i WeadoU, 229 j 1 Denlo, ' 18 Johnson, 82 ; 9 Cowon, 62S. SVd./'j "f :'••*■. ftj "Ante, p. 836. > 2 id. 155 ; 1 Comstock, 88. » 6 Cowen, 2r4. * 1 Greenleaf on Evidence, § 482. ■« 3 Hill, 895 ; 6 Id. 144. » Phillips & Amos on Eyidence, 91T. " 1 Greenleaf on Evidence, §451. MODE Of EXAMramO WITNESSES. 379 (2.) Direct examination. When a witness lias been duly sworn, and all questions relative to his competency have been decided, he is first examined by the party producing him ; which is called his direct examination. He is also interrogated as to the same matters by the adverse party ; which is called his cross-exam- ination. These examinations are conducted orally, in open Court, in the presence of the parties and their counsel, and of the Justice and jury, who have thus an opportunity of observ- ing the understanding, demeanor, and inclination of the witnesses. The first general rule to be observed in the examination of a witness is, that the party by whom he is called can- not ask him leading questions, that is, questions suggesting the answer desired.' This rule proceeds upon the supposi- tion, that the witness is favorable to the party calling him. "Where such is not the fact, and the witness appears to be hostile, the rule is relaxed, and a more searching mode of examination is permitted, partaking of the character of a cross-examination." Questions which are intended merely as introductory, and which, whether answered in the afiirma- tive or negative, will not be conclusive upon any of the points in the case, are not liable to the objection of being leading." In some cases, however, leading questions are permitted on a direct examination. Thus, where an omission in the testi- mony of the witness is caused by a want of recollection, which a suggestion may assist, such suggestion is permitted to be made. As, where a witness, called to prove a partner- ship, is not able, at the moment, to specify the several names of the partners, a number of names, containing those of the partners, among others, may be suggested to him, for the as- sistance of his memory.* "Whether a leading question should be put is a matter resting in the discretion of the Justice, and to be decided by him as the circumstances of the case, and the character and disposition of the witness, may dictate.' The most direct mode of assisting the memory of the wit- 1 Phillips & Amos on ETidence, 884; 4 i«t-f w»v^ /fe^*"/^^5^'"'' f Another general rule to be obsei'ved in the lamination of '^V'itness is, that the party calling him is not permitted to im- peach his general reputation for truth, or to impugn his cred- ibility, by general evidei>ce tOFoiffg* ro#show that he is un- worthy of belief.' But a party may prove, by other evidence, the truth as to a material fact relevant to the issue in the cause, though it may collaterally have the effect of discredit- ing his own witness.' And this privilege is allowed, whether a witness is forced upon the party by the law, as in the case of a subscribing witness to a deed, or is voluntarily selected to give evidence. ' 19 Wendell, 47T ; 1 Barbonr, 526. ' Phillips & Amos on Evidence, 902 ; 1 Green- 2 8 Wendell, 426 ; IT id, 186 ; 4 Barbour, 236, leaf on Evidence, § 442 ; 6 Wendell, 805 ; 6 De- 261 ; 4 Denio, 311 ; 2 Comatock, 514 nio, 112. S4Denio, 8T0. '2 Campbell, 556; 5 Wendell, 301; 12 id. * id; 5 id. 84. 1C5 ; 21 id. 90 ; 6 Denlo, 112 ; 4 Barbour, 824. »T Wendell, 72; 4 Barbour, 614. /,- 'i 382 KEW-TOEK JUSTICE. Whether it is competent for a party to prove that a witness whom he has called, and whose testimony is unfavorable to his cause, had previously stated the facts in a different man- ner, is a question upon which there exists some diversity of opinion. The conclusion arrived at in the elementary treatises, is in favor of permitting the party to show that the evidence has taken him by surprise, and is contrary to what the witness hid stated before the trial.' But in this State it is settled, that a party cannot discredit his own witness, by showing that he had previously made statements contr^ictory to, or incpnsist- (3.) Oross-exa/minMion. When a witness has been examined in chief, the opposite party is allowed to cross-examine him, and as a cross-exami- nation affords one of the best securities against incomplete, garbled or false evidence, great latitude is allowed in put- ting the questions. It is not easy for a witness, who is sub- jected to the test of a rigid cross-examination, to impose upon the Justice or the jury ; for, however artful the fabrication of a falsehood may be, it can rarely embrace all the circumstan- ces to which such a cross-examination may be extended.' In- deed, so highly is this" povrer of cross-examination valued, that if, through the misconduct of the witness, or the fault on negligence of the party calling him, the right to exercise it'll* taken away, the dimi examination will not be allowed tq^ '^ If a witness is called by a party merely for tne purpose of producing a written instrument, which is to be proved by another witness, he need not be sworn, and, if not sworn, will not be subject to cross-examination.' If the witness is sworn, and gives some evidence, however formal the proof may be^ he is made a witness for all purposes, and may therefore be cross-examined.' Where the adverse party chooses to exercise the right of cross- ■ 1 Greenlcaf on Evidence, § 444 ; Phillips & « 85 Wendell, 651 ; 7 Hill, 468. S,/^ &^^ Amos on Evidence, 90S. '1 Adolphus & Ellis, 48. ' 7'**y ■*" > inenlo, 112; 7 Hill, 824; 4 Barbour, 824 » 7 Cowen, 23a • PhillipB & Amos on Evidence, 908. MODE OF EXAMINING ■WITNESSES. 883 examining a witness, he cannot introduce through him any proof which would not have been legal, had he originally produced him ;' nor can he ask him questions which assume facts to he proved that are not proved ; '' nor can he cross-examine him as to a distinct collateral matter, for the purpose of afterwards impeaching his testimony by contradicting him ; " and, if the witness is questioned as to any such collateral matter, and answers, his answer is conclusive, and cannot be contradicted.* It is, however, proper to ask a witness whether he has not on some former occasion given a different account of the mat- ter of fact to which he has already testified, in order to lay a foundation for afterwards impeaching him.' Indeed, if it is intended to impeach him by proof of prior statements incon- sistent with his present testimony, it is necessary to interro- gate him as to those statements, and to call his attention to the time, place, and person, when, where, and to whom they are alleged to have been made." And the fact that the witness was examined under a commission, does not vary the rule, though the statements are alleged to have been made after such examination.' Nor is it irrelevant to enquire of a wit- ness whether he does not entertain, or has not expressed, feel- ings of hostility towards the person against whom he is called. ° If he denies having expressed such feelings, and his attention has been properly called to the time, place, and person, he may be contradicted." Leading questions are admitted on the cross-examination of a witness, and he may be led immediately to the point on which his answers are required. If he betrays a zeal against the party cross-examining him, or shows an unwillingness to speak fairly and impartially, he may be questioned with mi- nuteness as to particular facts, or even particular expressions. There can be no danger in leading too much, where the wit- ness is obstinately determined not to follow. On the other hand, instances frequently occur, where the witness is adverse to the party calling him, and leans strongly to the other side. 1 2 Caincs, 178. 2 4 Wendell, 229. = 5 Wendell, 801; 7 id. 6T. « id.; 4Denio, B02; 6 Bartonr, 885 ' 1 Greenleaf on Evidence, § 66T. » IT Wendell, 419; 2 Barbour, 210. ' 19 Wendell, 487 ; 2S id, 259. 8 5 Denio, 106. ' 1 Connecticut Eep. 66. 384 NEW-TOKK JUSTIOE, waiting for a hint to shape a favorable answer. In such a case, counsel should not be allowed to put into the naouth of the witness the very words of the desired answer.' In cross-examining as to the contents of a letter, a witness cannot be asked whether he wrote a letter with such and such contents. He must first have the letter shown to him, and say whether he wrote it. If he admits that he did, then the letter, being the best evidence, must speak for itself. And, if a witness is asked whether he has made representations of a particular nature, counsel may be required to state whether written or verbal representations are referred to ; and if the former, the inquiry should not be allowed, because the wri- ting is the best evidence.'' If the memory of a witness has been refreshed by a writing put into his hands, the adverse party may cross-examine the witness as to the paper, without making it his own evidence in the cause.' Eut if the writing was an entry in a book, the adverse party cannot cross-examine as to other entries in the book, without making them his own evidence." (4.) Invpeachment of witnesses. After a witness has been examined in chief, his credit may be impeached in several ways : First. The party against whom the witness is called, may disprove the facts stated by him, or may examine other wit- nesses as to his general character. In impeaching the credit of a witness, the examination must be coafined to his general character, and cannot be extended to particular facts.' The reason is, that if evidence of particular facts were permitted, it would be impossible for the witness, having no notice of what would be sworn against him, to come prepared to give an answer to it ; and thus his character might be vilified with- out his having any opportunity of vindicating it." The general character of every witness may be drawn in question by the party against whom he is called ; and this. > Phillips & Aino3 on Evidence, 918. * Phillips & Amos on Evidence, 923 ; 1 Green- 2 1 Greonleaf on Evidence, § 465. leaf on Evidence, § 461 ; Bailer's N". P. 296. » id. § 466. ' Phillips & Amos on Evidence, 924 Md. MODE OF EXAMINING WITNESSES. 385 even thougli the party calling him has interrogated him only as to the character of another witness.' The impeaching wit- ' nesses are not allowed to be selected from among those who are comparatively strangers to the former witness, nor from among those who have been sent to the locality of the witness' residence, to inquire what his reputation is. Such persons cannot show the general character of the witness, as that phrase is understood in the law. General character means, or rather is, the estimation in which a person is held in the community where he has resided ; and therefore, as a general rule, the members of that community are the only proper I, to inquire of the wit- nesses, whether they have the means of knowing the general character of the former witness, and whether, from such knowledge, they would believe him on oath.' Even if the witnesses do not know the reputation of the former witness for veracity, they may, if they know his general character, be asked whether, from that general character, they would be- lieve him on oath.* Proof that a witness' character, which has been slightly impeached, was bad four years ago, is ad- missible ; for there is a strong probability, that the reputa- tion of the witness, if bad four years since, continues bad, and persons who have not known him or his reputation within that time, are competent to prove his reputation at that time.' In answer to all such evidence against the character of a witness, the opposite party may go into a cross-examination, to ascertain the grounds of the unfavorable opinions ; and, in doing that, he may interrogate the witnesses as to their oppor- tunities of knowing the character of the impeached witness, how long and how generally the unfavorable reports have prevailed, and from what particular ii^^viduals they heard them.' /i^^^V'-^^'^ A^t^^^'-(-><-^ A^'^f^t} /^///j;-. Second. The credit of a witness may be impeached, by proof that he has made statements out of Court, contrary to what he has testified on the trial.' But it is only in regard to such > 6 Denio, 10«. » 19 Wendell, 1 92 ; 4 Denlo, 481. » 2 Wendell, 882. • 4 Wendell, 2S8. • 4 id. 229. ' Phillips ib Amoa on Eyidenoe, 935, « 8 HIU, ITS. 26 386 NEW-TOEK JITSTICE. matters as are relevant, that the witness can be contradicted ; and, as we have seen,' before this can be done, it is necessary, in the case of verbal statements, to call the attention of the witness to the time, place, and person, when, where, and to whom the contradictory statement is alleged to have been made." It is not enough to ask the witness whether he has ever said so and so, and whether he has always told the same story, but his attention must be called to the particular con- versation in which the contradictory statement was made.' The declarations of a witness, after he has left the stand, are admissible to impeach him,* '" • ' ' ' ' / ' (5.) He-dvreot examination. After a witness has been cross-examined respecting a for- mer statement made by him, the party who called him has a right to re-examine him as to the same matter.' The object of this examination is, to give the witness an opportunity of showing the consistency of his statements, and of vindicating his character. The counsel calling the witness has a right, upon such re-examination, to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they are in themselves doubtful, and also an explanation of the motives by which the witness was induced to use those expressions ; but he has no right to go farther, and to intro- duce matter new in itself, and not suited to the purpose of ex- plaining either the expressions or the motives of the witness. The re-examination is to be confined to showing the true color and bearing of the matter elicited by the cross-examination. !N'ew facts or new statements, not tending to explain the wit- ness' previous answers, ought not to be allowed." If the counsel choose to cross-examine a witness to facts which are not admissible in evidence, the other party has a right to re- examine him as to the evidence so given.' > Ante, p. 888. • Phillips & Amos on ETldenoe, 940 ; 1 Green- > 19 Wendell, 48T ; 2S id. 269 ; 2 Barbour, 210. leaf on Evidence, $ 46T. > 1 Gieenleaf on Evidence, § 462. • id. -« 19 Wendell, 419. ' id. S «8. PTTBLIC DOCUMENTS. 387 (6.) Sustaining impeaclied witnesses. For the purpose of corroborating a witness whose veracity has been impeached, it has been deemed reasonable to admifr general evidence, that he is a man of strict integrity, and of a scrupulous regard for truth. The general rule is, that a party can give evidence of the good character of his witness, only where impeaching wit- nesses have been called on the other side — that is, such as have spoken against his general character, and not such as have merely given a different account of the facts, or proved that he has mad^d^clara);ion^ out, of .Co^:^•t inconsistent with his testimony.' ^ut evidence that the witness has made - witji his testimony, is in- ^ ^x^^ ^ , .^^..v.^ ...i«„ .Ae reports against a witness, whose general character has been impeached, originated from a particular party or body of men, and were founded on a par- ticular transaction, which had been intentionally perverted to injure his character, is also inadmissible.' If a witness called to sustain another, testifies that he never heard his character for truth and veracity spoken of, but that he knows him, and the persons with whom he has associated, he may be asked whether he would believe him upon oath.' If a witness is impeached and sustained by an equal number of witnesses, it is proper for the Justice to state to the jury, that the credibility of the witness is a matter for them to de- cide ;' but it can very rarely be proper for him to staj;e t,o them that they are not at liberty to believe a witness." // 17. PUBLIC DOCUMENTS. "Writings are divisible into two classes, namely, public and private. The former consist of the acts of public functiona- ries, in the executive, legislative, and judicial departments of government. Public writings are either judicial, or not judi- cial ; and with respect to the means and mode of proving them, they may be classed into those which are of record, and those which are not of record. 1 28 Wendell, 60 ; 8 HUl, 809 ; 6 Denio, 106. * 21 id. 808. 3 23 Wendell, 50. / 7 /3-a^^ /^ !S a » 14 id. 105 ; 18 id. 148. ^iiiMI»>'tf.ViruJj S^i^, I •6Hil],444. 388 NBW-TOKK JUSTICE. "Where ■sprits, or other papers in a cause in a Court of Eec-' ord, are oflacially in the custody of an officer of the Court, he may be compelled by a rule of Court to allow an inspection of them ; but, in regard to the records of inferior tribunals, the right of inspection is more limited. As all persons have not necessarily an interest in them, it is not necessary that they should be open to the inspection of all, without distinction. The party, therefore, who wishes to inspect the proceedings of a Justice's Court, should applj'' to the Justice, showing that he has some interest in the document, and that he requires it for a proper purpose. There are records which partake both of a public and pri- vate character, and are treated as the one or the other, accord- ing to the relation in which the applicant stands to them. The books of a corporation are public with respect to its mem- bers, but private with respect to strangers. We now proceed to consider the mode of proving public documents, beginning with those which are not judicial. (1.) Public documents not judicial. The Code provides, that printed copies in volumes, of stat- utes, code, or other written law, enacted by any other State, or Territory, or foreign government, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the Courts and judicial tribunals of such State, Territory, or gov- ernment, shall be admitted by the Courts and officers of this State, on all occasions, as presumptive evidence of such laws. The unwritten, or common law of any other State, or Territory, or foreign government, may be proved as facts by parol evi- dence ; and the books of reports of cases adjudged in their Courts, may also be admitted as presumptive evidence of such law.' All laws passed by the Legislature of this State may be read in evidence from the volumes printed imder the direction of the Secretary of State." Any person residing in this State may publish the whole or any part of the Revised Statutes ; but, to entitle any copy of a law, so published, to be read in 1 Code, § 426. ' I^ws of 1843, chap. 98, $ 82 ; » Ciftren,- 1T4. PUBLIC DOCTJMENTS. 389 evidence, there must be contained in the book or pamphlet a printed certificate of the Secretary of State, or of two of the revisers, that the copy is a correct transcript of the text of the Eevised Statutes as published, except such typographical er- rors in the original as may be corrected in such copy, and ex- cept such parts as have been altered by acts of the Legisla- ture ; and that, with respect to such parts, it conforms to the acts by which such alterations have been made.' The Courts of this State take judicial notice of the civil di- visions of this State created by statute," and of the Constitu- tion of the United States, and the acts of Congress in pursu- ance thereof.' But they do not take official notice of the laws of other States.* Thejoui'nalsof theLegislature may be proved hjithe copies printed by the authority, of either house/ ^-^, v (2.) Records and judicial writings. Records are proved, either by the mere production of them, or by a copy. Copies of records are either exemplifications, or copies made by an authorized officer, or sworn copies. Ex- emplifications are either under the great seal, or under the seal of the particular Court where the record remains." In proving a record by a copy under seal, the great seal of a State, and the seals of the Supreme Courts of Justice, and of all Courts established by public statutes, are recognized without proof. So, too, no extraneous proof is required of the seal of any Department of State, or public office established by law, and required or known to have a seal.' The Constitution of the United States provides,* that full faith and credit shall be given, in each State, to the public acts, records, and judicial proceedings of every other State, and that Congress may, by general laws, prescribe the man- ner in which such acts, records, and proceedings shall be proved, and the efi'ect thereof. It has accordingly been e nacted," that the acts of the Legislatures of the several States shall be authenticated by having the seals of their respective ' LawB of 1880, chap. 269. « 1 Greenleaf on Evidence, 5 601. ' 4 Cowen, 845 ; 7 id. 429 ; 6 Hill, 475. ' id. § 608. ' 10 "Wendell, 75 ; 12 id. 811 ; 14 id. 507. « Constitution U. S. Art, iv, sec 1. * 1 Paige, 220. • 1 tr. S. Statutes at Large, 122. « 7 Cowen, 613. 390 NEW-TOEK JUSTICE. States affixed thereto ; that the records and judicial proceed- ings of the Courts of any State, shall be proved or admitted in any other Court within the United States, by the attesta- tion of the clerk, and the seal of the Court annexed, if there be a seal, together with a certificate of the Judge, Chief Jus- tice, or presiding magistrate, as the case may be, that said attestation is in due form ; and that the said records and judi- cial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every Court within the Uni- ted States, as they have by law or usage in the Courts of the State from whence the said records are or shall be taken. These provisions are, by a subsequent act, extended to the Courts of all Territories subject to the jurisdiction of the Uni- ted States.' The mode of authentication thus provided by Congress is not exclusive of any other which the States may adopt. The judicial proceedings referred to in the act of Congress are understood to be the proceedings of Courts of general jurisdic- tion, and not those of merely municipal authority. Accord- ingly it has been held, that the judgments of Justices of the Peace are not within the act or the constitutional provision.' The proof of records by a sworn copy, is by producing a witness who has compared the copy with the original, or with what the officer of the Court, or any other person, read as the contents of the record.' /^ dA^ "^3^ There are various statutory provisions in regard to the mode of proving records and judicial writings, which may properly be given here : In cases where by law the affidavit of any person residing in another State of the United States, or in any foreign coun- try, is required, or may be received, in judicial proceedings in this State, to entitle the same to be read, it must be authenti- cated as follows : 1. It must be certified by some Judge of a Court having a seal, to have been subscribed and taken before him, specifying the time and place where taken ; 2. The genuineness of the signature of such Judge, the existence of the Court, and the fact that such Judge is a member > 2 0. S. Statutes at Largo, 298. • Id. § 608. > 1 Greenleaf on Evidence, % 505. PUBLIC DOCUMENTS. 391 tliereof, must be certified by tbe clerk of tbe Court under the seal thereof.' A substantial compliance with the provisions of this statute is all that is requisite." The records and judicial proceedings of any Court in a foreign country may be admitted in evidence in the Courts of this State, upon being authenticated as follows : 1. By the attestation of the clerk of such Court, with the seal of such Court annexed, or of the ofiicer in whose custody such records are legally kept, with the seal of his office annexed ; 2. By a certificate of the Chief Justice, or presiding magis- trate, of such Court, that the person attesting such record is the clerk of the Court, or that he is the oflacer in whose cus- tody such record is required by law to be kept ; and, in either case, that the signature of such person is genuine ; and, 3. By the certificate of the Secretary of State, or other officer of the government under whose authority such Court is held, having the custody of the great or principal seal of such gov- ernment, purporting that such Court is duly constituted, specifying generally the nature of its jurisdiction, and veri- fying the signature of the clerk or other officer having the custody of such record, and also verifying the signature of the Chief Justice or presiding magistrate.' Copies of such records and proceedings in the Courts of a foreign country, may also be admitted in evidence, upon due proof, 1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of such original ; 2. That such original was in the custody of the clerk of the Court, or other officer legally having charge of the same ; and, 3. That such copy is duly attested by a seal, which shall be proved to be the seal of the Court in which such record or proceeding shall be.* The preceding sections do not prevent the proof of any record or judicial proceeding of the Courts of any foreign country, according to the rules of the common law, in any other manner than that herein directed, nor are they to be con- strued as declaring the effect of any record or judicial pro- ceeding authenticated as therein prescribed.' 1 2 E. 8. 896, § 25. . ,* 10,391, § 27. . /. s #»• 2 12 Wendell, 225 ; 3 Hill, 461. » id- § 28. "2E. S. 896, §26. 392 NEW-TOEK JITBTIOE. A transcript of the docket of any Justice of the Peace of any town, city or county in any adjoining State, of any judg- ment had before him ; of the proceedings in the cause before such judgment ; of his jurisdiction in said cause ; of the ex- ecution issued thereon, if any ; and of the return of said exe- cution, if any ; when subscribed by such Justice, and verified in the manner prescribed in the next succeeding section, is deemed presumptive evidence to prove the facts stated in such transcript.' To entitle such transcript to be read in evi- dence, there must be attached thereto a certifiicate of the said Justice, that the said transcript is in all respects correct, and that he, the said Justice, had jurisdiction of the said cause ; and also, a further certificate of the clerk or prothonotary of the county in which such Justice resided at the time of rendering said judgment, under the seal of the Court of Com- mon Pleas of said county, specifying that the person subscrib- ing such transcript was, at the date of such judgment, a Justice of the Peace of said county, and that the signature thereto is in his own proper hand-writing.' Such judgments and proceedings, and the authority to render such judgment, may also be proved by the Justice who rendered such judg- ment, by producing his docket or a copy of the said judgment in Court, and appearing, and being sworn and examiued as a witness to the truth and correctness thereof, and of his au- thority to render such judgment.' Nothing in this statute contained is to be construed to prevent the introduction of evidence to controvert any and all parts of the proof in rela- tion to the vaKdity of said judgment so rendered in an ad- joining State.' A copy of any record and proceeding of the District and Circuit Courts of the United States, may be received in evidence in all Courts of this State, when certified by the clerk or officer in whose custody the same is required by law to be, to have been compared by him with the original, and to be a correct transcript therefrom, and of the whole of such original, and attested by the ofiicial seal of such officer.' ' Laws of Ij »id. i% ' id. § 8. of 1888, chap. 489, S 1. ^ / „. Md. {4 ,.j4iiA «*• V*q^ *^*>' ' ^"™ ■>' 1845, chap. 803. DOaOMENTAET EVIDENOE. 393 A copy of any act, proceeding, record, document, roll, warrant, order, or other paper or writing, now or hereafter remaining in any of the Departments of the government of the United States, may, when certified by the head or acting chief officer at the time being of such Department, to have been compared by him with the original, and to be a correct transcript therefrom, and of the whole of such original, and attested by the seal of his Department, be given in evidence in all Courts of this State, with the like effect as the original.' But this does not prevent the proof of such record, act, pro- ceeding, document, roll, warrant, order, or other paper or writing, according to the niles of the common law, or in any other manner." We shall hereafter give' the statutory provisions in regard to the mode of proving judgments and other proceedings had before Justices of the Peace. (3.) Documentary Evidence generally. The following are statutory provisions in regard to docu- mentary evidence : Aliens, Depositions of.l Certified copies of the depositions filed in the office of the Secretary of State by aliens, in order to enable them to hold real estate, are evidence of the facts therein contained.* Attorney, Letters of.'] Every letter of attorney or other instrument, containing a power to convey lands as agent or attorney for the owner of such lands, and every executory contract for the sale or purchase of lands, when proved or acknowledged in the manner prescribed in the statute, may be recorded in the clerk's office of any county, in which any real estate, to which such power or contract relates, may be situated ; and, when so proved or acknowledged, and the record thereof when recorded, or the transcript of such record, may be read in evidence, in the same manner and with the like effect as a conveyance recorded in such county.' I Laws of 1846, chap. 240, § 1. * Laws of 1884, chap. 3T2. = i4§2. »1E. 8. T62, §89. s Post, Part I, Chap. XV. 394: itew-tosk: justice. Certifiaates to dociumentary evidence, Form of?\ Whenever a certified copy of any af&davit, record, document, or other paper is declared by law to be evidence, sucb. copy must be certified by the clerk or officer in wbose custody the same is required by law to be, to have been compared by him with the original, and to be a correct transcript therefrom, and of the whole of such original ; and if such officer have any official seal by law, such certificate must be attested by such seal ; and if such certificate be given by the clerk of any county, in his official character as such clerk, it must be attested by the seal of the Court of Common Pleas of the county of which he is clerk.' Comal mafps.\ A transcript fi-om the original canal maps, or from a copy thereof, certified as correct by the comptroller or county clerk with whom such map or copy may be filed, is to be received as presumptive evidence in all judicial or legal proceedings.' The original maps of the canals of this State, which purport to have been made and completed under and in virtue of the first article of title nine, chapter nine, of the first part of the Eevised Statutes, which said maps are now filed in the office of the comptroller ; and such maps of said canals as hereafter shall be made, completed, approved, signed, certified and filed under and in virtue of the act referred to, are by law declared to be presumptive evidence that the lands indicated on said maps as belonging to this State, have been taken and appropriated by the State as and for the canals ; and a trans- cript from any such maps, certified as required by the act referred to, are of equal efiect with the original.' Oomobl contractor^ ionds.'] Actions on canal contractors' bonds may be commenced before Justices of the Peace, when the amount claimed does not exceed their jurisdiction ; and, in such actions, transcripts of such bonds, duly authenticated by the clerk of the county with whom the originals of such bonds are filed, may be used as evidence in such actions.* 1 « E. S. 408, § B9. • Laws of 188T, chap. 451, § 6. ' 1 Id. 218, § T. * Laws of 1860, chap. 278, § 2. DOCUMENTAEY EVTDENCE. 395 Chattel mortgages, Copies o/l] A copy of any chattel mort- gage, or of a copy thereof filed pursuant to the statute, inclu- ding any statement of the interest of the mortgagee in the property claimed by him by virtue of such mortgage, certified by the clerk or register in whose ofiice the same is filed, is to be received in evidence, but only of the fact that such mort- gage or copy, and statement, was received and filed according to the endorsement of the clerk or register thereon, and of no other fact ; and in all cases the original endorsement by the clerk or register, made in pursuance of the statute, upon such mortgage or copy, is to be received in evidence only of the facts stated in such endorsement.' Common Council of New- York, Proceedings o/".] Every act, ordinance, resolution or proceeding of the common council of the city of New- York may be read in evidence in all Courts of Justice in this State, either, 1. From a copy of such act, ordinance, resolution or proceeding, certified by the clerk of the common council, with the seal of the corporation affixed ; or 2. From the volume of ordinances printed by au- thority of the common council. The charter of the city of New -York may be read in evidence from the volume contain- ing such charter, printed by authority of the common council, or from a copy certified by the clerk of the common council. A copy of the proceedings of either chamber of the common council, certified by the clerk thereof, may be read in evi- dence in all Courts of Justice of this State. A certificate of the Mayor of New- York, or of the clerk of the common coun- cil, of the granting or renewal of any license, may be read in evidence in any Court of Justice in this State, to prove the ex- istence of such license. The proceedings of the board of health may be read in evidence from a copy of such proceed- ings, certified by the secretary of the board of health, or the presiding officer of such board. All proclamations by the mayor of the city of New- York may be proved in all Courts of Justice, by producing a copy of such proclamation, with the certificate of the mayor that the same is a copy, and has been > Laws of 1833, chap. 279, 5 5. 396 NEW-TOEK JUSTICE. puUished according to law. The evidence authorized under the provisions of this act to be considered jprvma facie evi- dence only.' OoTweycmoes, c&g., Oertificates of proof and aolcnowledgment of.'] Every conveyance, acknowledged or proved and certi- fied in the manner prescribed by law," before any of the offi- cers duly authorized by statute, may be read in evidence without further proof thereof, and is entitled to be recorded.' To entitle any conveyance to be recorded or read in evi- dence, it must be acknowledged by the party or parties exe- cuting the same, or be proved by a subscribing witness there- to, before some one of the following officers : 1. If acknowl- edged or proved within this State, the Justices of the Supreme Court, County Judges, mayors and recorders of cities, com- missioners of deeds, and Justices of the Peace in towns ; (but no County Judge or commissioner of deeds for a city, or Justice of the Peace in a town, can take any such proof or acknowledgment out of the city or county for which he was appointed;) 2. K acknowledged or proved out of this State, and within the United States, the Chief Justice and Associate Justices of the Supreme Court of the United States, District Judges of the United States, the Judges or Justices of the Supreme, Superior, or Circuit Court of any State or Territory within the United States, and the Chief Judge or any Associate Judge of the Circuit Coui-t of the United States in the District of Columbia ; (but no such officer can take any such proof or acknowledgment out of the place or territory to which the jurisdiction of the Comt to which he belongs ex- tends.)* If any party or parties executing such conveyance, be, or reside, in any State or kingdom in Europe, or in !N"orth or South America, the same maybe acknowledged or proved be- fore any minister plenipotentiary, or any minister extraordi- nary, or any charge des affaires, of the United States, resident and accredited within such State or kingdom. If such par- ties be, or reside, in France, such conveyance may be acknowl- ■ LawB of 1982, chop. IBS. » 1 K. S. T69, § 16. « Post, Port III, Chop, L « id. 766, § 4. DOOrnWENTAItT EVTDENOE. 397 edged or proved before the consul of the United States ap- pointed to reside at Paris ; and if such parties be, or reside, in Russia, such conveyance may be acknowledged or proved be- fore the consul of the United States appointed to reside at St. Petersburgh/ If the party to such conveyance be, or reside, within the United kingdom of Great Britain and Ireland, or the domin- ions thereunto belonging, the same may be acknowledged or proved before the mayor of the city of London, the mayor or chief magistrate of the city of Dublin, or the provost or chief magistrate of the city of Edinburgh, or before the mayor or chief magistrate of Liverpool, or before the consul of the Uni- ted States appointed to reside at London." Such proof or acknowledgment, duly certified under the hand and seal of office of such consuls, or of the said mayors or chief magistrates respectively, or of such minister or cha/rge des affaires, has the like force and validity as if the same were taken before a Justice of the Supreme Court of this State." The acknowledgment or proof of a deed or mortgage, made or taken before the mayor of either of the cities of Philadel- phia or Baltimore, or before any consul of the United States resident in any foreign port or country, or before a Judge of the highest Court in Upper Canada, or Lower Canada, and certified by them respectively, is as valid and effectual as if taken before one of the Justices of the Supreme Court of this State.' Every acknowledgment of proof of a deed or mortgage made or taken before the mayor of any city in the United States, and certified by him, is as valid and efi'ectual, as if ta- ken before one of the Justices of the Supreme Court of this State.' The acknowledgment of any deed, mortgage or other con- veyance of any real estate within this State, and of any con- tract in relation to such real estate, and of any power of attorney authorizing the conveying, mortgaging or otherwise 1 1 E. S. T6T, § 5. < Lows of 1829, chap. 223. 3 id. § 6. » Laws of 1848, chap. 10». • id. § T. 398 NEW-TOEK JUSTICIIi. disposing of sucli real estate, or of making any contract in re- lation thereto, which has been or shall be executed by an officer or soldier of the army of the United States, employed at the time of making such acknowledgment within the ter- ritory of the republic of Mexico, may be taken within such territory before, and certified by any major-general, briga- dier-general or colonel of the said army, to whom the person making such acknowledgment shall be personally known at the time of making the same. The certificate of any acknowl- edgment taken and certified by virtue of this act, must state the place at which it is taken, and the fact that the person making the same is an officer or soldier of the said army, of which fact such acknowledgment shall be presumptive evi- dence. Every acknowledgment so taken and certified has the same force and effect in all respects as if the same were taken and certified within this State by an officer au- thorized by law to take and certify the same.' The proof or acknowledgment of jaiydeed or other writ- ten instrument required to be proved or acknowledged, in order to entitle the same to be recorded or read in evidence, when made by any person residing out of this State, and with- in any other State or Territory of the United States, may be made before any officer of such State or Territory, authorized by the laws thereof to take the proof and acknowledgment of deeds ; and when so taken and certified as herein provided, is entitled to be recorded in any county in this State, and may be read in evidence in any Court in this State, in the same manner and with like effect, as proofs and acknowledg- ments taken before any of the officers now authorized by taw to take such proofs and acknowledgments. But it is provided, that no such acknowledgment shall be valid, unless the officer taking the same knows or has satisfactory evidence that the person making such acknowledgment is the individual de- scribed in and who executed the said deed or instrument.' To entitle any conveyance or other written instrument ac- knowledged or proved under the preceding section, to be read in evidence or recorded in this State, there must be subjoined ' Laws of IMT, chop. 170. • I<»W8 of 1848, chap. 195, J I. DOCUMENTAET ETIDBNCE. 399 to the certificate of proof or acknowledgment, signed by such officer, a certificate under the name and official seal of the clerk or register of the county in which such officer resides, specifying that such officer was at the time of taking such proof or acknowledgment, duly authorized to take the same, and that such clerk or register is well acquainted with the hand-writing of such officer, and verily believes that the sig- nature to such certificate of proof and acknowledgment is genuine.' Commissioners appointed by the Governor of this State in other States and Territories of the United States, and in the District of Columbia, are authorized to take the acknowledg- ment and proof of the execution of any deed, mortgage, lease or other conveyance of any lands lying in this State, or of any contract, assignment, transfer, letter of attorney, satisfaction of a judgment, or of a mortgage, or of any other writing or instrument under seal, to be used or recorded in this State, also to administer an oath or affirmation to any person or persons who may desire to make such oath or affir- mation." Any acknowledgment or proof taken in the man- ner directed by law with respect to the taking of the same within this State, and certified by any such commissioner by whom the same is taken, under his hand and official seal, such certificate to be endorsed on the instrument, is, when au- thenticated as hereafter provided, entitled to be recorded in any county in this State, and has the same force and efi"ect, and is as good and available in law for all purposes, as if taken before an authorized officer residing in this State ; and any affidavit or affirmation made before any such commis- sioner, certified and authenticated as aforesaid, may be read in evidence, and is as good and effectual to all intents and purposes, as if taken and certified by an authorized officer residing in this State.' Before any such deed, instrument, oath, or affirmation, is entitled to be used, recorded, or read in evidence, there must be subjoined or affixed to the certifi- cate of the commissioner, a certificate under the hand and official seal of the Secretary of State of this State, certifying 1 Laws of 1848, chap. 195, § S. • id. § 2, > Laws of ISfiO, cbap. 370, S 1. 400 NEW-TOEK JtJBTIOE. that sucli commissioner was, at the time of taking such proof or acknowledgment, or of administering such oath or affirma- tion, duly authorized to take the same, and that the Secretary is acquainted with the hand-writing of such commissioner, or has compared the signature to such certificate with the signature of such commissioner deposited in his office, and has also compared the impression of the seal affixed to such certificate, with the impression of the seal of such commis- sioner deposited in his office, and that he yerily helieves the signature and the impression of the seal of the said certificate to be genuine.' No such commissioner can take any proof or acknowledgment, or administer any oath or affirmation, at any place other than within the city or county within which he resides at the time of his appointment, and every certifi- cate of any such commissioner must specify the day on which, and the city or town and county within which, the proof or acknowledgment was taken, or the oath or affirmation ad- ministered, and without such specification the certificate is void." "When any married woman, not residing in this State, joins with her husband in any conveyance of real estate situ- ated within this State, the conveyance has the same effect as if she were sole ; and the acknowledgment or proof of the execution of such conveyance by her may be the same as if she were sole.' The record of a conveyance duly recorded, or a transcript thereof, duly certified, may also be read in evidence, with the like force and eflfect as the original conveyance. Neither the certificate of the acknowledgment, or of the proof, of any conveyance, nor the record, or the transcript of the record, of such conveyance, is conclusive, but may be rebutted, and the force and effect thereof may be contested by any party affected thereby. If the party contesting the proof of a con- veyance, makes it appear that such proof was taken upon the oath of an interested or incompetent witness, neither such conveyance, nor the record thereof, can be received in evi- dence, until established by other competent proof.* > L»ws of I860, ch»p. 270, § 4 » 1 B. S. 768, § U. • id. 86. « Id. 769, §17. DOOUMENTAET EVIDENCE. 401 "Where any conveyance is proved or acknowledged before any Judge of the county courts, not of the degree of coun- sellor at law in the Supreme Court, or before any com- missioner of deeds appointed for any city, or before any Jus- tice of the Peace in a town, it is not entitled to be read in evidence, or to be recorded, in any other county than that in which such Judge, or commissioner, or Justice resides, unless, in addition to the other requisites prescribed by law, there is subjoined to the certificate of proof or acknowl- edgment signed by such Judge, or commissioner, or Justice, a certificate under the hand and ofiicial seal of the clerk of the county in which such Judge, or commissioner, or Justice resides, specifying that such Judge, or commissioner, or Jus- tice was, at the time of taking such proof or acknowledg- ment, duly authorized to take the same, and that the said clerk is well acquainted with the hand- writing of such Judge, or commissioner, or Justice, and verily believes that the signa- ture to the said certificate of proof or acknowledgment is genuine.' The certificate of the proof or acknowledgment of every conveyance, and the certificate of the genuineness of the signature of any Judge, or commissioner, or Justice, in the cases in which such last mentioned certificate is required, must be recorded, together with the conveyance so proved or acknowledged; and unless the said certificates be so recorded, neither the record of such conveyance, nor the transcript thereof, can be read or received in evidence." To entitle the transcript of any record of any conveyance which has been recorded, and of the certificates of the ac- knowledgment or proof thereof, and of the genuineness of any signature to such certificate, to be read in evidence, the same must be certified to be a true copy of such record, by the clerk of the county in whose custody the same is, under the seal of the county court of the county of which he is clerk, or by the register of the city and county of New- York, when such record is in his custody." Every conveyance of real estate situated without this State, and which is acknowledged or proved in the manner pre- 1 1 E. 8. 759, § 18. s id. 761, J26. 2 id. §20. 27 402 UTEW-YOUK JUSTICE. scribed by the laws of this State in relation to convey- ances of lands within this State, may be read in evidence in any Court without further proof thereof, in the same manner and with the same effect as if such conveyance related to real estate within this State ; but this section cannot be con- strued to prevent the reading in evidence of any conveyance of lands within any other of the United States, which has been duly authenticated according to the laws of such State, so as to be read in evidence in the Courts thereof.' A copy of any deed, conveyance, or other instrument in writing, relating to, or in any manner affecting, the title to any real estate, which is or may be recorded or filed in the office of the Secretary of State, upon being certified by the said Secretary in the manner required by law to entitle the same to be read in evidence, may be recorded in the office of the clerk of any county in this State, or in the office of the register of deeds in the city of I^ew-Tork, with the Secretary's certifi- cate ; and such record, and a duly certified copy thereof, may be read in evidence, in the same manner and with the like effect as the record of a conveyance of real estate situate in such county, originally recorded in the said clerk's office, or in the office of said register." The copy of any record, or of any recorded deed or instru- ment, attested and authenticated in such manner as would by law entitle it to be read in evidence, may, on proof of the loss of the original and of the record, be again recorded, and such record will have the same effect as the original record.' Any will duly proved, with the proofs, and certificate of proof, may be recorded in any county clerk's office, or in the register's office of the city and county of !N"ew-York, and so may any exemplification of the record of any such will from any office where the same may be recorded. The record of such will or exemplification, and the exemplifications of such record, may be received in evidence, and will be as effectual in all cases as the original will would be if produced and proved, and may in like manner be repelled by contrary proof.* > 1 E. 8. rei, § ST. * tows of 1846, ohsp, 182, § 1 ; Laws of 1861 a Laws of 1889, chop. 295, ■§ 6. chop. 2TT. ' » Lows of 1843,.oh«i. aiO,,^ 6. DOOtnUENTAUT EVIDENCE. 403 An exemplification of a jndgmentrecord or decree in parti- tion may be recorded in any county clerk's office, or in tfie register's ofiice of the city and county of New- York, accord- ing to the situation of the lands described therein ; and such record, or an exemplification thereof, is entitled to be receiyed in evidence, and is as effectual in all cases as the original ex- emplification would be if produced, and is open to the same objections.' CorporaUons, Certificates of incorporation ofJ] Certified copies of the certificates of incorporation of building-associ- ations," gas-conipanies,° and manufacturing, mining, mechani- cal, or chemical-companies,* from the ofiice of a county clerk, are presumptive legal evidence of the facts therein stated. Certified copies of the certificates of incorporation of bank- ing-associations," and telegraph-companies," from the ofiice of the Secretary of State, or of a county clerk, are presumptive legal evidence of the facts therein stated. A copy from the office of the State engineer and surveyor, or of a county clerk, of the articles of association of any bridge-company, filed in pursuance of the act authorizing the incorporation of such company, with a copy of the affidavit of three of the directors of such company, endorsed thereon, or annexed thereto, expressing that the amount of stock re- quired by said act has been subscribed, and that five per cent, on the amount has been actually paid, certified to be a copy by the proper officer, is, in all Courts and places, presump- tive evidence of the facts therein contained.' A copy of the articles of association of any plank or turn- pike-road company, formed under the general statute author- izing the formation of such companies, which have been filed in pursuance of the terms of that statute, with a copy of the affidavit of three of the directors of such company, certifying that the amount of capital stock required by the said statute has been subscribed, and that five per cent, on the amount has been actually paid in, certified to be a copy by the Secre- 1 Laws of 1846, chap. 182, § 2 ; Laws of 1861, * id. chap. 40, § 9. chap. 27T. ' Laws of 1838, chap. 260, § IT. 3 id. chap. 122, § 21. • Laws of 1848, chap. 265, § 8. = Laws of 1848, chap, 8T, § 9. ' id. chap. 269, § 4 40i NBW-TOEK JUSTICE. tary of this State, or his deputy, is, in all Courts and places, presumptive evidence of the incorporation of such compa- ny, and of the facts therein stated.' A copy of the articles of association of any rail-road com- pany formed under the general rail-road statute, virhich have been filed and recorded in pursuance of the terms of that statute, with a copy of the affidavit of three of the directors of such company, endorsed thereon, or annexed thereto, ex- pressing that the amount of stock required by the act has been subscribed, and ten per cent, paid in cash thereon, and that it is intended, in good faith, to construct, or to maintain and op- erate, the road mentioned in the said articles, certified to be a copy by the Secretary of this State, or his deputy, is pre- sumptive evidence of the incorporation of such company, and of the facts therein stated." Corporations, Seals o/".] In all cases, when a seal of any corporation is authorized or required by law, the same may be affixed by making an impression directly on the paper, which is as valid as if made on a wafer or on wax.' County Clerics, Papers certified hy.] Copies of all papers duly filed in the office of a county clerk, and transcripts from the books of records kept therein, certified by such clerk, with the seal of his office affixed, are evidence in aU Courts in like manner as if the originals were produced.' Depositions in perpetuam rei memoriam.] Depositions taken m perpetuam rei memoriam, or certified copies thereof, may be given in evidence in case of a trial between the per- sons named as parties in the original affidavits upon which the order to take such depositions was granted, or in case of a trial between the persons named in such affidavits as expected par- ties, or between any parties claiming under such persons or either of them, upon due proof of the death or insanity of the ' Laws odW!, chap. 210, § 8. » Law3 on848, chap. 195, § 1. " Lows of 1850, chop. 140, § 8. < 1 K. S. 8TT, § 65. DOOUMEKTAET EVIDENOE. 405 witness examined, or of his inability to attend tlie trial by reason of old age, sickness, or settled infirmity.' Evidence that a woman is in an advanced state of pregnan- cy, so that it would not be safe for her to attend the trial, is sufficient evidence of sickness to justify the reading of her de- position taken conditionally." The depositions so taken and read in evidence, have the same effect, and no other, as the oral testimony of the witness would have, if given on such trial; and every objec- tion to the competency or credibility of such witness, or to the relevancy of any question put to him, or of any answer given by him, may be made in the same manner as if such witness were personally examined on such trial.^ Firemen, Certificates as to service of.] The certificate of the president of the board of trustees in any incorporated village, specifying the fire-company or companies in which any fire- man has served for ten years, is presumptive evidence of such service.* Legislative pofpers.] All petitions and papers presented to the senate or assembly, must be kept on file in each of the houses where they 3vere originally presented ; and copies of said petitions or papers, certified by the clerk of the house in which they were presented and filed, are prima faaie evidence thereof, wherever the same may be required within this State." Land-Companies, Papers and field-notes of.'\ Copies of pa- pers received from the Holland Land-Company, and which have been recorded and put on file in the clerk's ofiices of the counties of Genesee, Orleans, Niagara, Erie, Chautauque, and Allegany, or any exemplification thereof, are, in the absence of the originals, as high evidence, in any Court or proceeding, as the originals would be." The original and copies of the field-notes of the Holland Land-Company and of the Ogden Company, when proved he- 1 2 E. S. 899, § 89 ; 8 Wendell, 180. * Laws of 184T, chap. 151, § 3. 2 16 id. 601. » Laws of 1837, chap. 140. » 2 E. S. 399, § 40. • Laws of 1836, chap. 829. 406 NEW-TOEK JUSTICE. fore or certified by a Justice of the Supreme Court, are enti- tled to be received in evidence in all Courts of Justice in tbia State, as presumptive evidence of tbe facts therein, contained and stated.' LoanrCoin/inissioners, Certificates of ^^ Statements made by tbe commissioners of loans and loan-ofiicers, (under tbe loans of 1786, 1792, and 1808,) of tbe county of Ontario, of all mort- gages taken by tbem, recorded or registered with tbem, and wbicb are a lien on lands situated in tbe counties of Yates, Monroe, Orleans, Livingston, and "Wayne, containing tbe dates of sucb mortgages, tbe names of tbe mortgagors, a description of tbe premises mortgaged, and tbe amount of monies secured to be paid by sucb mortgages, certified and signed by sucb commissioners of loans or loan-ofiicers, and filed in tbe offices of tbe clerks of said counties, are deemed matters of record, and tbe same, or certified copies tbereof, are, in all Courts and places, evidence of tbe facts tberein contained, in tbe same manner as tbe registry of any mortgage duly registered and recorded is evidence, and sucb transcripts, so filed, of tbe said mortgages, have tbe like force and effect as a registry or rec- ord of tbe said mortgages under tbe law for tbe registering and recording of mortgages." Tbe mortgages taken by tbe loan-commissioners of tbe Uni- ted States deposit fund, must be executed in tbe presence of two or more witnesses, and be subscribed by tbem as sucb witnesses, and tbe substance tbereof must be minuted in abook to be kept by tbe said commissioners ; wbicb mortgages and minutes are matters of record ; and an attested copy of any mortgage, if in being, or of any minute, in case tbe mortgage is lost, under tbe bands and seals of tbe commissioners, is good evidence of tbe mortgage in any Court witbin this State.' Whenever any mortgaged premises are bid in by tbe loan- commissioners of tbe United States deposit fund, for an amount less than the principal, interest, and costs due, the comptrol- ler is required to credit such commissioners with tbe full amount due on the mortgage at the time of the sale, on their > Laws of 1 860, chap. 221. s Lows of 18ST, chap. 160, § 27. »Lawfl0fl829, obap. 91, §5. DOCUMENTAET EVIDENCE. 407 delivering to him the original mortgage, and all other secu- rities for the mortgage debt ; ' and it is the duty of the comp- troller, upon the application of any person interested therein, to furnish a certified copy, under his seal of office, of any original mortgage so delivered to him ; and such certified copy must, if required by the holders thereof, be recorded, together •with the certificate of the comptroller, in the office of the register or clerk of the county in which the lands described in the said mortgage are situated ; and every such certified copj'', and such record thereof, or a transcript of such record, may be read in evidence in any Court of this State, without any fur- ther proof thereof, with the like force and effiict as the said original m^ortgage." The loan-commissioners of the United States deposit fund, when required by any person interested in any lands sold un- ' der the foreclosure of any mortgage made to them, are author- ized and directed to furnish a brief certificate of all or any of the proceedings of the commissioners under the said act, and of the proofs of such proceedings, as the same appear from the minute books, entries and records kept by the said commis- sioners, in relation to any such foreclosure and sale, so far as the same may affect such lands; and every such certificate under the hands and seals of the said commissioners, or under the hand and seal of any one of them, duly acknowledged or proved in the manner required by law to entitle a deed of real estate to be recorded, may be recorded in the office of the register or clerk of the county in which the said lands are sit- uated ; and every such certificate so acknowledged or proved, and the record thereof, or a transcript of such record, is prima facie evidence of the facts therein stated, and may be read in evidence in any Court in this State.' Lost papers, Certificate as to.] Whenever any officer to whom the legal custody of any document or paper belongs, certifies, under his official seal, that he has made dili- gent examination in his office for such paper, and that it cannot be found, such certificate is presumptive evidence 1 Laws of 1837, chap. 150, § § 54. = id. § 3. ' Laws of 1844, chap. 826, § 2. 408 NEW-TOEK JUSTICE. of the facts so certified, in all causes, matters, and pro- ceedings, in the same manner, and with the like effect, as if such officer had personally testified to the same, in the Court, or before the officer, before whom such cause, matter, or pro- ceeding may be pending.' Marriage Certificates.'] Every original marriage certificate, and the original entry thereof, made in compliance with the requirements of the statute," and a copy of such certificate, or of such entry, duly certified,^ must be received in all Courts and places, as presumptive evidence of the fact of such mar- Offices of the State Oovernment, Papers deposited in tJie.] Copies of papers in the office of the superintendent of the banking department, duly certified by him under his official seal, are evidence in all cases, equally and in like manner as the originals of said papers ; and an impression of such seal d.lrectly on paper is as valid as if made on wafer or wax.' A copy of any resolution of the board of canal commission- ers, authorizing the erection of a building on any dam, pier, mole, or other work, certified by the secretary of the board, is, in all cases, evidence equally and in the same man- ner as the original.' Copies of all books and papers pertaining to the duties of the auditor of the canal department, or to the duties of the commissioners of the canal fund, or of the canal board, and transcripts from the minutes of the proceedings of the com- missioners of the canal fund and of the canal board, certified by the said auditor, under his official seal, are evidence equally and in like manner as the originals.' Copies of papers deposited or filed in the offices of the comptroller and surveyor-general, certified by the officer in whose office they are deposited, are, in all cases, evidence equally and in like manner as the originals.' Every certificate or convej-ance executed by the comptrol- ler, in pursuance of the provisions of the chapter of the Ee- ' 2 E, S. 552, § 12. ° I-aws of 1S61, chap. IM, § 4 = Post, Part III, Chap. XVIII. ' Laws of J840, chap. 292,^. a id. ' Laws of '^848, chap, 162, -^^ 5. < 2 E. S. 141, § 17. 8 1K.S.l^r, §1T. ^ DOOUMENTAET EVIDENCE. 409 vised Statutes entitled, " Of the assessment and collection of taxes," may be recorded in the same manner and with the like effect as a deed regularly acknowledged or proved before any officer authorized by law to take the proof and acknowl- edgment of deeds.' Copies of accounts against persons who have balances of the public moneys in their hands unaccounted for, duly certi- fied by the comptroller, are sufficient evidence to support an action for the balances therein stated, subject to the right of the defendants to plead and give in evidence all such matters as shall be legal and proper for their defence or discharge." The comptroller is authorized to insert at the head of each column on the first page of each of the several books of sales of lands for taxes in his office, a brief statement of what the words or abbreviations or figures contained in the several columns are intended to represent.^ He is also authorized to insert in any certified copy given by him from any part of the books aforesaid, at the head of the respective columns therein, the statement at the head of the corresponding column in the book from which it was made, with the same effect as if the column from which such copy is taken were headed in Hke manner.* He is also authorized to furnish extracts from the returns of his department of unpaid taxes, and from the tax books therein, in reference to any lot or piece of land, cer- tifying that such extract contains all that is stated in such re- turn or book relating to such lot or piece of land, and such certified extract may be read in evidence in all Courts and proceedings with the same eflFect as the original return or book.' All copies of records and papers in the office of the Secretary of State, certified by him, and authenticated by the seal of his office, are, in all cases, evidence equally and in like man- ner as the oi-iginals.° Plank and turnpike-roads, Transfer looks of.'\ The trans- fer books of plank and turnpike-road companies formed under the general law, are presum^jtive evidence of the facts therein > 1 K. B. 420, § 10. « Id. § 2. 2 id. 178, §§ 24, 23. ' id. § 3. = Laws of 1849, chap. 180, § 1. 'IKS. 166, § 4 410 mSW-TOKK JUSTICE. stated, in favor of the plaintiff, in any suit or proceeding against such company, or against any one or more stockhold- ers, or against such company and one or more stockholders jointly." Printers' affidavits.] The affidavit of the printer, or fore- man of such printer, of any public newspaper published in this State, of the publication of any notice or advertisement which, by any law of this State, is required to be pub- lished in such newspaper, is entitled to be read in evi- dence in all Courts of Justice in this State, and in all pro- ceedings before any officer, body, or board, in which it shall be deemed necessary to refer thereto, and will be prima facie evidence of such publication, and of the facts stated therein.'' Redemption of real estate, Certificates of] Wbenever any redemption of real estate sold on execution is made, it is the duty of the officer making the sale, and of every other person lawfully acting on his behalf, to execute to the person making such redemption, his certificate, truly stating aU the facts transpiring before him at the making of such redemption, as shall be sufficient to show the fact of such redemption.' Such certificate may be proved or acknowledged as deeds are re- quired to be, and, being recorded in the clerk's office of the county where the real estate lies, has the same effect, as against subsequent purchasers and incumbrancers, as deeds and conveyances duly proved and recorded ; and such certi- ficate, or the record thereof, or a duly authenticated copy of such record, must be received in all Courts and places as^*^ ma facie evidence of the facts therein stated.' Statutes of this State.] A certificate by the revisers of the Kevised Statutes, or by any two of them, certifying the same to have been examined and compared by them with the ori- ginal acts, and with the acts amending such originals, and de- posited, with a copy of such Statutes, in the office of the Sec- retary of State, is conclusive evidence of such statutes.' Such > Laws of 184T, chap. 210, § 48. * id. § 6. a Laws of 1835, chap. 169. = Laws of 1828, chap. 20, § 25. »LawsofX84r, chap.410, §5. DOOUMENTAET EVIDENCE. 411 certificate must be printed in eacli copy of the Revised Stat- utes published under the direction of the revisers ; and every copy so pi'inted by the printers employed for that purpose, in vsrhich such certificate shall be inserted, may be read in evi- dence in all Courts of Justice, and in all proceedings before any oflacer, board or body, in this State/ Each volume of the laws hereafter printed for the State, must contain the certificate of the Secretary of State, to the effect that the said volume was printed under his direction.' All laws passed by the Legislature may be read in evidence from the volumes printed under the direction of the Secretary of State, pursuant to the sixth section of the act entitled, "An act to provide for the public printing," passed January 21, 1843, in the same manner and with the like effect as laws heretofore published by the State printer.' Taxes unpaid, Gertificates of.'] Certificates given by county treasurers, of the amount of taxes on lands, with their receipts endorsed for the amount paid thereon, are presumptive evi- dence of such payment, and of the facts stated therein.* Town- Clerics, Papers in offices of.] Copies of all papers duly filed in the ofiice of a town-clerk, including those filed with him as clerk of the town superintendent of common schools, ^and transcripts from the book of records certified by him, are evidence in all Courts, in like manner as if the origi- nals were produced.' Villages, Certificates of incorporation and jyroceedings of] Certificates of the incorporation of villages, or transcripts from the record thereof, certified by the county clerk with whom the same shall have been filed, are presumptive evi- dence of the facts therein stated." The leases for unpaid taxes, executed by the trustees of in- corporated villages, are presumptive evidence that all proceed- ings which terminated in making such leases, from and inclu- ding the voting of the tax, or the directing of the side-walk 1 Laws of 1828, chap. 20, § 26. 4 Laws of 1850, chap. 298, § 84. » Laws of 1843, obap. 98. § 1. "IRS. 3B0, § 16. > id. § 2. • Laws of 1847, chap. 426, § 16. 412 NEW-TOEK JUSTICE. to be made or repaired, to and including such leasing, were legal.' The certificates of the clerks of such villages are evidence of the publication of the village ordinances or by-laws.' Wills.] Every will of real estate duly proved, must have a certificate of such proof endorsed thereon, signed by the surrogate, and attested by his seal of office, and may be read in evidence, without further proof thereof. The record of such will, made by the surrogate before whom the same was proved, and the exemplification of such record by the surro- gate in whose custody the same may be, may be received in evidence, and will be as effectual, in all cases, as the orginal will would be, if produced and proved, and may in like man- ner be repelled by contrary proof.' Written instruments generally, Proof or acknowledgment o/".] Every written instrument, except promissory notes and bills of exchange, and except the last wills of deceased per- sons, may be proved or acknowledged in the manner now provided by law for taking the proof or acknowledgment of conveyances of real estate ; and the certificate of the proper officer, endorsed thereon, will entitle such instrument to be received in evidence on the trial of any action, with the same efifect, and in the same manner, as. if such instrument were a t convevance of reaL estate.'' x' ^ ^ (^^f-rt^*^ ^M^U/r''*^ 18. PRIVATE "WRITINGS. The last class of written evidence which we propose to con- sider, is that of private writings. (1.) Production of ^private writings. In general, all private writings given in evidence, must be produced, and the execution of them be proved ; or their ab- sence must be duly accounted for, and their loss supplied by secondary evidence.' If the instrument is lost, the party is required to give some 1 Laws of 184T, chap. 426, § 64. * Laws of 1S3S, chap. 271, § 9. ' Laws of 1861, cliap. 619, § 4. » 1 Groenleaf on Evidence, § 557. '2E.S.58, §16. PEIVATE WEITINGS. 413 evidence that sucli a paper once existed, and that a lona fide and diligent search has been nnsuccessfully made for it in the place where it was most likely to be found, if the nature of the case admits of such proof.' Tlie testimony of the party is admissible to prove those facts." The statute provides, that whenever a party to an action shall have been permitted to prove by his own oath the loss of any instrument, in order to admit other proof of the contents thereof, the adverse party may also be examined by the Court on oath, to disprove such loss, and to account for such instrument ;^ but the evidence of the parties in such case is to be confined to the question of the loss.* When a foundation is thus laid for the admission of second- ary evidence of the execution and contents of an instrument, parol evidence is admissible to show what the instrument contained." But the party offering the secondary evidence must still comply with the rule requiring the best evidence. Thus, to prove the contents of a lost or destroyed paper by a copy, proof that it is in the hand- writing of one who was requested to make a copy, and that it is substantially the same as the ori- ginal, is not the best evidence; the copyist himself should be produced." Where the instrument or writing is in the hands or power of an adverse party, the Code makes this provision for obtain- ing an inspection of it : The Court before which an ac- tion is pending, or a Judge or Justice thereof, may in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any books, papers and documents in his possession, or under his control, containing evidence re- lating to the merits of the action, or the defence therein. If compliance with the order be refused, the Court, on motion, may exclude the paper from being given in evidence, or pun- ish the party refusing, or both.' Besides the mode thus pointed out by the Code, in which 1 1 G-rcenleaf on Eyidence, § 558. = 1 Gaines, 2T ; 2 id. 368 ; 2 Johnson's Cases, 2 16 Johnson, 193 ; 20 id. 144; 5 Denio, 64 488 ; 6 Cowen, 404 ; 2 HiU, 606. > 2 E. 8. 406, I T4. •12 Wendell, 446. * 1 Hill, 172. ' Code, § 388. 414 NEW-TOEK JTSTIOE. to obtain an inspection of an instrument in the hands of an adverse party, there is another mode which obtains in prac- tice, of compelling such party to produce original papers, namely, by serving on him or his attorney a vrritten notice to produce them ; not that, on proof of such notice, he is compellable to give evidence against himself, but to lay a foundation for the introduction of secondary evidence of the contents of the document or writing, by showing that the other party has done all in his power to produce the original.' A party is not bound to produce a paper, unless the opposite party has given him notice for that purpose ;" and where the paper on which the action is founded is in possession of the adverse party, and the other party has not given notice to produce it, whereby to entitle himself to prove its contents, he will be nonsuited.' Where the notice to produce has been regularly served, and the instrument is not produced, parol evidence may be given of its contents." But before such evidence is admitted, it should be shown that the instrument is in existence, and in the possession or power of the other party, and that it is gen- uine. If the paper is produced, and the party producing it claims an interest under it, its execution need not be proved.* Eut where the party producing the instrument claims no in- terest under it, it must be regularly proved.' If the party refuses to produce the paper, the refusal does not afford any presumptive evidence of its contents, or any inference as to the truth of the fact to prove which it is called for.' There are three cases in which a notice to produce is not necessary: 1st. Where the instrument to be produced and that to be proved are duplicate originals ; for, in such case, the original being in the hands of the other party, it is in his power to contradict the duplicate original, by producing the other, if they vary ;° 2d. Where the instrument to be proved is itself a notice, such as a notice to quit, or notice of the dis- honor of a bill of exchange ;' 3d. Where the form of the » 1 Grcenleaf on Evidence, § 660. « 12 Johnson,i88 ; '17 id 168 ; 7 Wendell, 218. » 1 Johnson, 840. ' 17 Johnson, 158> " 12 Id. 221. ' 7 Wendell, 81. < 7 id 19 ; 11 id. 446 ; 18 id. 689 ; 18 id. 451 J » 1 Greenleaf on Evidence, § 661. 6 Cowen, 90. • 18 Johnson, 470. PEIVATE •WEITmGS. 415 pleadings, or of the action, gives a party notice that the plain- tiif intends to charge him with the possession of the instru- ment." The notice may be directed to the party, or to his attorney, and may be served on either. It must describe the writing demanded, so as to leave no doubt what particular instrument is intended to be called for." What is a reasonable notice must depend upon the circumstances of the case. Where the paper is in Court, or near at hand, a notice after the trial has commenced may be sufficient.' But where the paper is at a distance, the party or his attorney is not bound, upon receiv- ing notice, to leave the Court to procure it.* If the paper is in the possession of the attorney for the ad- verse party, the party desiring it must give notice to produce it; he cannot have the beneiit of the evidence by subpoena- ing the attorney to produce it, and compelling him to testify, if it was delivered to him by his client as supporting the ac- tion or defence." (3.) Mode of proving private writings. The Code makes the following provision in regard to the proof of private writings : Either party may exhibit to the other, or to his attorney, at any time before the trial, any pa- per material to the action, and request an admission in wri- ting of its genuineness. If the adverse party or his attorney fail to give the admission, within four days after the request, and if the party exhibiting the paper be afterwards put to ex- pense in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense, to be ascertained at the trial, shall be paid by the party refusing the admission, unless it appear to the satisfaction of the Court that there were good reasons for the refusal.' If the adverse party or his attorney refuses to give the ad- mission, the instrument, being produced in Court, must be proved in one of the following ways : > 13 Johnson, 90 ; 17 id. 293 ; 20 id. 63 : 8 Wen- < id.; T Cowen, T89. dell, 486; 13 id. 605; 1 Sandford, 601./^ ii'/lw^^ « 4 Wendell, 558 ; 7 id. 316 = 1 Greenleaf on Evidence, § 562. -^ « Code, § 888. ' 8 Wendell, 296 ; 7 id. 216 ; 18 id. 506. 416 NEW-TOEK JUSTICE. 1st. If it is not attested by a subscribing witness, it will be sufficiently proved by competent proof that the signature of the person, whose name is subscribed thereto, is genuine. After proof that the signature is genuine, the law presumes that the instrument is genuine throughout, when there are no indications to be found upon it to rebut such a presumption.' If the instrument appears to have been altered, it is incum- bent on the party offering it in evidence, to explain this ap- pearance." 2d. If the instrument has been attested by one or more subscribing witnesses, it must be proved by them or one of them.' The subscribing witness must be called, for the reason that he is the person selected and agreed on by the parties as the witness of their act in making the instrument, and because he may be able to state the time of the execu- tion, and other material facts attending the transaction, which may not be within the knowledge of any other person." This rule is of universal application, and is extended to every species of writing attested by a witness." The subscribing witness must have been present when the instrument was exe- cuted, and must then have subscribed his name to it as a witness of its execution." He heed not, however, have been present at the very moment of its execution ; for, if he is called in by the parties immediately afterwards, and told that it is their deed or agreement, and requested to subscribe his name as a witness, that will be enough. The execution by the parties, and the subscribing by the witness, are then considered as parts of the same transaction.' But, although the witness was present at the execution, if he did not sub- scribe the instrument at that time, but did it afterwards, with- out the request of the parties, he is not a good subscribing witness. He may prove the instrument, if there was no attesting witness, because he saw it executed, and there is no better evidence of the execution. But, if there was a sub- scribing witness at the time, he must be called." Proof of 1 12 Shcpley, 254 Johnson, 4T7 ; 2 Wendell, 5T5. 2 1 Qreenleaf on Evidence, §564 'i^ 'Id. §669. ' 1 Esplnasse, 97; 3 id. ITl; 3 Washington's 4 6 Hill, 8118. C. C. E.81,42. , »2Starkie, N. P. 180; 6 Binney, 16; 8 » 2 WeudeU, 576 ; 3 Campbell, 282. '2 '' ' PEIVATE WETTINGS. 417 the confession or acknowledgment of tlie party, that he exe- cuted the instrument, will not be received as a substitute for the testimony of the subscribing witness.' To the rule which requires the production of the subscrib- ing witness, there are several exc.eptions. The first is, where the instrument is thirty years old, in which case it is said to prove itself." A second exception is, where the instrument is produced pursuant to notice, by an adverse party who claims an inter- est under it, or is a party to it. In such case, the party pro- ducing the instrument is not permitted to call on the other for proof of its execution ; for, by claiming an interest under it, he admits its execution.' A third exception arises, where a party, either from physi- cal or legal causes, is unable to produce the subscribing wit- ness. Thus, if the witness is proved or presumed td be dead,* or cannot be found, after diligent inquiry,' or is out of the jurisdiction of the Court,' the instrument may be proved by proving his hand- writing.' "Where there are two witnesses to a deed, both of whom are dead, proof of the hand-writing of either entitles it to be read in evidence." The declarations of the witness are admissible, to show that he is beyond the jurisdiction of the Court,' and his death may be proved by a ;,,.If the subscribmg witness denies the execution or the in- strument, it may be established by other evidence." If the hand-writing of the witness cannot be proved, then proof of the hand-writing of the parties will be sufficient to authorize the reception of the instrument." The hand-writing of the party, or of the attesting witness, may be proved by a witness who has had previous knowledge of it, derived either from having seen the person write, or from authentic papers received in the course of business." ' 2 East, 183 ; 8 Johnson, 47 ; 6 Hill, 808. ' 4 Johnson, 461 ; 4 Wendell, 818. «8 Johnson's Cases, 283 ; 5 Cowen, 221 ; 4 8 9 Cowen, 140; 2 Barbour, 644 Wendell, 2TT ; 7 Id. 8T1 ; 11 id. 608. « 5 id. 449. ? =12 Johnson, 28»i 17 id. 158; 7 Wendell, "SCowen, 123. 216. "Douglas, 216; 3 Espinasse, 173, note ; i *1 Johnson's Cases, 230; 9 Cowen, 140; 2 Johnson, 451. Barbour, 644. " 11 WendeU, 96. ' 8 Johnson, 121 ; 11 id. 64 ; 9 'Wendell, 162. " 2 Johnson's Cases, 211 ; B Johnson, 144; • 4 Id. 818 ; 5 Barbour, 449. 19 id. 134. 418 NEW-TOEK JUSTIOE. But, if the witness has had no previous knowledge of the hand- writing, he cannot be permitted to decide on it in Court, from a comparison of hands/ The testimony of experts, or of persons supposed to be skilled in detecting forgeries, as to the genuineness of an instrument, based upon a mere inspection of the instrument itself, is not admissible." (3.) Ackwissibility of shop-hooTcs. We come now to the consideration of the admissibility of a party's shop-books in his own favor. The entries in such books may be divided into entries made by the clerk of the party, and entries made by the party himself In the former case, to render the entries made by the clerk admissible as evidence of goods sold, they must have been made by him in the course of his duty, in books kept for the purpose, and contemporaneously with the delivery of the goods,' and the clerk must be dead.' If he is living, though out of the State, he must be called, or examined on commis- sion ; otherwise, his entry or memorandum cannot be re- ceived.' If the clerk is called, his evidence must be governed by the, same rules as those before stated in respect to refresh- ing the memory of witnesses by permitting them to inspect written memoranda made by them." In th^ latter cSse, with respect to the admission of books kept by the party himself, the true rule is well stated in the case of Yosbv/rgh v. Thayer^ where the Court remark, in speaking of the admissibility of the plaintiff's books, as evi- dence of his demand: "In a case like the present, it is believed that the usage and the necessity of admitting such proof, has been so long sanctioned and felt in our Courts of justice, that it is now too late to question its admissibility. The admission of books of account in evidence, under proper limitations and restrictions, is not calculated to excite alarm, or to produce injurious consequences. They are not evidence of money lent ; because such a transaction is not, in the usual 1 9 Cowen, 94;6Hill,18Z;l Denio, 343. » 6 Cowen, 162 ; 16 WendoU, 586 ; 2 Hill, 537 » Id. ; 18 'Wondoll, 81. • Ante, p. 880. • 1 Greenleaf on Evidence, § UT, ' 12 Johnson, 461. ««Hill,68T; 2 Salkeid, 690. PRIVATE WErrrnGS. 419 course of ttisiness, a matter of book account." They are not evidence in the case of a single charge ; because there exists, in such case, no regular dealing between the parties." They ought not to be admitted where there are several charges, unless a foundation is first laid for their admission, by prov- ing that the party had no clerk, that some of the articles charged have been delivered,' that the books produced are the account books of the party, and that he keeps fair and honest accounts ; ' and this, by those who have dealt and settled with him. Under these restrictions, from the neces- sity of the case, and from the consideration that the party debited is shown to have reposed confidence, by dealing with and being trusted by the other party, they are evidence for the consideration of the jury." In addition to the requisites, thus stated, there must also have existed, to render the books admissible, a right to charge, at the time when the service was rendered, or the goods delivered/ The oath of thg^ party^ is not allowed." ^'^^Jt'^:^^^^'^^-'^'^^ If a party offers^is books, he mu^t produce all of them, and must allow the opposite party the benefit of all the entries they contain ; ' and if the books are offered to estab- lish certain matters, with the qualification that they shall not be received to prove other matters, to show which they ^re equ^v,compete]jt. th^y ^ould be rejected.°''<3=-«-*^'^'' "^"TThe party against whom the booB are offered may prove any circumstances which affect their credit, and thus render them incompetent. Thus, he may show that gross or mate- rial alterations have been made, or that entries have been made since the controversy arose, and even that they were not made at or near the time of the transaction. In short, anything may be proved which will show that the books are unworthy of credit ; and, if the proof sustains the objection, it is the duty of the Court to reject the evidence as incompe- tent, and leave the party to his common law proof." ' 8 Johnson, 212. V ' i ^/ ,/ " 20 id. 72. »4Do)Qlo, 854 '15 Johnson, 409; 7 Barlonr.lOT. ,',,'^>-^, Md. e8Hlll,74 ,Z^i /Ja^/Ak. ■• 11 "Wendell, 668; 7 Barhour, 107. » 7 Barbour, 107 ; 2 Massuchnstjto Bep. 217. » 16 Wendell, 586. 420 NEW-TOEK JUSTICE. 19. EVIDENCE IN PARTICULAR ACTIONS. Having thus considered the general rules of eyidence, we propose now to consider the particular evidence applicable to some of the actions, and subjects and incidents of actions, which most usually arise in Justices' Courts. (1.) Agency. It may be stated as a general rule, that the authority of an agent may be proved by words spoken, or by any writing, un- der seal or not, or by acts and implications.' Thus, an authori- ty to sign promissory notes may be proved by verbal commu- nications, or by implication.' Biit where the act to be done is required to be done by a writing under seal, there the author- ity to do it must also be under seal, and be produced.' The authority of agents of corporations may be proved by parol evidence, and their appointment, and the extent of their au- thority, may be established by circumstances.* If the author- ity of the agent was verbally conferred, the agent himself is a competent witness to prove it.' If the relation of principal and agent did not exist at the time of the transaction, it may be shown to have arisen after- wards, by evidence of a subsequent ratification by the princi- pal ;° though, if the action is against the agent, on the ground that he had no authority to use the name of his principal, he cannot set up in defence aeubsequent ratification, but must show that he had authority at the time the act was done.' (2.) Assumpsit. The Code having abolished all forms of actions, the action of assumpsit, eo nomine, no longer remains ; but, though its distincive appellation is taken away, the action, and the rules of evidence applicable to it, will endure as long as right and remedy have any place in a Court of Justice. The action is now called an action arising on contract for the recovery of money only,' and is founded upon a promise or undertaking > story on Agency, § 4T. '8 Cowen, 60; 4 Wendell, 465 ; 5 Hill, lOT \, ' id. § 50. ■ 1 OomBtook, 4»9^ ^ J i > 9 WendeJI, 54. . '8 Wendell, 494; 1 Denio, 4T4. * 4 Oowon, 646 ; 21 WendeU, 696. ' Code, $ 88. • 1 Greonleaf on ETidence, 1 416. ASStlMPSIT. 421 of the defendaBt, not under seal ; tlie plaintiff always averring substantially that the defendant undertook and promised to pay the money sued for, or to do the act mentioned. "We have before spoken of express and implied contracts.' One great difference between them is in the mode of proof. In an action on an express contract, the evidence of the prom- ise is direct, the contract being produced ; while in action on an implied contract it may be circumstantial, to be consider- ed and weighed by the jury. Thus, in an action for work and labor, under a written contract, the production of the contract evidences the promise. If the contract was verbal, proof of the services rendered, and of a request, warrants the legal implication of a promise to pay for them, and, after verdict, the promise is presumed to have been made.' In all actions upon contracts not under seal, except actions by endorsees upon bills and notes, the plaintiff must prove a consideration for the alleged promise of the defendant,' and all the other material facts alleged, such as, performance of conditions precedent,* notice and demand, when necessary, &c.; and, if the action is for the non-delivery of goods at a par- ticular time and place, he must prove readiness and willing- ness to receive and pay for the goods.' So, also, in actions for goods sold and delivered, money lent or paid, or materials furnished, where there is no written evidence of the contract, a request by the defendant should be proved ;° for, generally, no man can make himself a creditor of another, unsolicited and unasked. Where there has been a subsequent express promise, or a subsequent assent, the jury may iind a previous request ; and the assent may be inferred from the defendant's knowledge of, and silent acquiescence in, the plaintiff's act.' "Where there are several plaintiffs, it must be shown that the contract was made with them all ; and, where the plaintiff sues in a particular character, as guardian,' or receiver, he must show how he was appointed.' > Ante, p. 3S. 71. = 10 Johnson, 248. ' '2 Greenleaf on Evidence, |§ lOT, 108; 1 = 4 id. 280. Johnson, 87&/ 7 , •' .3t> •:'" * 14 ■Wendell, 25T ; 16 id. 622 ; • 6 Denio, 406. » 8 Cowen, 235. ' 12 Johnson, 209 ; 5 Cowen, 404 ; 18 Wen- ' 17 Wendell, 197 ; 4 Denio, 80 ; 7 Barboa dell, 285 ; 1 Hill, 619. i /i.S^ i, A yrj , 204. • 8 Johnson, 434 ; 8 id. 486 ; 10 id. 861 ; \((iL 422 NEW-TOKK JUSTICE. In an action for money lent, the loan must be proved ;' and, in an action for money paid, it must appear that money, or its equivalent, was actually advanced.' In the latter case, where no express order or request has been given, it will or- dinarily be sufficient for the plaintiff to show, that he has paid money for the defendant for a reasonable cause, and not officiously.' In an action for money had and received, the plaintiff's claim may be sustained by any legal evidence which shows that the defendant has received or obtained possession of the money of the plaintiff, and ought, in equity and good con- science, to pay it over to him." Thus, evidence of the re- scission of a contract is admissible to sustain an action to recover back money paid upon it.' Positive evidence that the defendant has received money belonging to the plaintiff, is not in all cases necessary ; but where, from the facts proved, it may be fairly presumed that he has received the plaintiff's money, the plaintiff is entitled to recover." (3.) Common Carriers. In an action against a common carrier, it is necessary for the plaintiff to establish, first, the contract; secondly, the delivery of the goods, or the presence of the passenger in the conveyance ; and thirdly, the defendant's breach of his con- tract. Whatever may be the character of the demand against the defendant, whether it be for the wrongful conversion of goods, or for their non-delivery, or for misfeasance or malfeasance while in charge of them, the contract, as averred in the com- plaint, must be proved.' K the defendant is shown to be a common carrier, the law supplies proof of the contract, so far as regards the extent and degree of his liability.' But, if he is n-ot a common carrier, the terms of his undertaking must be proved. And, in either 1 4 Denio, 108 ; 1 Comstock, S7T. ' 5 Johnson, 86 ; 12 id. 174. s T Johnson, 182 ; 8 id. 202 ; 11 id. 404; 1 « T id. 182. / '-« ,^:if'/' Wendell, 424. ' 1 Bingham's N. 0. 162. ' 4 Taunton, 190. °2 Greenleaf on Evidonoe, § 210. 4 3GreonlcafonEvidence, §11T • • * COMMON CAEEIEE8. 423 case, if there was an express contract, that alone must be relied on, and no other can be implied.' The defendant is proved to be a common carrier, by evidence that he under- takes to carry for persons generally, exercising the business as a public employment, and holding himself out as ready to en- gage in the transportation of money or goods for hire, as a business, and not as a casual occupation.' The contract must also appear to have been made with the plaintiff, and by the defendant. When, therefore, goods are sent by the vendor to the vendee, at the risk of the latter, the contract of the carrier is with the vendee, whose agent he becomes by receiving the goods, and who alone is entitled to sue ; unless the vendor expressly contracts with the carrier, in his own behalf, for the payment of the freight, or unless the property was not to pass to the vendee until the goods reached his hands, in which case the vendor is the proper plaintiff.^ If a receipt was given for the goods it should be produced ; and notice should be given to the defendant to produce his book of entries and way-bill, if any, in order to show a deliv- ery of the goods to him." The plaintiff must also prove what orders were given at the time of delivery, as to the carriage of the goods, and what direction was upon the package." To support an averment of the loss of goods, it is enough for the plaintiff to show that the goods have not in fact arrived.' To prove the contents and value of lost baggage, in an action against a rail-road company, the passenger by whom the bag- gage was delivered may be called as a witness ;' and gener- ally, the plaintiff's own affidavit as to the contents of the lost package is admissible, where the case, from its nature, admits of no better evidence' A carrier may avoid the charge of the plaintiff, by evidence of an express contract limiting his common law liability ; ' or by evidence that the loss resulted from the negligence of the plaintiff in the packing or delivery of the goods, or was ocea- > 8 Bosanqnet & Puller, 416. = 2 Starkie on Evidence, 331. " Story on Bailments, § 495; 2 Greenleaf on « id. 385. Eyidenee, § 21 1 ; 8 Wendell, 168. ' Laws of 1S50, chap. 140, § ST. ^ ' • ' ^ I ■-' 3 1 Term Eep. 659 ; 8 id. 830. ' 2 Greenleaf on Evidence, § 213. « 2 Greenleaf on Evidence, § 213. • 4 Sandford, 136. 424 HEW-TOEK JUSTICE. sioned by the act of God, or of the public enemy ; but in all Biich oases the Jjurden ofproof is.upon.the carrier.';; ', ,.; ; , j (4.) Damages. In the 1 roof of damages, the plaintiff is not confined to the precise number, sum, or value laid in his complaint, nor is he bound to prove the breach of contract to the full extent al- leged." Though he cannot recover greater damages than he has claimed, yet the jury may find damages for the value of goods wrongfully taken, beyond the value alleged.' So, where the plaintiff has claimed damages for a total loss of his property or goods, it is sufficient for him to show a partial loss.* So, also, in covenant or assumpsit, proof of part of the breach alleged is sufficient to entitle the plaintiff to recover. It is frequently said, that in actions for a wrong, evidence is admissible in aggravation or in mitigation of damages. But this means nothing more, than that evidence is admissi- ble of facts and circumstances which go in aggravation or mitigation of the injury itself. The circumstances thus prov- ed ought to be those only which belong to the act complain- ed of. The plaintiff' is not justly entitled to receive compen- sation beyond the extent of his injury; nor ought the defend- ant to pay to the plaintiff more than the plaintiff is entitled to receive.' In giving evidence of damages, both parties must be con- fined to the principal transaction complained of, and to its at- tendant circumstances and natural results, for these alone are put in issue. These results include all the damage to the plaintiff of which the act of the defendant was the efficient cause. ° Whether evidence of intention is admissible to affect the amount of damages, depends upon its materiality to the is- sue. Where an evil intent has manifested itself in acts and circumstances accompanying the principal transaction, they constitute part of the injury, and, if properly alleged, may be proved, like any other facts material to the issue. Thus, in 1 2 Sreeuleaf on Evidence, §220.' '- ' ' ^ ■" ' < 2 Burrow, 906. " id. § 260. 1" ' '? ° ^ Greenleaf on Evidence, § 266. >lWare,UT. -V , / - , -.■>'''■> « id. § 268. mFAiTCT. 425 trespass for taking goods, besides proof of their value, the in- convenience and injury occasioned to the plaintiff by taking them away under the particular circumstances of the case, and the abusive language and conduct of the defendant at the time, are admissible in evidence.' And generally, whenever the wrongful act of the defend- ant was accompanied by aggravating circumstances of indig- nity and insult, whether in the time, place, or manner, though they may not form a separate ground of action, yet, if proper- ly alleged, they may be given in evidence, to show the whole extent and degree of the injury." Thus, in an action for beat- ing the plaintiff's horse to death, evidence is admissible to show the defendant's wantonness and cruelty.' The defendant, on the other hand, may show any other cir- cumstances of the transaction in mitigation of the injury done by his trespass. Thus, where the defendant shot the plain- tiff's dog soon after he had been worrying the defendant's sheep, this fact, and the habits of the animal, were held to be competent evidence for the defendant, in the estimation of damages.' And, in trespass for carrying away the plaintiff's goods, the defendant may show that the goods did not belong to the plaintiff, and that they Jiave gone to the use of their owner. lU^^ '^'-~^'''' 'kJ: ' ' -- (5.) Infcmcy. Infancy is a personal privilege, of which no one but the in- fant can avail himself;' and the burden of proof rests on him, to show his infancy, aven though the, issue^is upon a ra,tifica- . tion 01 h]s contract alter he became ot age^ ahe miants age may be proved by the testimony of persons acquainted with him from his birth. ° The defence of infancy may be avoided, by showing that the contract which forms the subject matter of the action was for necessaries furnished, and that the infant had no means of obtaining them except by the pledge of his personal credit ; ' 2 Greenleaf on Evidence, § 272 ; 2 Day, 259; '9 Pickering, 651. 5 id. 140. « 2 Johnson, 279 ; 5 Id. 160. -f ' ' 8 Wilson, 19. ' 1 Term Eep. 648. ' 14 Johnson, 352. ' 2 Greenleaf on Evidence, § 868 ; 8 Hill, 14S' * 4Canington&Payne, 568. .' ^ '^ ' 426 ITEW-TOEK JUSTICE. or by showing a ratification of the contract, by a new prom- ise, after be became of age.' But, in the latter case, the prom- ise must have been to a party in interest, or to bis agent ; or there must have been an explicit admission of an existing lia- bility, from which a promise may be implied. A mere ad- mission to a stranger, that such a contract existed, is not a ratification." Evidence that articles furnished were necessa- ries, may be rebutted by proof that the infant lived under the roof of his parent, who provided him with such things as in his judgment appeared proper.' (6.) Limitations. Where the statute of limitations is set up in defence, by a plea that the cause of action did not accrue within the period prescribed by law prior to the commencement of the action, and that is denied, the burden of proof is on the plaintiff to show both a cause of action, and that the action was commenced with- in the period prescribed.* We have heretofore stated the rules as to when an action is commenced, and as to when the at- tempt to commence an action is equivalent to its commence- ment, within the meaning of the statute of limitations.' The plea of the statute may be avoided, by showing that the plaintiff was, at the time the cause of action accrued, under some one of the disabilities mentioned in the Code ; ' or, that the defendant was out of the State when the cause of action accrued, and the action was commenced within the prescribed time after his return ; ' or that, after it accrued, he departed from and resided out of the State ; ° or that the claim has been recognized by him as valid, by an acknowledgment or a new promise within the statute period.' No acknowledgment or promise is sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of the statute in regard to the time of com- mencing civil actions, unless the same be contained in some » 2 Paige, 419; 1 Denio, 460; 2 Sandford, = Ante, p. 14S. 806. » Code, § 101. a 8 Wendell, 4T9 ; 2 Hill, 120. ' id. § 100. s 2 Greenleaf on Evldenoe, § 866 ; 9 Johnaon, » la, 141 ; 2 Paige, 419. • 2 Greenleaf on Evidenoe, §§ 436, 440. * 2 Greenloaf on Evidence, § 431. PABTNEESHIP. 42T writing signed by the party to be cLarged thereby; but that rovisn jrest.. The payment oT principal 5r' interestis consid- , p: '•''Or^iiiferest.^ The'' payiment oT principal ered to be a sufficient acknowledgment that the whole debt is still due, to authorize the presumption of a promise to pay the remainder" "^^Z-,' /'•■'"" "'^ ^^■^'" ■''''/'''■; J/&^//K*/j ^i—pt-,,*^ ^ 'y '->'■.'. T' •^~^' If the note was negotiable, the following provisions of the statute apply: In any suit founded upon any negotiable promissory note, or bill of exchange, or in which such note, if produced, might be allowed as a set-off in the defence of any suit, if it appear, on the trial, that such note or bill was lost while it belonged to the party claiming the amount due thereon, parol or other evidence of the contents thereof may be given on such trial, and, notwithstanding such note or bill was negotiable, such party will be entitled to recover the amount due thereon, as if such note or bill had been produced.' But, to entitle the party to such recovery, he must execute a bond to the adverse party, in a penalty of at least double the amoimt of such note or bill, with two sureties, to be' approved- by the- Justice, conditioned to indemnify the adverse party, his heirs and personal representatives, against all claims by any other person on account of such bill or note, and against all costs and expenses by reason of such claim." These provisions do not extend to non-negotiable instruments," nor do they affect > Chttty on Billa, Chap. V. • 10 Johnson, 104 a 8 Johnson's Cases, 6, 869 ; 9 Wendell, 278 ; ' 12 Wendell, 1T8. 18 Id.' 66T ; 6 Hill, 836 ; 1 Denio, 116. « 2 E. S. 406, § 16. » 2 B. 8. 244, § 106. • Id. § T6. * Id. 406, § T4. " 12 Wendell, ITS. •6'WendeU,844; 19 Id. ITS, PEOMISSOBT NOTES. 431 any of the rights or liabilities of the parties, arising out of the proceedings to charge the drawer or endorser.' After the note is produced, the next step is to prove the signature of the defendant, where, by the nature of the action or the state of the pleadings, this proof may be required. The usual mode pf proof is, by e^^idence of the person's hand- writing," or of his admission of the fact.',^ If the note is nego- tiable, proof of the admission of its execution by the party making it, or proof of his hand-writing, is sufficient, even though there was a subscribing witness to the note, and he is neither produced nor accounted for.' If the note is not nego- tiable, and there is a sublcribin^ 'witness, he must be called.* If the note was executed by an agent, his authority and hand- writing must be proved." If there are several signatures, they must all be proved ; and an admission by one will not in general bind the others.' If the note is signed by a partnership firm, evidence of the partnership, and of the hand- writing of the partner who signed the note, will be sufficient.' 2. The relation of the defendant to the note.] The contract of the defendant is generally evidenced by producing the note. He will necessarily stand in the position of maker, endorser, or guarantor ; and where the performance by the plaintiff of any condition precedent to the liability of the defendant was necessary, as, where the defendant was endorser' demand of payment of the maker, and notice to the defendant, then the plaintiff must show that he has performed the condition. The evidence of such performance will be considered hereafter. 3. The interest of the plaintiff in the note.] The plaintiff must also prove his interest in the note, or his title to sue thereon. Where the action is between the immediate parties to the contract, as the payee and maker of the note, the plain- tiff ordinarily has only to produce the note and prove the 1 2 Hill, 482. " Ante, p. 420. . . ' Ante, p. 416. ' Ante, p 850 ; 21 Wendell, 365 ; 1 Espinasse, » 2 Johnson, 451; 8 id. 4T7; 16 id. 201; 2 18S. Wendell, 5T5. ' 2 Greenleaf on Efidence, § 169. < Ante, pp, 836,416. 4:32 NETW-TOEK JTJSTIOE. maker's signature. Where, however, the plaintiff was not a party to the note, but has derived his title by means of some intermediate transfer, the steps of this transfer become, to some extent, material to be proved. The extent to which the proof must be carried will generally depend upon the extent of the allegations in the complaint. Thus, if a note made payable to A. B., or bearer, is endorsed in blank by the payee, and the holder, in an action upon it against the maker, de- clares upon the endorsement, he must prove it ; although the allegation of the endorsement was unnecessary, for he might have sued as bearer only, in \^hich case the endorsement need not have been proved.' j>/ uf ^9-i>'^<^ -^-^ 3' The plaintiff is not bound to allege or prove any endorse- ments but such as are necessary to convey title to himself." Thus, if the plaintiff is the endorsee of a note which purports to be endorsed in blank by the payee and by several others, it will be sufficient for the plaintiff, in an action against the maker, to prove the endorsement by the payee.' All the other endorsements may be stricken out, even after the bill has been read in evidence.' If the plaintiff formerly held the' note and parted with it, and his endorsement appears upon it, still the presumption of title arising from possession entitles him to recover upon it, without proving that it was subsequently re-transferred to him, and without cancelling any endorsements subsequent to his own.' }(l<^fi^?T^ /?f. /fd-^/ "^tif^r^. If the note was made payable to the order of a fictitious person, and the party sued knew that fact when he became a party to it, or before he transferred it, this will dispense with proof of the hand- writing of the fictitious endorser ; ° and the note may be treated as though it were payable to bearer.' If the plaintiffs sue as endorsees of a note endorsed in blank they need not prove their partnership ; ' but if the note was endorsed to them specially by their firm name, and they > 2 Campbell, 8 ; 6 Pickering, 626 ; 2 Green- » Id. ; 8 Wheaton, 1T2. / i^ • - ■^ '• loaf on Evidence, § 163. " 8 Term Rep. 481 j 1 H. Blackstone, 669. » id. S 166. ■ ' 1 R. S. T68, § 6 ; 8 Hill, 112 ; 1 ComBtock, .« 6 Donio, 61. u^ 118. « 1 SvidJford, 8T, /^7 ! • ■ * 8 Campbell, 2S9. PEOMISSORT NOTES. 433 sue tliereon, strict proof must be given that the partnership consists of the persons who sue.' 4. The hreach of contract hy the defendant.'] The engage- ment of the defendant is either direct and absolute, or condi- tional. In the former case, as in an action against the maker of the note, it is not necessary for the plaintiff to show that a demand of payment was made at the place where the note was payable.' In the latter case, as in an action against an endorser, or a guarantor of the collection of a note, the un- dertaking of the defendant being conditional, that is, to pay in case the party primarily liable does not, the default of such party must be proved', unless 'the proof is in some way dis- pensed with. The party who receives a promissory note is understood thereby to contract with every other party who would be entitled to bring an action on paying it, that he will present it in proper time to the maker, or at the place where it is made payable, for payment ; to allow no extra time to the maker for payment ; and to give notice in a reasonable time, and without delay, to every such person, of a failure in the attempt to procure its payment. Any default or neglect in any of these respects will discharge every such person from responsibility on account of the non-payment of the note, and will operate, generally, as a satisfaction of any debt, demand, or value for which it was given.' In an action, therefore, against the endorser of a promissory note, it is necessary to prove a presentment of the note, and a demand of its pay- ment, at the place where it was made payable;' or, if the note was not made payable at any particular place, then a demand at the residence of the maker.' And the demand must be shown to have been made on the proper day, that is, the day when the note fell due, or, if it fell due on a Sunday or holiday, the day before.' A demand of payment may be made by a notary public, or by a person having a parol authority for ' 8 Camplcll, 240, note. * 9 Johnson, 121. » 4 Johnson, 188 ; 17 id. 248 ; S Cowen, 14T ; » 14 Id. 114 ; 19 id. 891 ; 8 DMo, 145 ; 1 Bm- 8 Id. 271 ; 8 Wendell, 18 : 7 Barbonr, 652. hour, 168 ; 1 Comstock, 821. • » 2 Greenleaf on Evidence, § 175. ' Laws of 1849, chap. 261. ^ 29 434 NEW-TOEK JUSTICE. that purpose, or by any one having lawful possession of the note.' The plaintiff must also prove that notice of the demand, and of the non-payment of the note, vras given to the endorser vrithin a reasonable time." The notice may be given by a notary public, or by any person duly authorized by the owner of the note ; ' but a notice from a mere stranger will not enure to the benefit of the holder.* The law does not pre- scribe any form of notice. It may be verbal,' or in writing. All that is necessary is, that it should be sufficient to put the endorser on enquiry, and to prepare him to pay or defend." If the notice was given by any other person than a notary, he should be called as a witness. The statute makes the following provision in regard to giving evidence of the official acts of a notary public, in pro- testing a note for non-payment, and giving notice thereof: In case of the death or insanity of any notary public, or of his absence or removal, so that his personal attendance or testimony cannot be procured in any mode provided by law, the original protest of such notary, under his official seal, upon such seal and his signature being duly proved, shall be presumptive evidence of the fact of any demand of accept- ance or of payment, therein stated.' Any note or memoran- -dum made by a notary public in his own hand- writing, or signed by him at the foot of any protest, or in a regular regis- ter of official acts kept by him, shall, in the cases specified in the last section, be presumptive evidence of the fact of any notice of non-acceptance or of non-payment having been sent or delivered.' It is further provided by a subsequent statute, as follows : In all actions at law, the certificate of a notary, under his seal of office, of the presentment by him of any promissory note or bill of exchange for acceptance or payment, and of any protest of such bill or note for non- acceptance or non-payment, and of the service of notice thereof on any or all of the parties to such bill of exchange or promissory note, and specifying the mode of giving such 1 18 Johnson, 280. " 4 Id. 566. s 1 Comstock, 418. "9 Id. 279 ; 21 id. 10 ; 1 Comstock, 418. > 18 Johnson, 280. ' 2 E. 8. 283, § 46. <8Wend6lI, 178. "id. §4^- PEOMISSOET NOTES. 435 notice, and the reputed place of residence of the party to whom the same was given, and the post-office nearest thereto, shall be presumptive evidence of the facts contained in such certificate ; but this section shall not apply to any case in which the defendant shall annex to his plea an afiidavit de- nying the fact of having received notice of non-acceptance or of non-payment of such note or bill.' If such an affidavit is made, the plaintiff must call the notary and prove the facts by him. If the attendance or testimony of the notary can- not be procured, or he is dead or insane, the plaintiff may give the original protest in evidence, as above provided for, notwithstanding the defendant has denied by affidavit the receipt of any notice." The contents of a notice of protest may be proved, with- out notice to produce it, either by a copy made by the wit- ness at the same time with the original, or by parol." The plaintiff need not prove that notice of the dishonor of the note was given, if the defendant has waived his right to such notice ; * nor need he prove a demand of payment, if that also has been waived." But the burden of proof is upon the plaintiff to show a waiver ; and a waiver of demand will not be inferred from a waiver of notice.' If the action is against a defendant as guarantor of the collection of a note, the plaintiff must give evidence of an attempt to collect the money from the principal debtor. Of this attempt, a judgment and execution against such debtor are prima facie evidence.' If there has been negligence or omission on the part of the holder of the note to sue the principal debtor, whereby a loss has ensued, the burden of proving such loss rests upon the defendant.' There are some defences, peculiar to actions on promissory notes, which will now be considered. The consideration of a note, as between the original parties to it, may always be inquired into, and the want or failure of consideration may be set up in bar of the action.' Thus, such > Laws of 1833, chap. 2T1, § 8. "SBarboui, 681. '18 Johnson, 4T0. * 1 Comstock, 186 j 8 Denio, 16. 'id. • 11 Wendell, 629. 'id. "id. • 4 Johnson, 296; 7 id. 26; 11 id. 60; 17 id. 801 ; 7 Cowen, 822 ; 9 Wendell, 278 ; 12 id. 479; 18 id. 605. 436 NEW-TORK JTJ8TI0B. a defence may be insisted on by the maker against the payee, and by the payee against his endorsee. The same rule ap- plies to purchasers of paper overdue,' to purchasers with no- tice,' and to purchasers who have given no value for it.' But on the other hand, as a general rule, no defect or infirm- ity of consideration, either in the creation or transfer of a negotiable security, can be given in evidence against a ioTia fide holder of it, who received it for a valuable consideration, be- fore it became due, and without notice of any infirmity attach- ing to it." If the consideration has only partially failed, that may be shown in defence pro tamto, where it can be inqui- red into at all.' But, in order to take advantage of such partial failure, the defendant must set it up in his an- swer.' Promissory notes and bills of exchange enjoy the privilege, conceded to no unsealed instrument not negotiable, of being presumed to be founded upon a valid and valuable consider- ation.' Hence it is generally unnecessary for the plaintiff to establish in the first instance that a note was given for such a consideration •' the burden of proof resting upon the defend- ant to establish the contrary. In an action by an endorsee of a note against the maker, if there are equities existing be- tween the maker and the payee, the plaintiff 's title muatirtt- first be impeached, before they can be given in evi- dence.' If the note was usurious in its inception, the maker may give evidence of the fact against any party who sues upon it ;'* and, if he has verified his answer, may call the plaintiff to prove the usury." And generally, he may call any one whose name appears upon the note, to prove that it was void in its inception, for usury, or other cause." 1 2 Johnson, 800 ; 8 Id. 464 ; 8 Oowen, 252 ; 5 » Id. Wondoll, 600 ; 24 id. 97 ; 6 Paige, 650 ; 6 Bar- ' 9 Id. 278 ; 18 id. 667. bonr's Ch. E. 408. » id. s 11 Jolinson, 128. • 6 Hill, 886. ' 23 Wendell, 811 ; 1 Denio, 638 ; 2 Hill, 140. ' » Laws of 1837, chap. 480, § 1. < 3 Gaines, 279 ; 1 Johnson's Cases, 169 ; 18 " id. § 2. Johnson, 62 ; 1 Comstook, 118. " 6 Cowen, 28, 188 ; 8 Wendell, 416. • 12 Wendell, 246; 18 id. 606. TENDER TRESPASS. 43T (10.) Tender. To support the issue of a tender of money, it is necessary for the defendant to show, that the precise sum, or more, was actually produced in current money, and offered to the plain- tiff.' It is sufficient to show a tender in bank notes, unless the creditor objected to the tender for that reason." It must also be shown that the tender was absolute ; for, if it was coupled with a condition, as that the holder of a note should strike out an endorsement upon it, in compromise of another matter,' or that the creditor should accept the amount ten- dered as the whole balance due,' or if any other terms were added which the acceptance of the amount tendered would cause the other party to admit, it was not a good tender. The tender must also be shown to have been made to the creditor himself, or to his agent, or to some person who had authority to receive the money for him." The plaintiff may avoid a plea of tender, by showing a subsequent demand of the money, and a refusal ; the burden of proving which, if it is denied, lies upon him. And he must also prove that such demand was made by some one who was authorized to give the debtor a discharge." If the contract was for the delivery of specific articles, of a cumbrous nature, and a breach of it is alleged, it will be sufficient for the defendant to show that he offered to deliver them as the plaintiff should direct.' And the plaintiff may avoid the evidence of a readiness and offer to deliver, by showing that the articles offered were defective in quality." (11.) Trespass. The substance of the complaint in an action of trespass is, that the defendant has forcibly and wrongfully injured prop- erty in the possession of the plaintiff. If the answer of the defendant contains, as it probably will, a general denial of the complaint, it will be necessary for the plaintiff to prove, 1. That the property was in his possession at the time of the > 15 ■Wendell, 63T. « 1 Campbell, ill. » 8 Wheatoi), 338 ; 10 Johnson, 476. ' Id. 478, note. » 14 Wendell, 221. ' 3 Johnson's Cases, 243 ; 8 Johnson, iii. . < 20 id. 47. '% WendeU, 662. 438 NEW-TOEK JUSTICJE. injury, and this rightfully as against the defendant ; and 2. That the injury was committed by the defendant with force. The possession of the plaintiff may be either actual, or con- structive ; but it must be the one or the other.' He must have such a right, as to be entitled to reduce the property to actual possession whenever he chooses. Possession of prop- erty by the agent or servant of the plaintiff, is a sufficient possession by the plaintiff, to enable him to maintain an action of trespass against a third person for taking it away.' Bare possession of a chattel is sufficient to maintain an action for the taking of it by a wrong-doer." Thus, the finder of goods has a sufficient possession to maintain the action against every person but the true owner." The plaintiff must also prove, that the injury was commit- ted by the defendant with force. And the defendant will be chargeable, if it appear that the act was done by his direction or command ; or by his servant, in the course of his master's business, or while executing his orders with ordinary care ; or by his domestic or reclaimed animals. If the action is for injuries done by a domestic animal, it is also necessary for the plaintiff to show that the owner had notice that it was accus- tomed to do mischief.' But the rule is otherwise where the mischief is done by such an animal while committing a tres- pass upon the close of another." It is not necessary for the plaintiff to show that the act was done with any unlawful or wrongful intent. It is enough if it was done without justifiable cause or motive, though it may h9.vab&en draie. accidentaUy and,bvpaistake.' j- J" /^^j^6z^e*^"^i ^(Tne allegation of the time when the 'ti-espkss' was commit- ted is not ordinarily material to be proved.' The answer of the defendant in an action of trespass usually contains a gen- eral denial of the allegations in the complaint, under which he may give evidence of any facts tending to disprove either of the propositions which the plaintiff is obliged to make out I 8 Johnson, 432. SIS. a 1 ■Wondell, 466. • id. » 18 Johnson, 141, S61. ' 19 Johnson, 881 ; 4 Donlo, 464. * 2 Saundora, 47 d. ° 2 Groenleaf on Evidonoe, § 624. » 18 Johnson, 839 ; 4 Denlo, 12T ; 1 Comstook, TEESPASS. 439 in order to maintain the action. Thus, under sucli issue it may be proved, that the plaintiff had no property in the goods in question, and that the defendant did not take them." But every defence which admits the defendant to have been ^Wma ^faoie a trespasser, and seeks to avoid the trespass, must be specially set forth." If the defendant justifies a destruction of the plaintiff's property on the ground that such destruction was necessary to the preservation of his own, he must aver and prove that he could not otherwise have preserved his own.' If the trespass is justified under civil or criminal process, that defence must be specially pleaded ;* and the party must prove every material fact of the authority under which he j ustifies. If a constable is sued for trespass in levying upon the plaintiff's property under an execution against him, and pleads accordingly, the execution must be produced, and, if regular on its face, will protect the officer ;' and it is not necessary for him to produce the judgment on which the execution was issued." But, if the officer is sued by A. for taking his prop- erty under an execution against B., the question to be tried is whether the property belonged to A. or to B. If it belonged to A., the execution, with or without the judgment, is no pro- tection, for it does notjcomm^nd l^e o^ per to tekp^.k Mop-- erty. ^But if A. clarms tm'e to me'^ property by virtue of a sale from B. to him, which is alleged to be fraudulent against B.'s judgment creditor, then it is necessary for the officer to produce the judgment on which the execution issued against B. But this is for the purpose of proving, in connection with other testimony, that the pretended sale from B. to A. was fraudulent and void, and that the property, therefore, still be- longs to B., and not to A. The judgment in such case is given in evidence, because it affects the title to the property in question, and not because it is for any other purpose ne- cessary to protect the officer.' If the plaintiff in a judgment is sued for trespass in taking » 2 Greenleaf on Evidence, § 625. • 12 Johnson, 25T; 6 'Wendell, 867; 2 Com- = Ck>de, § 64; 11 Johnson, 132; 8 Hill, 523, stock, 478. 619. » id. 475; 12 Johnson, 895. 3 2 Greenleaf on Eyidencc, § 680. '5 Hill, 194 ; 2 Comstock, 47T. < 3 Hill, 523, 619 ; 2 Comstock, 51T. 440 NEW-YOEK JUSTICE. property by virtue of an execution issued on such judgment, he must produce and prove the judgment.' If there are several defendants in an action of trespass, the plaintiff must show that they acted in concert in committing the trespass, in order to entitle him to a verdict against them as joint trespassers." (12.) Trespass on the Case. The distinction between an action of trespass, and one of trespass on the case, at common law, was, that by the former redress was sought for an injury accompanied by actual force, and by the latter for a wrong without force.' The distinction was often very subtle and perplexing, and of course no longer exists, since the abolition by the Code of all forms of actions. Almost all, however, of the rules of evidence applicable to those causes of action which formerly fell under the head of trespass on the case, are still applicable to the same causes of action when brought into a Court of Justice. In this action, if there are several plaintiffs, they must prove a joint cause of action, such as damage to their joint property, and the like.* If their interests are several, but the damage is joint, that is sufficient to maintain a joint action.' If the action is founded in tort, it is not necessary to prove all the defendants guilty ; for, as torts are several in their nature, the jury or the Justice may find some giiilty and others not." The particular day on which the injury is alleged to have been committed, is not material to be proved ;' nor isit ne- cessary to prove both malice and negligence on the part of the defendant in doing the act complained of, even though both have been averred. The action may be maintained on proof of negligence only.' The defendant may give in evidence, under a general denial, any matters which go to defeat the plaintiff's right to recover, as a release, satisfaction, or former recovery ;* and he may > 8 Hill, 625, 619. • 2 Johnson, 882. ' 10 Wendell, 654. ' 2 Greenleaf on Evidonco, § 229 ; 16 Massa- ' 2 Greenleaf on Eyldenoe, % 224. chusetts Kep. 472. * id. § 22T. '17 Johnson, 92. • 2 Saunders, 116 ; 2 Wilson, 114. • 3 Bnrrow, 1358. TEOVEE. 441 show that the plaintiff's negligence contributed to produce the injury complained of.' The statute of limitations must, however, as we have seen already, be specially pleaded.' (13.) Trffoer. This action is in substance an action to recover the value of personal chattels wrongfully converted by another to his own use. To entitle the plaintiff to recover, two points are essen- tial to be proved : 1. Property in the plaintiff,' and a right of possession at the time of conversion ; and, 2. A conversion of the thing by the defendant to his own use. Whether the de- fendant originally came to the possession of the thing right- fully or wrongfully, is not material.* The plaintiff should also be prepared to prove the value of the goods at the time and place of the conversion ; though this is not essential to the maintenance of the action.' The property in the plaintiff may be either general or special.' "Where he has a special property, he may maintain his action against even the general owner, if he wrongfully deprives him of the possession ; but, in such case, the plaintiff is entitled to recover only the value of his special interest.' Special property, in a strict sense, consists in the lawful cus- tody of goods, with a right to detain them against the general owner.' As against a stranger, a carrier or bailee has a suf- ficient property to enable him to maintain this action.' Where the plaintiff claims title to goods under a sale, and a question is made as to the time when the property passed, it is material for him to prove that everything the seller had to do was already done, and that nothing remained to be done on his own part, but to take away the specific goods." If he claims title to the property as a purchaser under au execution, he must prove the judgment as well as the execution ; " and the articles must have been sold specifically and separately. J 21 Wendell, 188, 616 ; 6 Hill, B92. ' T Cowen, 6T0 ; 8 "Wendell, 445 ; 2 Tanntoa, « Ante, p' 142. 268. • 1 Gaines, 14 ; 12 Johnson, 408 ; 14 id. 882 ; 6 6 2 Greenlcaf on Evidence, § 63T. Barbour, 362. » 12 Johnson, 468 ; 18 Wendell, 63. < 2 Greenleaf on Evidence, § 686. '" Barnewall & Cresawell, 360. • id. " 12 "Wendell, 74. « 12 Johnson, 408 j 2 Saunders, 4T a. "14 Johnson, 862, 442 KEW-TOEK JTTSTICE. The plaintiff must also show a right in himself to the pres- ent possession of the goods. If he has only a special property, there must ordinarily be evidence of actual possession ; ' but the general property has possession annexed to it by construc- tion of law." If the general owner has parted with the right of possession, as for instance to a lessee, he cannot maintain an action of trover for a conversion by a third person during the existence of the lease.' But if the general owner delivers goods to his agent to keep for him, and they are taken out of the possession of the agent by third persons, the general own- er, having the general property, which draws after it the pos- session, may maintain trespass or trover for the goods.* The plaintiff must in the next place show, that there has been a conversion of the goods by the defendant to his own use.' To constitute a conversion, it is not necessary to show a manual taking of the thing in question, nor that the defend- ant has applied it to his own use ; but the assuming a right to dispose of it, or the exercising dominion over it, to the exclu- sion of the plaintiff's right, is a conversion.' Every unlawful taking is, of itself, a conversion ; ' and so is the abuse of a pos- session originally lawful, or the breach of a trust under which the property was placed in the defendant's hands. It is not necessary, to support the action, that the defendant's posses- sion should originally have been illegal.' It is sufficient for the plaintiff to show that the defendant has taken the property into his own hands, or disposed of it to others, or exercised an actual conversion, it is incumbent on the plaintiff to give evidence of a demand and refusal at some time prior to the commencement of the action," the time not being material ; and also to show that the defendant had it in his power to give up the goods. If he has put it out of his power to deliver the goods, a demand before suit is unnecessary." If there has been no actual conversion, no demand and refusal can lay » 4 East, 211 ; 12 Johnson, 403. ' 15 Johnson, 481. //. CtJOtUi^- //, « 2 Saunders, 4T a. "10 id. 172. > 7 Term Kop. 9. '9 Barbour, 280. * 11 Johnson, 285. '» 6 Johnson, 44. « 6 Id. 44. . "1 Cowen, 75 ; 6 Wendell, 60a • 7 Id. 254; iO Id. 172; 6 Cowen, 828. 5" -(}l , ,, '' 2.^, DAMAGEa. 443 the foundation for an action, unless the party has the proper- ty in his possession, .so that he ,can comply with the deniand.' But a Qeiiiand: a^d refusal are only evidence of a prior coQyer-' sion, not in itself conclusive, but liable to be explained and rebutted by evidence to the contrary," or by showing that a compliance with the demand was impossible.' If the original taking was tortious, the plaintiff need not give evidence of a demand and refusal." The defendant, in reply to the evidence of the plaintiff, may show that the title to the goods was in himself, either abso- lutely, as general owner or joint owner with the plaintiff, or specially, as bailee or by way of lien ; * or he may show a paramount title in a stranger,' with which he is connected by some title or interest in himself.' Any lien, however, which a defendant may claim upon the property, for services render- ed, will be. considered as waived, if, at the time a demand is made, he places his refusal to deliver up the property upon some other ground.' The plaintiff may avoid evidence of the defendant's lien, by showing that, at the time the demand was made, he offered to discharge the defendant's claim, and made a formal tender of satisfaction.' CHAPTER XIY. OF DAMAGES. The general rule of law is, that whoever does an injury to another, is liable in damages to the extent of that inj ury ; and it matters not whether the injury is to the property, or the person, or the rights, or the reputation of another. This » 6 Barbour, 436 ; 2 Comstock, 293. 603. = 2 Saunders, 47 e.' • 11 id. 84; 11 Johnson, 529. > 1 Comstoet, 522. ' id. 4 15 Johnson, 431. « 2 Johnson's Cases, 411 ; 6 Wendell, 60a ' 2 Greenleaf on ETldence, § 648 ; 6 Wendell, • Id. 4e4A NEW-TOKK JUSTIOE. compensation is generally awarded according to certain rules of law, which neither the Court nor the jury are at liberty to disregard, but which equally control the conduct of both.' In cases growing out of the non-performance of contracts, or the infringement of rights, or the non-performance of duties created or imposed by law, in which there is no element of fraud, wilful negligence, or malice, the compensation recover- ed in damages consists generally of the direct pecuniary loss suffered; and, in mere money demands, this includes interest for the detention of the amount claimed. We propose to consider first, some of the various grades of damages, and then to speak of the rules of damages applicable to particular actions. 1. LIQUIDATED DAMAGES. ■ Parties who enter into an agreement, may, for the purpose of avoiding any question as to the amount of damages which the party who violates the contract shall pay, agree upon a definite sum, to be paid as liquidated or stipulated damages. Such sum will, prvma facie, be treated as damages, and not as a penality.' The distinction between -^hat is merely & penalty, and what is liquidated da/mages, has given rise to many and somewhat conflicting decisions. A penalty in a bond is only a security for the sum actually due ; and in a contract, for the damages actniaMy sustained. "Whether a sum agreed upon by the par- ties to a contract as the measure of darqages for its breach, shall be considered as liquidated damages, or only as a pen- alty, depends upon the intent of the parties, and the peculiar circumstances of the subject matter of the contract. If the damages must necessarily be wholly uncertain, and incapable of estimation, the party failing to perform will be held to pay the stipulated sum as liquidated damages. Accordingly, where the plaintiff gave $3,000 for the patronage and good- will of a newspaper establishment, and $500 for the type and printing apparatus, and the defendant covenanted that he ' Sedgwick on Damages, 80. ' 12 Barbour, 866. VINDICTIVE DAMAGKS. 445 would not publish, nor aid or assist in publishing, a rival pa- per, and fixed the measure of damages at $3,000, and did sub- sec[uently aid and assist in the publication of such paper, it was held that the plaintiff was entitled to recover the whole sum of $3,000 as liquidated damages.' It seems to be settled, that if the word penalty ov penal is used, the agreement cannot be construed as one for liquida- ted damages ; but where hoth penalty and liquidated damages are used, the construction must be governed by the intent of the parties. In most of the cases where the question of liqui- dated damages has arisen, there was an absolute agreement to do or not to do a particular act, followed by a stipulation in relation to the amount of damages in case of a breach. Where, in consideration of the conveyance to him of certain city lots for the price of $21,000 only, the defendant covenanted that he would, within a certain time, erect two brick houses there- on, or, in default thereof, pay to the vendor $4,000 on demand, the $4,000 were held to be liquidated damages ; and mainly on the ground, that the defendant had his election not to build, but instead thereof to pay the $4,000 as damages for the breach of his agreement." Where a physician, on the sale of his business, gave his bond conditioned that he would not practise within certain limits, and that, in case he did, he would pay a certain sum per month, that was held to be liquidated damages.' So, also, where a physician sold out to his partner, and bound himself in the sum of $500, liquidated damages, not to practise medicine in a certain village for five years.* An agreement for stipulated damages necessarily implies that they are to be received as a full satisfaction and compensation for a breach of the agreement.' 2. VINDICTIVE DAMAGES. Yindictive damages, or smart money, as it is frequently termed, may be given in actions for wrongs, and the jury may 1 IT Wendell, 44T, * 11 Barbour, 187. 3 261(1630. »» Paige, 101. > 4 id. 468. 446 HEW-TOEK JTTSTIOE, take into consideration the evil example of tlie defendant's conduct, and increase the damages.' o' .T'i*^/ J2v '*-- ^'T^^/ , In an action for heating a horse to death, the jury may give damages beyond the value of the horse, there being proof of great and wanton cruelty ;' and a jury may give smart money, though the defendant has been convicted and fined for the same transaction." In an action by a parent for an injury to his child, by which he lost his services, the jury can give damages only for the loss of service ;* and this, though the action be for an aggra- vated assault upon a daughter.' A lunatic, though responsible for an injury inflicted by him, is not liable in vindictive damages.' 3. GENERAL AND CONSEQUENTIAL DAMAGES. General damages are such as necessa/rily result from the in- jury complained of ; and they may be recovered without any averment of special damages in the complaint. Such dam- ages, however, as are the natural but not the necessary result of the injury, are special, and must be stated in the complaint.' So, also, where the damages sustained are not implied by law from the breach of the contract, the particular damage must, in general, be stated, or it cannot be recovered.' /^ l^u^'O J ;/ ' In all cases where one person has received personal injury and mutilation by the careless or negligent act of another, the bodily pain and suffering are part and parcel of the actual injury, for which the injured party is as much entitled to compensation in damages, as he is for the loss of time or the outlay of money. Damans for bodily pain and suffering, arising from physical injury, and connected with actual loss of time and money, are not exemplary or punitory in their character, in any strict or proper sense of those terms.' Where, in an action fpr a wrong, excessive damages have been given, the Court may, instead of setting aside the ver- 1 8 Johnson, 66. ' "8 Barbour, 64T. " 14 id. 8S2. » 12 Wendell, 64; 18 id. 890; 4 Comstock, s 6 Hill, 466. 180. « 24 Wendell, 429. ' 2 Barbour, 625, »4Denio,461. • 10 id. 621. i DAMAGES FOE BKEAOH OS CONTEACT GENEEAILT. 447 diet, give the plaintiff the option of reducing his verdict to a reasonable sum.' Where exemplary or vindictive damages are not recovera- ble, the principle upon which damages are to be given for wrongfully taking or detaining personal property, whether by force, by fraud, or by process of law, is, that the owner to whom compensation is due, must be fully indemnified, and that the wrong-doer must not be permitted to derive any ben- efit or advantage whatever from his wrongful act." Where, in a contract by one party to pay for certain ma- chinery to be made by the other party, the former refuses to pay, whereby the latter is disabled from performing, the damages recoverable by the latter are only his actual expendi- tures and losses.' Contingent profits, which might have been realized from the fulfilment of a contract, are not recoverable as damages for its breach.* In actions for wrongs, the value of property wrongfully taken, is, in estimating damages, not to be determined always by its market price. In some cases, as of family pictures, plate, and the like, its value to the owner, by reason of per- sonal or family considerations, ought to be considered by the jury, exercising both a sound discretion and a reasonable sympathy with the feelings of the owner.' In an action for the recovery of damages for injuries to the person, the jury must be satisfied from the evidence, not only that the defendant was guilty of negligence, but that the plaintiif was free from fault.' " 4. DAMAGES FOR BREACH OF CONTRACT GENERALLY. Where a contract to perform work and labor is abandoned by the parties, and entirely departed from in the doing of the work, the party doing it is entitled to recover according to the actual value of the work ; as, where a carpenter agrees to build a house according to a certain plan, and for a specific sum, and the plan is abandoned, so that it is impossible to trace the contract in the work done.' But where there is, by consent, a > 3 Sandford, 19, 784. 424; 4 id. 261. - -, ; » id. 614. <2 / ' ' ' S'n-Cl'ii-J- /j V<' ' 8 Sandford, 614. •--'- ' ' "c»,/»^ > 19 Johnson, 368. ' ' / -^' « 12 Barbour, 492. //' < L » . i- * IT Wendell, Tl ; 21 id. 822; 8 Barbour, ' 18 Wendell, 216. 4:4:8 NEW-TOKK .nTSTIOE. deviation from the plan, on a contract to perform the work at estimated prices, the estimates are the rule of payment, so far as the special contract can be traced, and, for the extra labor, the party is entitled to what it is worth.' Where one employed another to raft logs to market at a specified price, and put an end to the contract before any work was done, the measure of damages, in an action by the latter, was held to be the profit he could have made by the fulfil- ment of the contract, and the immediate loss he sustained ip Where, by the terms oi a contract for work and labor, the full price is not to be paid until the work is completed, and a complete performance becornes impossible by the act of the law, a contractor may recover for the work actually done, at the full prices agreed on ; but, where the completion of a job is arrested by the act or omission of the party for whom the work is done, the contractor has an election to treat the con- tract as rescinded, and recover the value of his labor, or he may sue upon the agreement, and recover for the work com- pleted, at the stipulated price, and for the loss in profits, or otherwise, sustained by the interruption.' If parties deviate from the terms of a special contract to perform work and labor, the contract price will, generally, in an action for the work done, be, so far as applicable, the rule of damages ; but where the contract is terminated by the em- ployer, against the will of the contractor, the latter is not confined to the contract price of the work done, but may bring his action for a breach of the agreement, and recover as damages the profits he would have made, if allowed to complete the work ; or he may bring his action for work and labor generally, and recover what the work done is actually worth. But if the contractor elects to consider the contract as rescinded, and brings his action for work and labor gener- ally, he cannot recover for profits upon the unexecuted part of the work ; and, in such case, the rule of damages is the ac- tual value of what has been done under the contract.' If one who hires another, declines his services, it is the duty 1 4 Wendell, 285. 'i Comstook, 411. 1 8 Barbour, 42S, * Id. 38S. DAMAGES ON A BEEACH OF WAHEAIfTT. 449 of tke latter to seek employment, and he can recover only Ms actual loss. Thus, if A. engages to furnish B.'s canal-boat with cargo, and fails to do so, B. must take what is offered by others, and can recover only for the deficiency in quantity and price.' Where personal services are contracted for, and the party hired is dismissed without cause, he is prima facie entitled to the contract compensation for the whole term, upon proof of willingness and offer to perform ; but it seems that, if he has worked for others during the time, his earnings should be de- ducted, and that, if he is offered similar employment in the same region, during the contract time, he is bound to ac- cept it.' Where a party, who is entitled to the performance of a con- tract for the delivery of certain articles, can himself, on the failure of the other party, procure them within a reasonable time, he is entitled only to a compensation for the additional expense and price, and for the injury resulting from the ne- cessary delay in procuring them ; for, if he can protect him- self from a loss, by reasonable exertions or common prudence, and fails to do so, he will not be permitted to throw the loss, which has arisen from such neglect, upon the other contract- ing party. ° Where property is sold by one person for another, and there is no proof of the price obtained, the measure of damages is the highest market price, for which, according to the evidence, the property could have been sold.'' If one who has contracted for board, leaves without just cause, the other party will not be entitled to recover the stipu- lated price as damages, but only the actual damages sustained by the breach of the contract.' , ^^"7^^^^^^:";^^ ^ 6. DAMAGES OK A BREACH OF WARRANTY. The measure of damages on a breach of the warranty of the title to a chattel, is, as a general rule, the price paid, with in- terest, together with the costs adjudged against the vendee in 1 21 "Wendell, 46T. « 4 Wendell, 628. a 2 Denio, 609. » 1 Deuio, 602, 606 ; 8 Id. 610. ' 4 Paige, 661. 30 450 NBW-YOEK JirSTICB. a suit against him by the true owner, but not the vendee's expenses in defending that suit.' In an action for a breach of the warranty of the quality of an article sold, where there is no fraud, the measure of dam- ages is the difference between the value of the article sold, as it was, and what its value would have been at the time of the sale, if it had been such as it was warranted to be ;' or, on a warranty of soundess, the difference between the value of the thing, as it was in fact, and what it would have been worth if it had been sound.' The price agreed upon, is, however, strong evidence of the actual value, and should never be de- parted from, unless upon clear proof.' In an action for a breach of warranty of soundness on the sale of a horse, the proper measure of damages is the differ- ence between the value of the horse at the time of the sale, considering him sound, and his value with the defect com- plained of.^ And, where the Court at the trial charged the jury, that if there was a breach of the warranty, the plain- tiff was entitled to recover the difference between the price he paid for the horse, and the amount he realized on a re- sale thereof, it was held erroneous." 6. DAMAGES FOR NOT DELIVERING GOODS SOLD. Where a contract is made for the sale and delivery of goods, and the price or consideration is paid at the time of making the contract, or at any time before that fixed for the delivery, and the vendor fails to deliver, the vendee is entitled to re- cover, as damages, the highest price of the goods at any time between the day when they should have been delivered and the day of trial.' This rule, however, is applicable only where the vendee' brings his action immediately after the breach. If ho delays, he is entitled only to the value -of, the goods at the time of the commencement of the suit.' But where, on a sale of goods, the contract price is not to be paid at the time of making the contract, but is to be paid 1 5 ■Wendell, 586. • 10 Bartonr W«! 'J.. 1 1 = 2 Hill, 288. " 8 Cowen, 82 ; 7 id. 681, » 4 id. 626. 'Id. Md. DAMAGES AGAINST COMMON OAEEIEES AND FACTOES. 451 upon the delivery of the goods, the measure of damages for the non-delivery of the goods, is their value at the day ap- pointed for the delivery, less the contract price ;' and this, without reference to the price at which the vendee may have agreed to sell the goods to others in the meantime." The measure of damages for the non-performance of a con- tract to deliver an article of merchandize at a fixed place and on a specified day, is the difference between the contract price, if unpaid, and the market value of the article on the day and at the place of delivery. Evidence of the market value at other places is inadmissible, where a market value at the place of delivery is clearly proved ; but evidence of value at a market three miles from the place of delivery, has been held to be ffopd; ^^C^r*^*^ e*-e*-jj^j2^ <^ii2e^, ^ "^ 7. DAMAGES AGAIfTST COMMON CARRIERS AND FACTORS. The measure of damages for the non-delivery of goods pur- suant to a contract of transportation, is the value of the goods at the place of destination at the time when they should have been delivered.* This is the measure of damages against common carriers.' Interest is not recoverable as a matter of law. It is, however, in the discretion of the jury to give or withhold it, according to circumstanced; but generally, it ought not to be allowed, unless there has been fraud, or gross misconduct." Where goods are consigned to a factor for sale, with specific instructions as to the price, he has no right to sell below the price named, to cover his advances, without calling on his principal for re-payment. But, where he sells below the price named in the instructions, the measure of damages, in an action brought by.the principal on account of the wrong- ful sale, is only the amount of injury actually sustained. It is, therefore, competent for the factor, in such a case, to show, in reduction of the damages, that the goods, at the time of the sale, and down to the time of the trial, were worth no 1 7 Cowcn, 681 ; 9 "Wendell, 129 ; 24 Id. 822 ; < 8 Johnson, 213 ; li. id. 27a ; 15 Id. 24. 2 Sandford, 127. • 8 HIU, 888. i;<^ «^C *? 4^ O. " 24 'Wendell, 322. ' « 16 Johnson, 24 ; 6 Denio, 25. = 8id.485;7B^boux,18.5^ 4u/ ' ,) 7^ f' / V ,_ ^ .^-^^.^ Jh^ ^^ 452 NEW-TOEK JUSTICE. more than the price at which they were sold. If the factor sells below his instructions, although at the then market Talue, he takes the peril of a rise in the value of the goods at any time before the action is brought, and perhaps down to the time of trial. Where the consignment is of articles which have no market value, such as paintings, statues, or vases, the principal may insist upon the prices named in the instructions, without regard to the market.' OffArTER'^XV. .-►•5. , OF JUDGMENTS, DOCKETS, AND TEANSCRIPTS. 1. JUDGMENTS GENERALLY. /^V -^ '-" Judgments are of four sorts : 1. Where the facts are confessed by the parties, and the la# determined by the Court; as in case of judgment upon demurrer ; 2. Where the law is admitted by the parties, and the facts are disputed ; as in case of judgment upon a verdict ; 3. Where both the facts and the law arising thereon are admitted by the defendant ; which is the case of judgments by confession or default ; 4. Where the plaintiff is convinced, that facts, or law, or both, are insufficient to support his action, and l^ierefore abandons or withdraws his prosecution, which is the case in judgments upon nonsuits. The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the deter- mination and sentence of the law. It is the conclusion that naturally follows from the premises of law and fact. It is I8 0omsto61t,78. ^.Mf/ nC^ JUDGMENT BY CONFESSION. 453 the remedy prescribed by law for the redress of injuries, and the suit or action is the vehicle or means of administering it. Judgments are either interlocutory or final. Interlocutory judgments are such as are given in the middle of a cause, upon some plea, proceeding, or default, which is only inter- mediate, and does not finally determine or complete the suit. Final judgments are such as at once put an end to the action, by declaring, that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for.' The Code defines a judgment to be the final determination of the rights of the parties in the action." 2. JUDGMENT BY CONFESSION. A Justice of the Peace may enter a judgment, by confes- sion of the defendant, in any case where the debt or damages confessed do not exceed two hundred and fifty dollars, with such stay of execution as may be agreed on by the parties interested in such judgment.' No confession can be taken, or judgment rendered thereon, unless the following requisites be complied with ; 1. The defendant must personally appear before the Jus- tice; 2. The confession must be in writing, signed by the defend- ant, and filed with the Justice ; 3. If the judgment be confessed for a sum exceeding fifty dollars, the confession must be accompanied by the affidavit of the defendant and plaintiff, stating that such defendant is honestly and justly indebted to the plaintiff in the sum named in such affidavit, over and above all just demands which he has against him, and that such confession is not made or taken with a view to defraud any creditor.* Every judgment confessed without a compliance with the above provisions, is void as against all persons, except a pur- chaser in good faith of any goods or chattels, lands or tenements, under such judgment, and except the defendant making such confession." * Jacob's Law Dictionary, Judgnui'nt. * id. § 114. r / / i Ct- -t^'Z^ ~/^- A^^ 5Code,§245. •id.246,§m 4* /^-r' CC /U- U' ' » Code, § 68, Bubd. 8 ; 2 E. 8. M5, § 113. 454 NEW-TOEK JUSTICE. A judgment cannot legally he entered on confession, unless the defendant is brought in by summons, or voluntarily appears in Court, and confesses judgment ; and verbal au- thority given to the Justice at a casual meeting in the street is not sufficient to enter judgment.' A Justice cannot enter judgment against a party on his written request, without pro- cess, or further proof, and where the party does not appear in Court in person, even where the Justice has personal knowl- edge that such writing is in the hand- writing of the party.' Nor can a Justice in any case take a judgment by confession from a party, unless on his appearance ia Court, either in person or by attorney, even though the party authorizes the Justice to enter judgment against him by a writing under seal, and hig signature is proved before the Justice by the subscribing witness.' Where a cause in a Justice's Court, having been adjourned, became discontinued by the non-appearance of the plaintiff at the adjourned day, and, more than a month afterwards, a person who had been authorized by the defendant to appear for him at the adjourned day and confess judgment, came before the Justice, and, without the knowledge of the de- fendant, confessed a judgment in favor of the plaintiff, as of the day to which the cause was adjourned, it was held that the judgment was void, and that the defendant might avail himself of the irregularity, in an action brought upon it." The parties to a demand exceeding the jurisdiction of the Justice, may divide it into several demands, so as to bring them within the jurisdiction of the Justice, and judgment may be confessed for each.' § 61. Confession of judgment. In Justice's Court. John Doe, ) against \ Confession of judgment for $40. Richard Eoe. ) In the presence of Allen Tliomas, Justice of the Peace, I do hereby confess judgment in favor of John Doe, for forty 18 Wondoll, 669. \ * id. 244. >fe Johnson, 126. » 7 Cowen, 810. » 18 id. 476. JUDGMENT APTEE A TEIAL. 455 dollars, on a demand arising on [state the nat/ure and pa/rticu- lars of the demand^ and consent that the said Justice enter the same against me accordingly. Dated, the day of , 1853. ElOHAKD KoE. "Where the confession is for a sum exceeding fifty dollars, the following aflidavit must be made, and annexed to the con- fession, and filed with the Justice : § 62. Affida/uit wliere the confession is for a sum exceeding fifty dolla/rs. County, ss: "We, John Doe and Richard Roe, the parties named in the foregoing \or, annexed] confession of judgment, being/dvily, sworn, se-s^^ally say, that the said Richard Roe isjustly in&elfted to the said John Doe, in the sum of forty doTTars, upon the demand named in said confes- sion, over and above all just demands which the said Richard Roe has against the said John Doe ; and that the said con- fession is not made or taken with a view to defraud any creditor. Sworn, &c., \a,s in § 12.] John Doe, RiCHABD Roe. 3. JUDGMENT OF NONSUIT. It is provided by statute,' that judgment of nonsuit, with costs, shall be rendered against a plaintiff prosecuting a suit before a Justice of the Peace, in the following cases : 1. If he discontinue or withdraw his action ; 2. If he fail to appear on the return of any process, within one hour after the same was returnable ; 3. If, after an adjournment, he fail to appear within one hour after the time to which the adjournment shall have been made ; 4. If he become nonsuited on the trial ; 5. If he shall not appear, on the coming in of the jury, to hear their verdict. 4. JUDGMENT AFTER A TRIAL. Judgment for the defendant, with costs, must be rendered whenever a trial has been had, and it be found by verdict, or > 2 E. S. 246, § 119. 456 NEW-TOEK JTTSTICE. by the decision of the Justice, that the plaintiff has no cause of action against the defendant.' If, upon the trial of the cause, or upon an expa/rte hearing, in those cases where it may be had on the defendant's failing to appear, a sum, in debt or damages, is found in favor of the plaintiff, judgment must be rendered against the defendant for such debt or damages, and the costs." If process has issued against two or more persons jointly indebted, and has been personally served upon either of the defendants, the defendant who has been served with process must answer to the plaintiff; and the judgment in such case, if rendered in favor of the plaintiff, must be against all the defendants, in the same manner as if all had been served with process ; but execution can issue only in the manner herein- after directed.' (See post, chwp. 17. Such judgment is conclusive evidence of the liability of the defendant who was personally served with process in the suit, or who appeared therein ; but against every other de- fendant, it is evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been est menced by attachment, when the defendant is not personally served with the attachment or summons, and does not appear, is only presumptive evidence of indebtedness, in any suit that may be brought thereon, and may be repelled by the de- fendant." "WTien a balance is found in favor of a party, either by the verdict of a jury, or upon a hearing before the Justice, ex- ceeding the sum for which the Justice is authorized to give judgment, such party may remit and release the excess, and may take judgment for the residue.' In cases where a plaintiff is nonsuited, or discontinues or withdraws his action, and where judgment is confessed, and in all cases where a verdict is rendered, or the defendant is in custody at the time of hearing the cause, the Justice must > 2 K. S. 246, § 120. < id. § 128 ; 2 Comstook, 113. aid. 24T, § 121. ' Laws of 1881, chap. 800, § 89. » la. § 122. « 2 E. 8. 24T, § 125 ; 8 Denio, 819. JUDGMENT AFTER A TRIAL. 457 fortliwith render judgment, and enter the same in his docke t. In all other cases, he must render judgment, and enter the same in his docket, within four days after the cause has been submitted to him for his final decision.' If the Justice, when the cause is tried before him, does not enter judgment in his docket within four days after the cause is finally submitted to him, his power is gone, and the cause is discontinued ; and a judgment rendered by him after the four days will be reversed for error." But, where a Justice decided a cause, and made a memorandum of the judgment upon the papers in the cause, within four days after its final submission to him, it was held that the judgment was regular, although no entry of it in his docket was made until after the expiration of four days.' Though a suit be tried on its merits, and submitted to the decision of a Justice, yet if he omits to render judgment, the proceeding will form no bar in a second action for the same cause.' On receiving the verdict of a jury, it is the duty of a Jus- tice forthwith to render judgment, and enter the same in his docket, and, as a part of the act of rendering judgment, he must tax and enter the prevailing party's costs ; and, where a Justice omitted to enter the costs for eight days, the judgment was reversed.' A Justice must enter judgment upon the verdict of a jury immediately upon its being rendered, and, if he omits to do so until the next day, no judgment can be given by him.' But where the Justice, after the jury had pronounced their ver- dict, rendered j udgment immediately, and noted it in his min- utes of the trial, but omitted to enter it upon his docket until two or three days after, the omission was not considered cause for reversing the judgment.' After the Justice has regularly entered his judgment, he has no authority to alter it, not even to correct an error of calculation in computing the amount of items which he in- tends to allow.' ' 2 E. S. 24T, § 124>WA Si J$A^.iiC. » 8 Denio, 72. ' 19 Wendell, STl ; 5 HiU, 60 ; T id. 508. "id. o t "l Ui i'^'^'f S" s 2 ComBtook, 134. ^ /^<;^ »^ K ' 6 Hill, 88. -^ ■' ' //. % ^ The Code, in its proyision, before quoted, as to filing and docketing transcripts, makes no direct provision, any more than the former statutes did, as to the duration of the lien of a Justice's judgment docketed in the county clerk's office. What then is the duration of such lien ? The Code pro- vides,' that an action upon a judgment of a/ny Court of any State within the United States, may be commenced within twenty years after the cause of action shall have accrued. The limitation of an action on a Justice's judgment is, there- fore, changed from six years to twenty years. (See First He- port of Commissioners on Practice and Pleading, pages 96 to 99.) If, therefore, according to the case of Young v. Eemer, before cited, the lien on real estate, of a Justice's judgment docketed in the county cjerk's office, endures as long as the right to maintain a suit upon the judgment endures, then, as that right is extended by the Code to twenty years, it would seem that the lien now existed for twenty years. But that would present the incongruity of a judgment rendered in a Court of Kecord existing as a lien on real estate, as against pur- chasers and subsequent incumbrances, for only ten years, and of a Justice's judgment, when docketed in the county clerk's office, existing as such lien for twenty years. It is to be no- ticed, however, that the section of the Code before cited, (§ 63,) says that, from the time of the entry in the docket in the office of a county clerk, of the transcript of a Justice's judgment, such judgment shall he a judgment of the County 1 Code, §§ 84, T9, 90. 460 NEW-TOBK JUSTICE. Court. This language would seem to have a different mean- ing and intent from the language of the former law on the subject, which was merely that the judgment, when docketed, should be a lien on real estate in the same manner and with the like effect as if it had been rendered in the County Court. It is also to be remarked in this connection, that the Code, when first enacted, in 1848, contained (§ 66,) a provision for the filing and docketing of a transcript in the county clerk's office, and then went on to say, that " from that time the judgment shall have the same effect as a lien, and be enforced in the same manner, as a judgment of a County Court ;" thus using very much the same language as the Kevi ed Statutes on the same subject. But in the Code as re-enacted in 1849, (§ 63,) the language was changed to what it is now : " shall ie a judg- ment of the County Court." If, accordin^to the present Code, the judgment now, after being docketed, is a judgment of the County Court, it would seem that it must in all respects^ and as to the ttTne of its enduring as a lien, as well as to its manner of operation and effect as a lien while so enduring, T)e a judg- ment of a County Court, as much as if rendered in that Court. If so, then its lien on real estate, as against purchasers and subsequent incumbrances, ceases when the lien of a judgment rendered in a County Court ceases, that is, from and after ten years from the time of docketing in the county clerk's office. (2 R. S. 359, §§ 3, 4.) These views are suggested, because the question is both new and important, and must remain in doubt until resolved by judicial authority. In the city and county of !N"ew-Tork, a judgment for twenty- five dollars or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, has the same effect as a lien, and is enforced in the same manner as, and is deemed a judgment of the Court of Common Pleas for the city and county of ISTew-York.' A Justice's transcript must correspond with the judgment, as respects the names and the number of the plaintiffs and de- fendants." In an action of ejectment to recover land, the title to 1 Code, § 88. . ° 1 Code Eeporter, 107. TBANSCEIPT OF JITDGMENT. 461 ■wtich is claimed under an execution issued on a Justice's judgment, a transcript of whicli has been filed in the county clerk's ofiBce, a certified copy from such office of such tran- script, is prima facie evidence of the rendition of such judg- ment.' And it is not necessary that the transcript should contain a copy of all the proceedings in the action as entered in the Justice's docket ; it is sufficient for it to show the ren- dition of the judgment by the Justice, the parties, the date, and the amount." A Justice may make and certify a transcript of a judgment after the expiration of his term of office.' Whenever a judgment is rendered by a Justice of the Peace on default, and in the absence of the party against whom the same is rendered, it is the duty of such Justice, on the demand of any person interested therein, to give to such person a transcript of such judgment, together with a copy of the process, pleadings and proofs in the cause, when such pleadings and proofs are reduced to writing, or the substance thereof when not reduced to writing, or such parts of such process, pleadings and proofs as may be required, on his being paid therefor twenty-five cents for such transcript, and six cents a folio for the residue thereof.* If a Justice refuses to give a transcript, he may be compelled to do so by process in the nature of a mandamus. '' Upon the filing and docketing of the judgment in the county clerk's office, the power and authority of the Justice in respect to such judgment cease, and he cannot issue an execution upon it.° § 64. Transcript of Judgment. County, Town of In Justice's Court, C. D., plaintifl", \ against > Before G. H., Esq. A. B., defendant. ) Judgment rendered for the plaintiff, against the defendant, January 14th, 1853, for the sum of $28 02, and for costs, ' 9 Cowen, 182, 233 ; 6 Wendell, 218. ' 8 Cowen, 1S3. « Id. • 2 E. B. 254, § 164; Code, § 64, suid. 18; 2 > 8 Wendell, 893. Cuytea, 506. * Laws of 1841, chap. 141. 462 HEW-TOEK JUSTICE. $1 90 ; in all, $29 92. Fee for transcript, to be added, 25 cents. County, 8?: I certify that the above is a true copy of a judgment ren- dered by and before me, and now remaining unsatisiied upon my docket. Dated the day of , 18 . G. H., Justice of the Peace. 6. REVIVAL OF JUDGMENT. By the Code, the writ of scire facias, by which a Justice's judgment was formerly revived, has been abolished,' and such judgment can now be revived only by an action to be brought within the time and subject to the regulations pro- vided by law. (See amte, pp. 143, 145.) A judgment, after it has been fully paid and satisfied, can- not be kept on foot to cover new demands of the plaintiff." Part payment discharges its lien to that extent, and no agree- ment between the parties can restore that lien, as against third persons.' 7. THE JUSTICE'S DOCKET AND PAPERS. By statute,* every Justice of the Peace is required to keep a book, in which he shall enter : 1. The titles of all causes commenced before him ; 2. The time when the first process was issued against the defendant, and the particular process issued ; 3. The time when the parties appeared before him, either without process, or upon return of process ; 4. Where the pleadings are made orally, a concise state- ment of the declaration of the plaintiff, the plea of the defendant, the further pleadings of the parties, if any, and the issue joined; 5. Every adjournment, stating on whose motion, and to what time and place ; 6. The issuing of a venire, stating at whose request, and the time and place of its return ; 7. The time when a trial was had, the names of the jurors J Code, §428. > 5 Cowen, 671 ; 1 Paige, 181. -^ ■^^ • ' » i Johnson's Oh. E. 228. < 2 K. 8. 268, § 24a THE JUSTICE S DOCKET AND PAPEES. 463 returned summoned who did not appear, and tlie fines im- posed on them, if any ; 8. The names of the jurors who appeared, and of the jurors who were sworn ; the names of the witnesses sworn at the request of either party, stating at whose request ; the objec- tion, if any, made to the competency of a witness, and the decision thereon ; 9. The verdict of the jury, and when received ; 10. The judgment rendered by the Justice, and tib.e time of rendering the same ; ^//;-'- '*- ' ''- '■''''"' r vf „i- - i/^ 11. The time of issuing execution, and the name of the oflBcer to whom delivered ; and if issued upon the application of any party, before the time when the same should regularly issue, such fact shall be noted, and the nature of the proof given ; 12. The return of every execution, and when made ; and every renewal of an execution made by him,- with the date of such renewal ; SU ^ ^J^^^ct^ff^^ ^i-*-«^.^^ aj 13. The fact of his having given a transcript of the judg- ment, to be filed in the clerk's office, and the time when the same was given. ^ 14. The fact of a certiorari having been brought on any j udg- ment rendered by him, and the time of ^ the service of the same. 15. The fact of an appeal having been made from any judg- ment rendered by him, and the time when made. The several items thus enumerated, must be entered under the title of each cause to which they respectively relate ; and, in addition thereto, the Justice may enter any other proceed- ing had before him in such cause, which he shall think it useful to enter in such book." +" ^^.^ Io,4 ■'''' f 't- t^Hu.* ,^^.cU; .x-rW^ Cu--^^-^ ^jry««.-' /J.iV !/■< ■? 'Hv '/ §63. Entry in Justice! s Docket. In Justice's Court. Slocum Howland, ) 1853, Jan'y 10. Summons issued, re- against > turnable the 20th inst. at 1 o'clock, P. M., John James. ) at my office. January 12. Summons returned personally served, by Ste- phen Austin, constable, on the 10th inst. Fees 25 cts. 12E. S.269, §244. 464 HEW-TOEK JUSTICE. Jan'y 20. The plaintiff appeared in person, and tlie de- fendant by James R. Cox, his attorney, who produced a written authority. Plaintiff complained on a promissory note executed by the defendant to him, and dated July 4, 1852, for $50, payable three months from date with interest, and also for one barrel of flour and ten bushels of wheat sold to the defendant, and claimed damages to the amount of sixty- five dollars. The defendant answered, admitting the execu- tion of ihe note, and denying the delivery of the flour and wheat, and claimed a set-off of $25, for money lent to the plaintiff, and also for work and labor performed for the plain- tiff. On motion of the plaintiff, the action was adjourned to Jan'y 26th inst., at 2 P. M., at my ofiice. A veni/re was issued at the defendant's request, returnable at the same time and place. Jan'y 26. The parties appeared at 2 P. M., and proceeded to the trial of the cause. The following jurors were returned as summoned upon the veni/re by Stephen Austin, constable. [^Insert their names.] The following jurors who were returned as summoned did not appear : [Insert their names.l The following jurors appeared : [Insert their names.'] The fol- lowing jurors were sworn to try the action : [I-nsert their names.] John Smith and James Brown were sworn as wit- nesses at the request of the plaintiff, and William B. Wood and Benjamin Ashby, at the request of the defendant. John Doe was offered as a witness on the part of the plaintiff, and objected to by the defendant as a person for whose imme- diate benefit the action was prosecuted, and was rejected. After hearing the testimony, the j\iry retired under charge of Stephen Austin, a constable, dnlj sworn for that purpose, and afterwards returned into Court, and the plaintiff' having answered to his name when called, the jury found a verdict for the plaintiff for $25 damages, which was received Janu- ary 26th, 1853. Whereupon I immediately, and on the 26th of January, 1853, rendered judgment for the plaintiff for $25 damages, and $2,62^ costs, in all $27,62^. Jan'y 26. Execution issued to Stephen Austin, constable. March 28. Execution returned satisfied. In giving a certified copy of his docket, the Justice must certify the copy as follows : County, ) gg Town of j I certify that the foregoing is a copy of the entries in my docket in the action in which such entries are entitled, that I have compared said copy with such original entries, and that the same is a correct transcript therefrom and of the whole of ^ such original. . , G. H., Justice of the Peace. ^ -^^^"^ THE JUSTICES DOCKET AKD PAPEES. 465 "Whenever it becomes necessary, in an action before a Jus- tice of the Peace, to give evidence of a judgment or other proceeding had before him, the docket of such judgment or other proceeding, or a transcript thereof certified by him, is good evidence thereof, before such Justice.' A transcript from the docket of any Justice, of any judg- ment had before him, of the proceedings in the cause pre- vious to siich judgment, of the execution issued thereon, if any, and of the return to such execution, if any, when subscribed by such Justice, and verified as hereafter pre- scribed, is evidence to prove the facts stated in such trans- cript.' To entitle such transcript to be read in evidence, except before the same Justice, there must be attached thereto, or endorsed thereon, a certificate of the clerk of the County, in which such Justice resides, under the seal of the county Court of such county, specifying that the person subscribing such transcript was, at the date of the judgment therein, mentioned, a Justice of the Peace of such county.' The Justice, in giving a certified copy or transcript to be used as evidence, should be particular in following the statute as to the form of his certificate. Tlie statute provides, that whenever a certified copy of any afiidavit, record, document, or other paper, is declared by law to be evidence, such copy shall be certified by the officer in whose custody the same is required by law to be, to have been compared by him with the original, and to be a correct transcript therefrom and of the whole of such original.* The docket of the Justice, or the transcript from the docket, of the proceedings in a suit in which the Justice acquired jurisdiction of the cause and of the person, is conclusive evi- dence of the facts therein stated, and cannot, in a suit upon a judgment rendered by the Justice, be contradicted by parol evidence.' But the certificate must show on its face that the Justice had jurisdiction of the person of the party, as well as of the subject matter of the suit;" and if it does, the judg- I 2E. S. 269, §245. *id. 403, §59. "ii.iiU./ &et^ /''' '6 Barbour, 621. ' la. 2T0,§ 24T. • 6 Wendell, 292. 466 HEW-TOEK JUSHCE. ment cannot be impeached collaterally.' In an action for selling property by virtue of an execution on a Justice's judgment, such a certificate is evidence, as well for the Jus- tice, as for the plaintiff in the execution ; and the certificate may be granted after the expiration of the Justice's term of oflfice." Parol evidence is inadmissible to contradict the certificate of the Justice as to proceedings before him." Nor is the evi- dence of the Justice admissible to explain his docket, by showing that a judgment of nonsuit entered by him should have been a judgment for the defendant upon the merits.* !N"or can an ambiguity as to the nature of the pleadings be explained by the testimony of the Justice, if the pleadings were in writing, and are not produced or accounted for.' To prove the judgment of a Justice, in an action before himself, the mere production of the original docket contain- ing the proper entries, is enough iper se; the certificate is necessary only when a transcript is relied on.' The proceedings in any cause, had before a Justice, may also be proved by the oath of the Justice. In case of his death or absence, they may be proved by producing the original minutes of such proceedings, entered in a book kept by such Justice, accompanied by proof of his hand-writing ; or they may be proved by producing copies of such minutes, sworn to by a competent witness as having been compared by him with the original entries, with proof that such entries were in the hand- writing of the Justice.' The Justice before whom a suit was commenced may, on /the production of the written pleadings put in before him in such suit, prove their identity, without producing his docket er a transcript of it." But, under the provision of the statute above cited, that the proceedings in any cause, had before a Justice, may be proved by the oath of the Justice, no more is .meant than that the docket may be proved by the Justice, by the production of the docket verified by the oath of the > 8 ComBtook, 881. • 18 Johnson, 184 > 8 Wendell, 398. 'B Hill, 481. ^ ^~ ^ > 18 Johnson, 184 ' 2 E. S. 270, § 248. '<'«5 /Sa-O^/^S,, ■ < 7 Wend«Il,,108. ' 16 Wendell, 287. THE justice's DOCKET AUD PAPEES. 467 Justice, and not that the Justice may give parol evidence of the contents of the docket.' Every Justice must carefully file and preserve all affidavits and papers delivered to him to be filed in any cause." Every Justice must keep an alphabetical index of all judg- ments entered in his docket-book, in the course of any judi- cial proceedings had before him. In such index must be inserted the names of the . parties to each judgment, and the page of his docket book where such judgment is entered.' In case any Justice removes out of the town in which he was elected, before or after his term of office expires, he must deposit with the town clerk of such town, all the books and papers in the custody of such Justice, relating to any cause or matter which shall have been heard by him, or relating to any proceeding or cause which shall have been commenced before him.* His neglect to do so, will not, however, operate to the prejudice of a party, or prevent the docket from being received in evidence.' Whenever any Justice is removed from office by the Supreme Court,' he must, within ten days after receiving notice of such removal, and upon the demand of the town clerk, deliver to such clerk all the books and papers in the custody of such Justice, relating to any cause or matter which shall have been heard by him, or relating to any proceeding or cause which shall have been commenced before him.' In every book of minutes delivered by any Justice to the town clerk, pursuant to the foregoing provisions, in which he has kept the docket of any judgments, he must enter a certi- ficate, to be subscribed by him, stating that the judgments entered in such book were duly rendered as therein stated, and that the amounts appearing by such book to be due on such judgments respectively, have not been paid to his knowl- edge." In case any Justice dies, or his office in any way becomes vacant, and any books or papers belonging to such Justice in his official capacity, come to the hands of any person, the , — -s ' 10 'Wendell, 525. » 6 Barbonr, B88. -' '' " '' ''•^'' «2E.8. 2T0, §250. 'Ante, p. 11. Md.§261. '2E. B.2T0, §258. Md, §252. « id. §254. 468 NBW-TOEK JUSTICE. town clerk may demand and receive such books and papers from the person having the same in his possession.' If any books and papers are withheld by any person, he may be com- pelled to deliver them.' (See 1 B. S. 124.) The entries contained in the book of minutes kept by any Justice, and by him delivered to the clerk, are, in all cases, presumptive evidence of the facts stated in such entries, but may be repelled by contrary proof If, in any action upon the judgment of a Justice, it be es- tablished that the docket of a Justice has been lost or de- stroyed, or that it cannot be produced, after reasonable efforts to obtain the same, other proof of the fact of a judgment hav- ing been rendered may be given, and may be repelled as other facts.' CHAPTER XYI. or COSTS AND FEES IN CIVIL PEOCEEDINGS. 1. COSTS. Whenever a judgment is rendered by a Justice against any party, it must, unless otherwise expressly provided, be with the costs of the suit. But the whole amount of all the items of such costs, except charges for the attendance of witnesses from another county, canngt, in any case, exceed five dollars,' unless a commission has been issued for either party, in which case certain fees and disbursements are allowable, in addition to the other costs, although the whole may exceed five dol- lars." ^/■•. a\. -..:!).''': I 2 E. S. 2T1, § 285. ♦ Id. 2T2, § 26T. J Id. § 266. • W- 24T, § t26. 9 Id I 26T. ' '^"^^ of 1841, chap. 188, § & COSTS. 469 In all actions, where a debt or damages are recovered, costs are given, of course, to the prevailing party.' But costs in- curred on the part of the losing party, cannot be included in the judgment f and if the costs of an adjournment on motion of the defendant be included in the plaintiff's judgment, it will be error.' " The costs of a venire always abide the event of the suit, whichever party may call for the venire, and should be inclu- ded in the judgment.* If judgment be rendered by any Justice, for a greater amount of costs than is allowed by law, or for any item of costs or fees, improperly, and the same be collected, the per- son paying the same may, notwithstanding such judgment, recover of the party who shall have received such costs or fees, the amount thereof, with interest." Where any action is brought in the name of another, by an assignee of any right of action, or by any person beneficially interested in the recovery in such action, such assignee or person is liable for costs in the same cases and to the same extent in which a plaintiff would be liable." In proceedings by attachment to enforce or protect the civil rights and remedies of parties, or for the non-payment of any sum of money, costs must be awarded, to be paid by the offend- ing party.' In the Marine Court of the city of New-Tork, a plaintiff who does not recover more than fifty dollars, except in ma- rine causes, recovers no costs, but the defendant has costs.' What are called double and treble costs are allowed by statute in some cases. In the following actions, if judgment be rendered for the defendant, upon verdict, demurrer, nonsuit, non pros, discon- tinuance of the plaintiff, or otherwise, in any action, certior.iJ^/'fi''/(/fii For a summons, itino cents; when judgment is rendered against the defendant, no more than two summonses and the service of two summonses can be included in the costs of such judgment;" ^^ F,or a warrant, tw-elye-^4- a hoM cents ; ~ ^— For an attaehm«nt^er' execution, nineteen cents ; 'fe^i.tt-^.'-uj - For every adjournment, except such as shall be made by the Justice, without. ^he motion of either party, nin^-oeate ; ?^~. For s^subpoena, -Sfficents ; For administering any oath, «Ms.cents ; For filing every paper required to be filed with him, thYoc cents ; (but no fee is allowed for filing any written complaint, answer, or pleading, or any process issued in any cause ; } For a venire^ nineteen cents ; 1 2 E. 8. 620, § 3. Md. § 6. a Id. § 4. ' W- 264, § 228. Md. §6. 'LawsoflSSl, chap.300, §42. FEES. 473 For swearing a jury, -t w o lv o and -a batf cents; C'^^J r-' rd o For entering a judgment, twenty-five cents ; For a transcript of a judgment, twenty-five cents ; For every bond, or otlier written security, directed to be taken, if drafted by tbe Justice, twenty-five cents ; For making a return upon an appeal, two dollars ; ' For every order for a commission to examine witnesses, attending, settling and certifying interrogatories to be annex- ed to a commission, fifty cents ;" /''^ " '-^ "^(^^^^^wfe^ cf^<^ For postage for sending and returning a commission with testimony, not to exceed one dollar ; ' Taking the acknowledgment of any written authority to ap- pear by attorney in a Justice's Court, twenty-five cents ; ' For a transcript of the judgment, together with a copy of the process, pleadings and proofs, when siich pleadings and proofs are reduced to writing, or the substance thereof when not reduced to writing, in any action wherein judgment was rendered on default, and in the absence of the party against whom the same was rendered, when required by any person interested therein, twenty-five cents for such transcript, and six cents a folio for the residue thereof." An execution upon any conviction before him, nineteen cents'" ^2j-f-t,-''''i^ <^uUy a-t^^J-u^t^ Z-iS~c/t A warrant of commitment for any cause, nineteen cents.' To Witnesses. From the same county, subpoenaed and attending, twelve and an half cents, and from any other place than the same county, twenty -five cents for every day's actual attendance ; For attending before a Commissioner on a commission issued by a Justice of the Peace, the same fees as for attending in a Justice's Court.* To Constables. For serving a warrant or summons, twelve and a half cents ; For a copy of every summons delivered on request, or left 1 Code, § 371. » LawB of 1841, chap. 141. » Laws of 1841, chap. 138, § 8. « 2 E. 8. 687, § 29. ' id. ' id. * Laws of 1831, chap. 287, § 2. e Laws of 1841, chap. 188, § 8. 474: NBW-TOEK JUSTICE. at the dwelling of the defendant in his absence, nine cents ; For serving an attachment, fifty-cents ; for a copy thereof, and of the inventory of the property seized, left at the last residence of the defendant, fifty cents ; For serving an execution, five cents for every dollar collect- ed to the amount of fifty dollars, and two and a half cents for every dollar collected over fifty dollars ; For every mile, going only, more than one mile, when serv- ing a summons, warrant, attachment, or execution, six cents; to be computed from the place of abode of the defendant, or where he shall be found, to the place where the precept is re- turnable ; For notifying a plaintiff of the service of a warrant, twelve and a half cents; and for going to the plaintiff's residence, or where such notice was served, six cents for every mile more than one ; Summoning a jury, fifty cents ; For serving a subpoena, twelve and a half cents for each witness served ; but no allowance can be made in any judg- ment, for service upon more than four witnesses, in any cause. For serving a subpoena for witnesses to attend before com- missioners on a commission issued by a Justice of the Peace, the same fees as are allowed by law in Justices' Courts ;' In the city of Albany, for serving a summons on one de- fendant, and notifying the plaintiff of trial, thirty-seven and a half cents ; and twenty-five cents more for service of sum- mons on every other defendant named in the same summons ; for serving a warrant in a civil suit in the said city on one defendant, and notifying plaintiff of trial, fifty cents ; and if on more than one defendant named in the same warrant, thirty- seven and a half cents for every other such defendant." To Jurors. For attending to serve as such, although not sworn, six cents each; For attending and trying a cause, twelve and a half cents each. « Laws of 1841, ohap. 188, §§ 2, 8. » Laws of 1836, ohap. 487. FEES. 4:75 To Oorrmiissioners. To one or more commissioners, for taking and returning testimony, under a commission issued by a Justice of tlie Peace, one dollar ; ' For every subpoena or oath, six cents.' To any p&rson rendering the service. For serving a subpcena, twelve and a half cents for each witness served ; but no allowance can be made in any judg- ment, for service upon more than four witnesses, in any cause ;' For serving a subpoena for witnesses to attend before com- missioners on a commission issued by a Justice of the Peace, the same fees as are allowed by law in Justices' Courts.* The legal fees paid for certified copies of the depositions of witnesses filed in any clerk's office, and of any documents or papers recorded or filed in any public office, necessarily used on the trial of an action, or on the assessment of damages, are allowable as costs.' No judicial officer is allowed to demand or receive any fees or other compensation, for giving his advice in any matter or thing pending before such officer, or which he has reason to believe will be brought before him for decision, or for draft- ing or preparing any papers or other proceedings relating to any such matter or thing, except in those cases where fees are expressly given by law to such officer, for services performed by him.' ~Eo Justice, or other officer whatsoever, or other person to whom any fees or compensation are allowed by law for any service, can lawfully take or receive any other or greater fee or reward for such service, than such as is allowed by law.' A constable, or other ministerial officer, the fees for whose official services are prescribed by law, cannot maintain an action on a promise of extra compensation for extra services, 1 LawB of 1841, chap. 188, § 3. " 2 E. 8. 6S1, § 14. "id. 'Ijiws of 1880, chap. 820, §83. » 2 E. S. 240, § 82. '2 E. S. 650, § 6. * Laws of 1841, chap. 138, §§ 2, 3. 476 NEW-TOEK JnSTIOB. althougli services beyond what could legally be required are rendered by tbe officer.' No fee or compensation allowed by law, can be demanded or received by any officer or person, for any service, unless such service was actually rendered by Mm, except in the case of charges for prospective costs allow- ed by law. But this does not prevent any officer from de- manding any fee allowed for any service, of which he is enti- tled by law to require the payment, previous to rendering such service." A violation of either of the provisions of the statute just cited is a misdemeanor, and the person guilty thereof is liable to the party aggrieved for treble the damages sustained by him.' CHAPTER XVII. OF EXECUTIONS. After judgment has been rendered in favor of the party prevailing in an action, the next step in the progress of a suit is the issuing of an execution. An execution, in the usual legal sense of the word, is a ju- dicial writ, grounded on the judgment of the Court from which it issues ; and is supposed to be granted by the Court, at the request of the party at whose suit it is issued, to give him sat- isfaction on the judgment which he has obtained.* 1. ISSUING EXECUTIONS. An execution maybe issued on a judgment rendered in a Jus- tice's Court, at any time within five years after the rendition thereof, and must be returnable sixty days from the date of 1 15 Wendell, 44. Md. § T. a 2 K. B. 650, § 6. * Jacob's Law Dictionary, EsreaitUm. ISSTTING EXECUTIONS. 477 tlie same.' If returnable in less, it is void, and will not pro- tect an officer who acts under it.' All tlie provisions of the Eevised Statutes,' as to the time when execution may be issued, the oath necessary to obtain it in certain cases, and the time when returnable, have been su- perseded by the Code. In the case of a defendant against whose body, notwith- standing the provisions of the 30th section of the non-impris- ' onment act, [ante^p. 165,) an execution can be issued from a Justice's Court, the execution must be directed to some con- stable within the same county, and must command him to levy the debt or damages, and costs, of the goods and chattels of the person against whom it shall be issued, (excepting such goods and chattels as are by law exempted from execu- tion,) and to bring the money, at a certain time and place therein to be mentioned, before such Justice, to render to the party who recovered the same ; and, if the execution be issued "againgfa m'al'e^ person, it must'conmsaixd the fionsta»ble, that if no goods or chattels can be .found, or not sufficient to satisfy such execution, to take the body of the person against whom the execution is issued, and convey him to the common jail of the county, there to remain until such execution shall be satisfied and paid.* By the 30th section of the non-imprisonment act, it is pro- vided, that no execution issued on any judgment rendered by any Justice of the Peace, upon any demand arising upon con- tract, express or implied, orjipon any other judgment found- ed upon contract, whether issued by such Justice, or by the clerk of the county, shall contain a clause authorizing an ar- rest or imprisonment of the person against whom the same shall issue, unless it shall be proved by the affidavit of the person in whose favor such execution shall issue, or that of some other person, to the satisfaction of such clerk or Justice, either, 1. That such judgment was for the recovery of money collected by any public officer ; or, 2. For official misconduct or neglect of duty ; or, 3. For damages for misconduct or neg- lect in any professional employment.' 1 Code, § 64, subd. 12. ^ Cu_ J ^ /f ) // ♦ id. § 131. "5 Wendell, 2T6; 9 id. 838. / ' ' • Laws of 1331, cbap. 800, § 80. 8 2 E. 8. 249, §§132 to 186. 478 NEW-TOEK JUSTICE. No female can be arrested or imprisoned, upon any execu- tion issued from a Justice's Court.' Every judgment bears interest from the time of perfecting tbe same ;' and whenever a judgment is'rendered, and execu- tion is issued thereon, it is lawful to direct, upon such execu- tion, the collection of interest on the amount recovered, from the time of recovering the same until such amount be paid.' Every execution issued by a Justice must be dated on the day when it is actually issued.' It must be signed by him, and may be under seal or without seal.' It must be entirely filled up, and must have no blank either in the date, or other- wise, at the time of its delivery to an officer to be executed ; and, if issued and delivered to an officer to be executed, contrary to this provision, it is entirely void.' A Justice has no right to give a constable a general authority to fill up or alter any process, and any alteration or filling up, imless in the presence and by the direction of the Justice, rend^rs the process void.' ^jLj=-»^ ff^S^lfS^^Xy^.^^^^-^'^ Town of , ) County, j_ ®^ • To any Constable of said county, greeting : Whereas, judgment has been rendered before me, one of the Justices of the Peace of the said county, against A. B., defendant, in favor of C. D., plaintiff, for dollars and cents damages, and dollars costs : There- fore, the People of the State of New-York command you, to levy the amount of the said judgment, with interest from the day of , 1853, on which day judgment was per- fected, until received, of the goods and chattels of the said defendant, (excepting such goods and chattels as are by law exempted from execution,) and bring the money before me at my office in said town, sixty days from the date hereof, to render to the said plaintiff; and have you then and there this precept. \If the defendcmt is a male person, and may 'be ar- rested on the execution, add here : And if no goods or chattels can be found, or not sufficient to satisfy this execution, you are further commanded to take the body of the said A. B., and 1 2 E. S. 258, § 168. » Id. 26T, § 232. » Laws of 184i, chap. 824, § 1. • id. § 288. > Id. § 2. ''10 Johmon, iOfi ; 20 Id. 68. * 2 E. 8. 261, §144. ISSUmO EXECUTIONS. 479 convey him to the common jail of the said county, there to remain until this execution shall be satisfied and paid.] "Witness my hand, the day of , 18 . G. H., Justice of the Peace. The execution should be endorsed as follows : The constable will collect, by virtue of the within execu- tion, dollars and cents damages, and dollars costs, with interest from the day of 1853. G. H., Justice. A Justice has no power to amend an execution after it has been executed.' When a judgment is recovered against the board of super- visors, or the county superintendents of the poor, of any county, or against any town, or the supervisor, or the over- seers of the poor thereof, no execution can be awarded or issued upon such judgment, unless the same has been render- ed for the costs of a suit commenced by any of the said offi- cers in their individual names ; in which cases, such costs must be collected of the plaintiffs individually, and the amount thereof must be allowed to them in their account of official expenditures, by the board authorized to audit |uch accounts, if such suit appears to have been necessarily commenced in good faith." Under this provision it has been held, that town and county officers are not liable individually for the costs 5f a judgment rendered against them in suits commenced by them, although their individual names appear on the record, provided it also appears that they sued in their representative character for the benefit of their constituents, and not for their own benefit. And such exemption applies as well to suits for penalties, as to other matters, where it is the duty of the officers to sue.' In suits by and against loan-officers, commissioners of loans, town superintendents of common schools, commissioners of highways, trustees of school districts, and trustees of gospel and school lots, the debt, damages, or costs recovered against them, must be recovered in the same manner as against indi- > 5 Wendell, 276. » 19.Wendell, 60. •2RS.476, §10T. 4:80 NEW-TOEK JtJSTICE. viduals ; and the amount so collected must be allowed to tliem in their official accounts/ When a judgment is obtained against joint debtors," upon process which was not served upon all the defendants, execu- tion may be issued in form against all ; but the Justice must endorse thereon the names of such of the defendants, who did not appear in the suit, as were not served with process of warrant, summons or attachment." The endorsement may be made in this form : James Brown, one of the defendants within named, was not served with process, and did not appear in the suit. G. H., Justice. Such execution must not be served upon the persons of the defendants whose names are so endorsed thereon ; nor can it be levied on the sole property of any such defendant ; but it may be collected of the personal property of any such defend- ant, owned by him as a partner with the defendants ap- pearing or served with process, or with any of them.' Where any county is divided, any judgment recovered pre- vious to such division, or, after such division, upon any proceedings instituted previous thereto, before any Justice of the Peace, may be collected by execution to be issued to a constable of- the county where such judgment is rendered, who must execute the same in the same manner as if such di- vision had not been made.' When any recovery is had before a Justice of the Peace for a penalty or forfeiture incurred by violating any provision of the title of the Revised Statutes entitled " Of excise, and the regulation of taverns and groceries," or of the title rela- ting to fisheries, execution must issue thereon immediately, and the Justice must endorse upon such execution the cause for which such judgment was rendered ; and, in case no goods or chattels can be found to satify the execution, the constable having the same must commit such defendant to the jail of the county, and must deliver to the keeper thereof a certified M E. S. 4T6, § 108. « id. § 142. > Ante, p. 456. » Id. 5B6, § 86. « 3 E. S. 2B1, § 141. EENEWmO EXECUTIONS. 4:81 copy of the execution and endorsement ; by virtue of whicli such keeper must detain such defendant for a period not ex- ceeding sixty days, without allowing him the benefit of the liberties of such jail.' If an execution is returned unsatisfied, in whole or in part, a further execution, for the amount remaining due, may be issued.' An action can be maintained against a party who wrong- fully and wilfully sues out an execution on a judgment which he knows to be paid and satisfied, whereby the property of the defendant is taken and sold ; and, to support the action, it is not necessary to allege or prove actual malice.' 2. RENEWING EXECUTIONS. If any execution be not satisfied, it may from time to time be renewed by the Justice issuing the same, by an endorse- ment thereon to that efiect, signed by him, and dated when the same is made. If any part of such execution has been satisfied, the endorsement of renewal must express the sum due on the execution.* The same section of the statute pro- vides, that every such endorsement shall be deemed to renew the execution in full force, in all respects, for ninety days, if it issued on a judgment for more than twenty-five dollars, exclusive of costs, and for thirty days in all other cases, and no longer. As the original execution must, by the Code, be returnable sixty days from its date, it is probable that the efiect of the endorsement of renewal is now to renew the execution for sixty days. ■ > ' , , ^ ^ Before renewing an execution, the Justice should be cer- tain that the execution has not been satisfied. For this piir- pose, he may require the return of the constable as to that fact, or he may require him to answer under oath ; for, if the Jus- tice issues a second execution, or renews the first, when the judgment has been satisfied, he is a trespasser, and will not be excused on the ground of the false representation of the plain- tiff that the first was lost.' Unless the Justice signs the en- 1 2 E. S. 251, § 148. * 2 E. S. 251, § 145, » id. 252, § UT. J / r 1 ' 6 Wendell, 86T ; 2 Hill, 829. ' T Wendell, 301. ^ / //'<*^ ^-^-l-f 32 482 NEW-TOEK JUSTICE. dorsement of renewal, the constable who executes the process will be a trespasser.' § 66. Renewal of Execution. The within execution is hereby renewed, \If necessa/ry, add : for the sura of dollars, with interest from this date.] Dated the day of , 18 . Gr. H., Justice. An execution may be renewed by a Justice while it re- mains unsatisiied, even though sufficient property to satisfy it has been levied on and is held under the levy, where there is not time enough remaining to advertise and sell during the life of the execution." And, where the property cannot be sold for want of bidders, the execution may be renewed on the last day it has to run, so as to retain its lien.' An execution may be renewed without a return of nulla hona endorsed, and the endorsement by the Justice of " exe- cution renewed," and signed by him, is a renewal, and is evi- dence that the officer had satisfied him that there were no goods on which he could levy.* So, also, it may be renewed, after it has run out, and from time to time, so long as the plaintiff chooses.' The provision of the statute requiring the renewal of the execution to express the sum due thereon, is merely directory, and, although something has been paid on the firat execution, the omission to express the amount due, will not render the plaintiff liable as a wrong-doer, if there be no attempt to col- lect more than is due." Any Justice before whom any judgment has been entered, and whose term of oflBce has expired, may issue or renew ex- ecutions on any such judgment, after the expiration of his office, at any time within two years from the time said judg- ment was rendered, subject, however, in other respects, to the provisions as to issuing executions on Justices' judgments.' > 12 Wonden, 145. • 1 'Wenaell, 651. 2 1 Denio, 574 ' 2 Hill, 829. 37 Barbour, 70. ' Laws of 1846, obap. 276. , « 12 Jobnson, 820. EXECUTIONS IN COUNTY COURT. 483 3. EXECUTIONS ON JUDGMENTS DOCKETED IN COUNTY COURT. The provisions of the Code/ authorizing a transcript of a judgment rendered by a Justice, to be filed in the county- clerk's office, have been cited." K the judgment be docketed ■with the county clerk, the execution must be issued by him to the sheriff of the county, and will have the same effect, and must be executed in the same manner, as other executions and judgments of the County Court, except that the judgment will be a lien on real property, only from the time of filing and docketing the transcript, and not then, if the judgment be for a less sum than twenty-five dollars, exclusive of costs.' Under the Justices' act, prior to the Revised Statutes, it was held, that the county clerk was authorized to renew an execu- tion issued by him, or to issue a further execution." A sale made under an execution issued by a county clerk on a tran- script of a Justice's judgment, has been held good, although made after the return day.' It does not fall within the scope of this work to consider at length the various topics connected with the issuing of an ex- ecution on a Justice's judgment docketed in the county clerk's office — the duty of the clerk in issuing the execution — the control of the County Court over it — its form — • the duty of the sheriff in executing it — his liability — his fees — the pro- ceedings to compel a return — the sale and redemption of real estate under it — the exemptions under it, including the homestead exemption — and the mode of discharging the judgment from the docket. It will be sufficient to refer to various statutory provisions, without citing them, bearing upon these various points : As to issuing executions by the county clerk. Code, § 64, subds. 12 and 13. As to the control of the County Court over such executions, 2 E. S. 254, §§ 164, 166. As to their form, 2 E. S. 254, § 167; Laws of 1831, chap. 300, § 30! As to the sheriff's fees, 2 E. S. 266, § 229. >.Code, § 63. < 4 Wendell, 586. » Ante, p. 4S8. '7 id. 888. » Code, § 63, and § 64, snbd. 13. 484 NHW-YOEK JU8TI0E. As to enforcing a return, 2 R. S. 254, § 168. As to the sale and redemption of real estate, 3 K. S. 368, 869, 370, §§ 34 to 44; id. 370 to 374, §§ 45 to 67 ; Laws of 1836, chap. 525 ; Laws of 1847, chap. 410 ; Laws of 1835, chap. 189 ; Laws of 1837, chap. 462. As to the exemption of burying grounds. Laws of 1847, chap. 85. As to the homestead exemption, Laws of 1850, chap. 260. As to discharging judgments of record, 2 E. S. 362, 363, §§ 23 to 27 ; Laws of 1834, chap. 262. 4. LEVY AND SALE. On receiving an execution, it is the duty of the constable to endorse thereon the year, month, day, and hour of the day, when he received it,' and then to levy upon any property of the defendant liable to be taken. To constitute a levy, the property must be taken into the actual or constructive possession of the constable. For the purpose of taking actual possession of goods, they should be within his view, and subject to his disposition and control. It is not necessary that he should remove them, or leave an assistant in possession of them ; they may be left with the defendant at the risk of the plaintiff, or ..gf the officer, or secu- rity for their delivery at some future day mSj be taken.^ An actual touching of the goods is not necessaiy, but merely such a course of action as, in effect, is calculated to reduce them to the dominion of the law. They are then considered as in the custody of the law. The great point is, that the debtor and the officer should understand that a levy has been made, and that it should be made in an open and public manner. The seizure of the property works, however, no change of interest, beyond vesting a special property in the officer. The general property still remains in the debtor, and he is not absolutely divested of it until a sale.' The constable must make an actual levy on the goods. Merely seizing a few articles outside of a store, or warehouse, and proclaiming a levy on the goods locked up in the store, and 12E.S.864, §10. 648; 14 id. 123; 19id.495; 2 Hill, 6G6. fe il ^"^ J a 16 "johnson, 268; 8 Wendell, 446; 11 \i.f*f\^ 28 WendeU,490. LEVY AND SALE. 486 not within view, is not a levy ; but tlie constable sbould break open the store, actually take the goods, and make an invento- ry of them." An oflScer may break open a warehouse, store or barn, not annexed to a dwelling-house, to make a levy.' But he cannot break open a dwelling-house. If he even lifts the latch and opens the outer door, against the owner's known will, though in his absence, and enters and levies tipon goods, it is a forci- ble and unlawful breaking and entering, and even a stranger, by the owner's directions, may dispossess him, and expel him from the house.' Where an officer, at the time of levying upon property, did not see the property, nor know where it was, but sat on his horse in the road, while the defendant in the execution named over to him what property he had, and the officer made a memorandum of it on a piece of paper, it was held, that the levy, although sufficient as against the judgment debtor, was not an actual levy, so as to affect persons acquiring a title sub- sequently derived from the judgment debtor." A constable, after taking goods and chattels into his custo- dy by virtue of an execution, must endorse thereon the time of levying the same.' '■"'^'f'"/ '■''"' '' § 67. Endorsement of Levy on an Execution. January 10, 1853. The within execution levied on two cows, the property of the defendant. H. C, Constable. § 68. Endorsement on Execution, where Inventory is attached. January 10, 1853. The within execution levied on the goods and chattels of the defendant, mentioned in the annexed inventory. H. C, Constable. § 69. Inventory to ie attached to' Execution. An inventory of goods and chattels this day levied upon, and taken into my custody, by virtue of the annexed execu- tion, viz : > 16 Johnson, 28T. ' 9 Barbonr, 620. Md. ^ .■ , » 2 E. 8. 252, §148. MHm,886; 4id. 43T. ^•^'- 486 NEW-TOEK JUSTICE. Two COWS, One lumber wagon, Fifty bushels of oats, One bedstead, &c., &c. Dated the day of , 18 . H. C, Constable. A constable, after making a levy under an execution, may deliver the goods to a third person, on his giving a receipt to return them, or pay the amount of the execution ; and, in such case, the officer cannot afterwards take other goods of the de- fendant on the same execution, if the goods he first took were enough to satisfy it.' ^^ ^ 9. ficJL-^J- ^f^lL § 70. Iteceipt of Goods taken on Execution. justice's Court, A. B. I against > 6. D. j Execution issued by G. H., Esq., one of the Justices of the Peace of the county of , for $26 02 Constable's fees for collecting, 2 25 Amount, $28 27 By virtue of the above described execution, H. C, one of the constables of said county of , has levied upon the following goods and chattels, the property of the said C. D., viz : [enumerate the articles ta]cen.~\ July 10, 1847. Received of H. C, constable, as aforesaid, the goods and chattels above mentioned, which, in consideration of the premises, and of one dollar to me in hand paid, I prom- ise to deliver to him, at any time when he shall demand the same, at the dwelling-house of the above defendant, C. D., in the town of , in the said county ; or, in default thereof, I do hereby agree with the said H. C., to pay him the amount of the judgment above described, together with the fees for the collection thereof, as above specified. E. F. [l. s.] o't levy upon ot r" "" A constable cannot levy upon ot sell any property, or im- prison a defendant upon any execution, after the time limited therein for its return, unless such execution has been renewed. Nor can any constable do any act under a renewed executior 1 12 Johnson, 20T ; 23 'WcndeU, 606. LEVY AKD SALE. 487 after the expiration of the time or times for wliicli tlie same may have been renewed.' Any constable to whom any execution has been issued and delivered, and whose term of office expii-es before the time within which the collection or return of such execution is re- quired bylaw, must and may proceed in all matters relative to said execution, in the same manner as if the term of office of such constable had not expired." Such constable and his bail are liable for any neglect of duty, and for moneys collected upon such execution, in the same manner and to the same extent as if the term of office of such constable had not expired." It was formerly held, that a levy extinguished or satisfied the judgment in all cases, but such is not now the law. In the case of Greene v. Burke^ Mr. Justice Cowen reviewed the former decisions as to what constitutes a levy, and its efl[ect as to the ofiBcer, the parties, and third persons, and held that a levy is not an absolute extinguishment, though it may op- erate as an extinguishment ; that it must be fairly tried, but that if it fails, in whole or in part, without any fault of the plaintiff, he may go to his farther execution ; and that the plaintiff may, by tampering with the levy himself, lose his debt, as, if he should release from a levy property sufficient to pay his debt. In a more recent case. The People v. Hopson," Chief Justice Bronson holds the following language : " Until an execution has been satisfied, it may be renewed by the Justice. It is said that the levy upon sufficient personal property to pay the debt was a satisfaction of the judgment ; and consequently that the renewal was void. We have re- peatedly held that such a levy does not always satisfy the judgment. And if the broad ground has not yet been taken, it is time it should be asserted, that a mere levy upon suffi- cient personal property, without anything more, never amounts to a satisfaction of the judgment. So long as the property remains in legal custody, the other remedies of the creditor will be suspended. But, without something more > 2 E. a 253, § 161. « 28 Wendell, 490. ' id. 2T4, § 285 ; Laws of 1880, chap. 820, § ST. • 1 Denio, 674. ^ » id.; 2 E. 8. 274, § 286. 488 NEW-TOEK JUSTICE. than a mere levy, the judgment is not extinguished. There is no foundation in reason for a different rule. The mere levy neither gives anything to the creditor, nor takes anything from the debtor. It often happens that the levy is overreach- ed by some other lien, is abandoned for the benefit of the debtor, or defeated by his misconduct. In such cases, there is no color for saying that the judgment is gone ; and yet they are included in the notion that a levy satisfies the debt. The true rule I take to be this ; the judgment is satisfied when the execution has been so used as to change the title, or in some other way deprive the debtor of his property. This includes the case of a levy and a sale ; and also the case of a loss or destruction of the goods after they have been taken out of the debtor's possession by virtue of the process. When the prop- erty is lost to the debtor in consequence of the legal meas- ures which the creditol* has pursued, the debt is gone, al- though the creditor may not have been paid. He must take his remedy against the oflicer, if he has been in fault ; and, if there be no such remedy, the creditor must bear the loss. But, until the debt is paid, or the debtor has lost his property in consequence of the levy, the judgment remains in force." In a still later case. Peck v. Tiffany^ decided by the Court of Appeals, it was held, that where a sheriff levies an execu- tion upon sufficient property to satisfy it, and, through his negligence or misconduct, the property is lost, destroyed, or disposed of, so that the defendant is deprived of the benefit thereof, it is a satisfaction of the debt, and tlie plaintiff must seek his satisfaction against the officer ; but that, when the debtor has neither paid the debt nor been deprived of his property, a levy is not a satisfaction. A constable's levy under an execution enures also as a levy upon other executions which afterwards come to his hands ; and the rule is the same, although, at the time the junior ex- ecution is received, the senior one has become dormant by reasomo^ instryctoMis.ib^delay." '^ ^--*->y «- y^ t^ O'.-t,'^ ' K l^y unOCTan execution remains good against the debtor, although the process may become dormant as to junior exe- Comstock, 451. ' M. LEVY AND SALE. 489 eutions ; and the officer has, by virtue of such levy, the custo- dy and control of the property/ If a constable levy on an execution, and make the amount by a sale, and a third person, as owner of the goods, recover against him an equal sum, the judgment is wholly unsatisfied, and may be enforced by issuing a new execution." So, too, if the defendant defeats the effect of a levy and sale, by suing the plaintiff as a trespasser, and recovering the value of the , property, the judgment — •— ' /KI'«^.»HA.^.:.Vn^yi^^^^ A constable should not levy upc than are necessary to satisfy the execution ; and while he may take what will be ample to satisfy the execution, he would not be justified in taking an unreasonable amount, or in selecting, particular articles, to annoy the defendant, or to put him to unnecessary inconvenience." An action may be maintained against an officer for an excessive levy wantonly made.' On seizang goods by virtue of an execution, the officer acquires a special property, that entitles him to maintain an action for a subsequent-wrongful conversion of them." A constable, after taking goods and chattels into his cus- tody, by virtue of an execution, and after endorsing thereon the time of levying the same, must immediately give public notice, by advertisement, signed by himself, and put up at three public places in the city or town where such goods and chattels are taken, of the time and place, within such city or town, when and where they will be exposed to sale. Such notice must describe the goods and chattels taken, and must be put up at least five days before the time appointed for the sale.' The term goods and chattels, means personal and movable goods, such as may be taken into custody, and not such as are immovable and partake of the freehold. § 71. Constable's Advertisement of Sale. By virtue of an execution, [or, of several executions,] I have seized and taken one lumber wagon and one set of 1 2 Comstook, 451. ^ "3 HUl, 215. 3 19 Wendell, 80 j 21 id. 264y'/ ^Oii- ^5'/' id- » 4 Denio, 165. ' 2 E. 8. 252, § 148. ■• T Wendell 286. 490 NEW-YOEK JtrSTICE. doulDle harness, tlie property of C. D., which I shall expose to sale at public vendue, to the highest bidder, on the day of instant, [or, next,] at o'clock in the noon, at the house of E. P., in the town of Dated, January 1st, 1853. H. 0., Constable. A constable may sell everything which is raised annually by labor and cultivation, as corn or wheat growing ;' and, though grass, fruit, and trees growing, are, in general, parcel of the realty,' yet, where growing grass is owned by one who does not also own the land, it is personal property, and may be taken on execution." Any property which a tenant has a right to remove from the premises, may be levied on.* Such articles as are properly fixtures, ° and form a part of the realty, cannot be taken on execution ; but when they have been severed, they become personal property, and may be taken.' A stove not affixed, and communicating with a chimney, by its pipe, which is attached only by temporary fastenings, is not a fixture, though the house has no fire-place.' A bark-mill, a cider-mill and press, and machinery not per- manently attached to the freehold, may be levied on.' Where a farm is let for agricultural purposes, there being no stipulation or custom to the contrary, the manure made on the farm belongs to it, and not to the tenant ; and that, whether it be in heaps or in the barn-yard." Fences are a part of the freehold, and the accidental or temporary detach- ment of the rails, without any intent of the owner to divert them from their use as a part of the fence, does not change their nature ; and neither fences nor rails can be taken on an execution against the tenant." Growing trees, when sold by a valid sale in writing by the owner of the fee in the land, are severed from the land, in contemplation of law, and, even before an actual severance, become personal chattels." Upon executions against the property of a defendant, a constable must levy upon any current gold or silver coin 1 2 Johnson, 418. ' 24 id. 191. 5 1 Barbour, 642 _ » 20 id. 686 ; 6 Johnson, B ; 20 id. ! ' 1 Denio, 630. / (^ /' ' H- '■'/.' "15 Wendell, 169 ; 2 Hill, 142. <9 Johnson, 108. ".id. 'Ante, p. 119. ,. " 2 Barbour, CIS. « 8 Wendell, 68T. / ^ a , ,. -^ ■', LETT Airo SALE. 491 belonging to sucli defendant, and must pay and return the same as so much money collected, -without exposing the same for sale at auction/ And, upon such executions, he may levy upon and sell any bills or other evidences of debt, issued by any moneyed corporation, or by the government of the United States, and circulated as money, which belong to the defendant in such execution." A promissory note cannot bg levied,upon.^^K^^iS^^2 8 Johnson, 183; 10 id. 98; 8 Cowen, 65; T '15 Johnson, 14T. Wendell, 236. 494: KEW-TOEK JT7STICE. condition of this obligation is sucli, that if the above bonnden A. B. shall, at all times, and forever hereafter, keep the said H. C. harmless and indemnified, of, from and against all damages, costs, charges, trouble and expense, of what nature soever, which he may be put to, sustain, or suffer, by reason of such levy and sale, or either, then this obligation to be void ; else, of force. Sealed and delivered ) A. B. [l. s.J in presence of / , I , ' . E. F. [l. s.] ^ "^ the tinfeand place appointed in the advertisement of sale, if the goods and chattels be present, and be pointed out to the inspection and examination of the bidders, the constable must expose them to sale at vendue to the highest bidder." The property must be pointed out to the bidders, and be spe- cifically designated. It must not be left to any future act to ascertain what property is sold. Accordingly, where a con- stable levied upon 13 sheep generally, and, on the day of sale, the sheep of the defendant in the execution, numbering 21 or 22, being present, the constable offered for sale 13 of the sheep, without designating which, and, on being asked by a bidder, which sheep he sold, replied, tlie iest, the fattest, it was held, that the constable had no right to sell in such a manner as to authorize the purchaser to select out 13 sheep from the flock, and that the purchaser acquired no title to the sheep thus selected by him." If only a part of the property sold is present at the sale, and open to the inspection of bid- ders, the sale as to that part of it is good, but void as to that which is not present.' The proper course is, to sell so much of the property taken as will satisfy the execution, and it must be sold separately when it can be reasonably and conveniently so sold.'' Moreover, the statute requires, that it shall be of- fered for sale in such lots and parcels as shall be calculated to bring the highest price.' Every bidding at an auction is nothing more than an offer on one side, which is not binding on either side till it is as- sented to ; and the bidder may retract his bid at any time be- fore the property is knocked down." But, where the goods > 2 E. 8. 252, § 149. < 8 id. 883 ; 14 Id. 852. »4Barbom-,484 • 2 E. S. 86T, § 23. s 14 Jobnson, 222. • 3 Term Eep. 148. LEVY AND SALE. 495 are knocked down by the officer, the bidder is liable to pay for them ; or, if he refuses to take the goods, they may be re- sold, and an action may be maintained against the bidder for any loss on their re-sale.' If no bidders attend the sale, the constable should post- pone it, and give notice to the plaintiff to attend ; and, if he do not, the constable will be excused in returning that the property remains on hand for want of buyers. He will also be excused in making such a return, if he cannot sell the property except at a great sacrifice. But, even after having made such return, be must proceed to sell the first opportu- nity." The adjournment of a sale, even after it has commenced, to a different time and place, is a matter of discretion with the constable ; and, where the sale is so adjourned for sufficient reason, and without fraud or abuse, it is good.^ It is provided, however, by statute, that no constable shall ask or receive any money or valuable thing from a defendant, or any other per- son, as a consideration, reward, or inducement, for omitting to arrest .any defendant, or to carry him before any Justice ; or for delaying to take any party to prison; or for postponing the sale of any property, under any execution ; or for omit- ting or delaying the execution of any duty pertaining to his office." Every constable offending against this provision is guilty of a misdemeanor, and, on conviction, is subject to fine or imprisonment, or both, in the discretion of the Court ; and every such conviction operates as a forfeiture of the office of the constable so convicted.' Where, on the sale of goods or chattels on execution, a sin- gle bid amounts to fifty dollars or more, then, unless the buy- er on the spot accepts and receives at least part of the goods, or unless the buyer at the time pays at least a part of the purchase money, the constable must take from the buyer a note or memorandum of his purchase in writing, subscribed by him. This is required in order to make the sale valid un- der the Statute of Frauds. {See ante, pp. 45, 46.) 1 4 Esptnasse, 263. < 2 E. S. 26T, § 234. a 2 Cowen, 42. » id. § 286. ' 6 JolmsoD, 34S, 496 NEW-TOEK JXrSTICB. § 73. Memorandum of Sale of Goods or Chattels. In Justice's Court, John Doe \ against \ Before James Smith, Esq., Justice. '" Richard Eoe. ) January 15th, 1853. Tlaomas Brown bought of William "Wilson, constable, at auction, on an execution issued in this cause. One horse, $55 Thomas Beown. 1^0 constable, or other ofBcer, can, directly or indirectly, purchase any goods or chattels at any sale made by him upon execution ; but every such purchase -will be absolutely void.' A constable is protected in the execution of process, if it appears regular on its face. If it shows on its face, that the Court has jurisdiction of the subject matter, and nothing ap- pears on it to apprize the officer that the Court has not juris- diction also of the person of the party to be affected by the process, he will be protected in executing it, even though it is issued by a Justice's Court which has not in fact jurisdic- tion in the case." But, if he is sued for taking property under legal process, he must, in order to justify himself, show that he was an officer, and had lawful authority to take the prop- erty.' ^y^'^ .^.-....^.^K^ -^/L^.Ai. ^^t^/^^-^/^xf ^^^ 5. PEOPERTY EXEMPT FROM EXECUTIOK. ^ The following property, when owned by any person being a householder, is exempt from levy and sale under any execu- tion, and such articles thereof as are movable, continue so exempt, while the family of such person, or any of them, may be removing from one place of residence to another : 1. All .' spinning wheels, weaving looms and stoves, put iip or kept up for use by the family,; 2. Tlie family Bible, family pictures and school books, used by or in the family of such person, and books, not exceeding fifty dollars in value, which are kept and used as part of the family library ; 3. A seat or pew occu- > 2 E. S 252, § 160. » 2 Comstock, 115. » 6 Wendell, 170; 6HU1,811. PEOPEETT EXEMPT FEOM EXECUTION. 497 pied by sucli person, or his family, in any house or place of public worship ; 4. All sheep, to the number often, with their fleeces, and the yarn or cloth manufactured from the same ; one cow, two swine, and the necessary food for them ; all ne- cessary pork, beef, fish, flour, and vegetables, actually provi- ded for family use, and necessary fuel for the use of the fam- ily for sixty days ; 5. All necessary wearing apparel, beds, bed- steads and bedding, for such person and his family ; arms and accoutrements, required by law to be kept by such per- son ; necessary cooking utensils ; one table ; six chairs ; six knives and forks ; six plates ; six tea cups and saucers ; one sugar dish ; one milk pot ; one tea pot and six spoons ; one crane and its appendages ; one pair of andirons, and a shovel and tongs; 6. The tools and implements of any mechanic, neces- sary to the carrying on of his trade, not exceeding twenty-five dpllarsjn value ' ^l^^^^^'-'^^/^iJ O.n^.'^r^A J^«i^..l*u~^ ^efl^esT'OT "the yam or cloth manufactured from the fleeces of ten sheep, are exempted from execution while in the hands of a householder, whether he be or be not the own- er of sheep/ Potatoes planted for family use, though not dug, are ex- empt, if within the quantity necessary for the family ; and all necessary vegetables are exempt, in any stage of the pro- cess of obtaining them for the family use, whether by plant- ing them, or in any other way.' y^»<^»^*'^*- *?y<,L^ il,- The cow of a householder is exempt, though the head of the family leave the State, leaving his family living together ; and it is also exempt when the family is moving from one house to another. The consent of the wife that the officer may levy upon property exempt froiti execution will not bind the hus- band.* ^tt.J'///,. ..,:.. J^//. Necessary wearing apparel is not exempted in all cases, but only when it is owned by the householder, or head of the family ; but the exemption extends to apparel furnished by him for the use of others living with him.' The party claiming an exemption for his cooking utensils. > 2 E. 8. 254, § 169. « 18 Johnson, 400. ' 11 Wendell, 44; 21 id. 68. » 19 Wendell, 476. « 25 id. 870. 33 498 KEW-TOEK JUSTICE. must show, affirmatively and certainly, that the cooking uten- sils taken in execution were in fact necessary, and not merely that they might be useful in cooking.' By a statute passed in 1843, it is further provided as fol- lows : "In addition to the articles now exempt by law from levy and sale under execution, there shall be exempted from such levy and sale, necessary household furniture and work- ing tools and team owned by any person being a householder, or having a family for which he provides, to the value of not exceeding one hundred and fifty dollars ; provided that such exemption shall not extend to any execution issued on a de- mand for the purchase money of such furniture, or tools, or team, or articles now enumerated by law."' It has been held that this statute does not afi'ect executions for debts con- tracted before its passage." ^^-■'S^i^^'.'-w '. • .-/ / ^q^ ^t\^ y^ Under this statute it has been held, that whether a given article is necesswry household furniture, is a q'uestioii of fact for a jury, and not one of law, and that the party who claims the exemption must show that the article was necessary, and not merely that it was convenient." It has also been held, that a team is two or more horses or oxen harnessed together ; that harness may, therefore, be regarded as exempt, but that a wagon, a cart, or a sleigh cannot be regarded as a part of a team, and are not exempt -^ and that necessary food for a .team is not exempt.' '^^'^-?^-*-' ', , ■ o .■ /- It has been a Controverted point, and is not yet settled by the highest authority, as to the effect to be given to the pro- viso in the additional exemption act of 1842, above cited: '■' provided that such exemption shall not extend to any exe- cution issued on a demand for the purchase money of such furniture, or tools, or team, or articles now enumeratedhy law." In the case of Matliewson v. Weller,'' a pair of horses, the ne- cessary team of a householder, and of less value than $150, had been taken on an execution for the purchase money of a stove sold to their owner. Although in that case it appeared 1 14 Johnson, 484; 1 Denlo, 462. * 1 Denlo, 462. » Laws of 1842, chop. 157. • 6 Howard's Prac^ep. 18. ' = 1 Denlo, 128 ; 3 id. 64, 694 i 1 ComBtook,! • 6 Denlo, 119, cCc^^^ ''SlS''7/i ) ^ S m)l -'-■' ' ""', ■ ' ' '8 id. 62. ■ /^ PEOPEKTT EXEMPT FEOM EXECUTION. 499 that the stove was sold prior to the passage of the act of 1842, and the Court held that therefore that act, not being retro- spective, had no application to the case, and that the property was lawfully taken ; yet the Court, while saying that it was unnecessary to examine the question as to the proper con- struction of the proviso in the act of 1842, went on to say, that no exemption, whether claimed vm,der the Revised Statutes, or undsr the law <2/"1842, could be set up against an execution on a judgment rendered for the purchase money of any prop- erty made exempt by any law, though the particular property in respect to which the exemption might be claimed, was paid for. Eut the question has recently arisen again, in the case of Cole v. Stevens^ There, necessary beds and bedding, one table, and six chairs, exempt under the Revised Statutes, the property of a householder, were taken on an execution for the purchase money of a stove, which was also exempt under the Revised Statutes, being the only one in use in the family. The Court held, that the beds, bedding, table and chairs, were unlawfully taken ; that the proper construction of the proviso in the act of 1842 is, that the additional exemption allowed by that act does not extend to executions issued to collect the purchase money of any exempt property whatever ; and that where the exemption claimed is given by the Kevised Stat- utes, the act of 1842 has no effect upon it. Even under this decision, the team in Mathewson v. Weller would not have been exempt on the execution on the stove, and the decision in the latter case, so far as it conflicts with the decision in Cole V. Stevens, must be regarded as being a mere dictvmi, and as having been overruled. The decision in Cole v. Stevens seems to be the sounder one, and more in harmony with the rules for interpreting statutes. At all events, it must be regarded as the law, until overruled by the Court of Appeals.'^^^/^'^y'"''*^ A^f'^^i"'^ 2^/%»^^r2y, The exemption of property from execution is a personal privilege of which the owner alone can take advantage ; and his bailee cannot maintain an action on that ground for prop- erty taken in execution against the owner." J^^t^^ eu Aa^-t-^^^^ 1 9 Bartour, 676 ; « Howard's Prao Kep. 424 = 1 Cowen, 114 ; 16 Wendell, 5«8. 500 NEW-YOEK JUSTICE. 6. IMPRISONMENT ON EXECUTION. For want of goods and chattels wliereon to levy, the consta- ble must, in the cases authorized by law, if the execution re- quires it, take the body of the person against whom the exe- cution has issued, and convey him to the common jail of the city or county, the keeper whereof is required to keep such person in safe custody in jail, until the debt, or damages and costs, shall be paid, or he be thence discharged by due course of law.' It is the duty of a constable to whom an execution is deliv- ered, to search, in all cases, for property, before he takes the body of the defendant. If, without searching or inquiring for property, he, immediately upon receiving the execution, ar- rests the defendant, he does it at his peril ; and if it be shown that the defendant had property in his open and visible pos- session, which was subject to the execution, and might, with reasonable diligence, have been found by the officer, the offi- cer is liable to an action for the arrest. A constable has, in all cases, a reasonable time to search for property, before he is bound to arrest the defendant in an execution ; and, if he acts in good faith, he will incur no responsibility in omitting to take the body until such search can be made. If the defend- ant declares he has no property, the arrest may be made im- mediately." If the person so committed to jail has a family in this State, for which he provides, and is not a freeholder, hei must be dis- charged after he has remained in prison thirj^y days ; and, if he has no family, and is not a freeholder, he jmust be discharg- ed after remaining in prison sixty days.' And a defendant in a judgment rendered before a Justice, is entitled to his dis- charge after an imprisonment of thirty days, if he has a fam- ily, and is not a freeholder, although a transcript of. the judg- ment has been filed in the comity clerk's office, and the exe- cution whereon he is imprisoned is issued by the county clerk.* Before such prisoner can be discharged, he must make and deliver to the sheriff or jailer, an affidavit, taken before a Jus- tice of the Peace, or some other officer authorized to take affi- > 2 E. S. 252, S 16L • 2 E- S. 262, § 162./ /!' ''^^ i--' ^J ^ • 4 W mdell, 689. « 6 WendcU, 668. EETUEN OF EXECUTION. 601 davits, stating the facts which, according to the preceding provisions, entitle him to such discharge.' The sheriff or jailer, upon the receipt of such affidavit, must forthwith discharge the prisoner from his custody, and must file the affidavit in the office of the clerk of the county, whose duty it is to file the same without fee or reward." If the sher- iS or jailer, upon the receipt of such affidavit, refuses to dis- charge such prisoner, he forfeits twenty -five dollars for each day he detains such prisoner, to be recovered, with costs, by the party aggrieved, to his own use, in addition to any damages he may Acover for the false imprisonment." If the sheriff or jailer is prosecuted by reason of any such discharge, he may plead the general issue, and give in evidence such affidavit, or a copy thereof, duly certified by the clerk of the county, imder the seal of the County Court, in his full justification and defence.'' Notwithstanding the discharge of the defendant under the foregoing provisions, the judgment on which the execution was issued, remains good against the property of the defend- ant, and a new execution may be issued thereon against his property, in like manner as if he had not been imprisoned.' For various provisions on the subject of arrest in civil pro- cess, see ante, chapter 7. 1. RET0RM- OF EXECUTION. The constable must return the execution, and pay the debt or damages, and costs levied, to the Justice who issued the same, returning the overplus, if any, to the person against whom the execution issued." § 73. Return to an Execution Satisfied. The amount of the within execution levied of the goods and chattels of the defendant therein named. January 15, 1853. H. C, Constable. § 74. Return to Execut/ion Satisfied in Part. The within execution satisfied in part, to wit : for the sum > 2 E. S. 252, § 163 ; Laws of 1831, chap. 24 ■" id. § 156. »2E. S. 262,§154 Md.§15T. " id. § 155. • id. § 149. 502 NEW-TOEK JUSTICE. of dollars ; and no goods or chattels of the defendant found whereof the residue could be made. January 15, 1863. H. C, Constable. § 75. Return where Defendant is Committed. No goods or chattels of the within named A. B. found, and his body taken and conveyed to the common jail of the county. January 15, 1853. H. 0., Constable. § 76. Hetu/rn of no Property found. IS'o goods or chattels of the within named A. B. ,could be found. January 15, 1853. H. C, Constable. § 77. Retv/rn where no Property., nor the Body of the Pefend- cmt, is Found. No goods or chattels, nor the body of the within named A. B., could be found. January 15, 1853. H. C, Constable. § 78. Return of Pa/rt Satisfied, and no Body Found. The within execution satisfied in part, to wit : for the sum of dollars, and no more goods or chattels, nor the body of the within named A. B., could be found. January 15, 1853. H. C, Constable. § 79. Retnirn where Goods remain Unsold. Levied on a lumber wagon, the property of the within named A. B., which remains in my possession, unsold, for want of bidders. January 15, 1853. H. C, Constable. If a constable neglects to return an execution within five days after the return day thereof, the party in whose favor the same was issued may maintain an action of debt against such constable, and is entitled to recover therein the amount of the execution, with interest from the time of the rendition of the judgment upon which the same was issued ; and, if a judgment be obtained in such suit against the constable, execution must immediately issue thereon.' 'aE.S.258, §189. j^'. J''/ EBTTJEN OF EXECUTION. 503 Under the security given by a constable when he enters on the duties of his office,' the responsibility of his sureties is co- extensive with his own, and they are liable whenever he is liable, to a party in whose favor an execution has been deliv- ered to him. Such sureties are, therefore, liable for the neg- lect of the constable to return an execution, even though it does not appear, that any money has come to his hands un- Every officer to whom any process is delivered must exe- cute the same according to the command thereof, and must make due return of his proceedings thereon, which return must be signed by him. For any violation of this provision such officer is liable to an action at the suit of any party ag- grieved, for the damages sustained by him, in addition to any other fine, punishment, or proceeding, which may be author- ized by law.' Where the process is an execution, the dama- ges sustained are presumptively the full amount of the execu- tion ; but the officer may mitigate the amount, by showing that the whole sum could not home 'been collected by due dili- gence on his part. But it is no answer to such an action to show, that the defendant in the execution still has abundant property, out of which the judgment inay ie collected.' If moneys are collected by a constable upon an execution, and not paid over by him according to law, an action of as- sumpsit may be maintained by the party entitled to such money, in his own name, upon the instrument of security giv- en by such constable and his sureties, on his entering upon the duties of his office ;° and, in such suit, the amount so col- lected, with interest from the time of collection, can be re- covered. Execution can be immediately issued upon the judgment in such suit." If any money is collected for any party, by a Justice of the Peace, in his official capacity, and he neglects or refuses, within a reasonable time after demand, to pay over the same, such neglect or refusal is a misdemeanor, and, on con- viction thereof, such Justice forfeits his office.' ' 1 E. 8. 846, § 21. ^ , , Ledyard v. Jones, Court of Appeals, Dec. 1852. » 10 "Wendell, 870. ? •<''', ■-''-'' » 1 E. S. 346, § 21. ' 2 E. 8. 440, § 7T. L'J' 1X1 7i,.A-x ^ ' ' i>« 2 id. 264, § 168. * 6 Hill, 550; 8 Denio, 82T; 4 Bandford, 6T; ' id. 271, § 259. 604 NEW-TOEK JtrSTICE. CHAPTER XYIII. OF. APPEALS. The Code contains the following provisions in regard to tlie review of judgments in civil cases, rendered by Courts of Jus- tices of the Peace : All statutes, now in force, providing for the review of judgments in civil cases, rendered by Courts of Justices of the Peace, by the Marine Court of the city of New- Tork, by the District Courts in the city of New- York, by the Municipal Court of the city of Brooklyn, and by the Jus- tices' Courts of cities, and regulating the practice in relation to such review, are repealed ; and, hereafter, the only mode of reviewing such judgments shall be an appeal, as prescribed by this chapter.' When the judgment shall have been ren- dered by the Marine Court of the city of ISTew-York, or by a District Court in that city, the appeal shall be to the Court of Common Pleas for the city and county of New-York ; and when rendered by any of the other Courts enumerated in the last section, to the County Court of the county where the judgment was rendered." Any party aggrieved may appeal in the cases prescribed in the Code." The party appealing is known as the appellant, and the adverse party as the respondent. But the title of the acjtion must not be changed, in consequence of the appeal.^ 1. APPEAL, WHEN AND HOW TAKEN. The appellant must, within twenty days after judgment, serve a notice of appeal, stating the grounds upon which the appeal is founded. If the judgment is rendered upon pro- cess not personally served, and the defendant did not appear, he has twenty days, after personal notice of the judgment, to > Code, § 851. " W- § S25. f ' 1 -" / : //'' a Id. § 852. * li § 82G. APPEAl, "WHEN AND HOW TAKEN. 505 serve the notice of appeal.' The notice may be signed by the party, his agent, or attorney ; but the appellant must point out specifically, on what point or ground he alleges the judg- ment tobe erroneous." The notice of appeal must, 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 the county, in the same manner, on the attorney or agent, if any, who is a resident of such city or county, who appeared for him on the trial ; and the appellant must, at the time of the service of the notice of appeal on the Justice, pay to him the costs of the action included in the judgment, together with two dollars costs of the return, which must be restored to him in case the judgment is reversed, and be included in the judgment for costs on reversal.' The notice must be served within the twenty days, both on the Justice and the respondent ; otherwise, there is no appeal. And a verbal no- tice is insuflBcient ; it must be in writing. Where there is a failure to serve the notice within the time prescribed, there can be no amendment allowed. The Court has no authority to allow an appeal to be brought after the expiration of the time limited by statute.* Where, by reason of the death of a Justice of the Peace, or his absence from the county, or any other cause, the notice of appeal cannot be served as provided by section three hundred and fifty-four, it may be served by leaving the same with the clerk of the county. ' § 80. Notice of Ajpfeal. Cayuga Cotmty, In Justice's Court. . , / Before Horace T. Cook, Esquire, Justice Charfe? Wilson. ) °^ ""^^ ^^^""^ °^ *^^ ^^^^ ^^ ^^^^^°- Judgment rendered for jilaintiflf, March 1st, 1853, for $30 damages, and $2 60, costs ; in all, $32 50. I Code, § 353. 4 5 Howajd's Prac Eep. 114, 861 ; 1 id. 108. » 2 Bandford, 682. » Code, 869. "Code, §354. 506 NEW-TOEK JUSTICE. To James Brown, plaintiff in the above action, and to Horace T. Cook, Esquire, a Justice of the Peace of the city of Au- burn : Take notice, that I appeal from the judgment in the above action, to the County Court of Cayuga county, and that the following are the grounds upon which the appeal is founded : 1. The plaintiff Tiaving proved by Charles Tuttle, a witness swoi-n on his part, that he had seen a letter purporting to have been written by the defendant, but did not know that the let- ter was written by him, and that, on comparing the signature to the note sued on and the signature to the letter, he believed they were in the same hand-writing, although he had never seen the defendant write, and no other proof having been giv- en by the plaintiff of the execution of said note, the Justice erred in denying the motion for a nonsuit. 2. The Justice erred in excluding the testimony of Charles Avery, by whom the defendant offered to prove that he had freqUipntly seen the defendant write, and was familiar with his hand-writing, and that the signature to the said note was not in the hand- writing of the defendant. 3. The Justice erred in admitting the testimony of Charles Tuttle to prove the signature to the said note, the said Tuttle having testified that he had never seen the defendant write, and did not know that a letter purporting to be his was writ- ten by him, but that the signatures to the note and letter, were, as he believed, in the same hand-writing. 4. The Justice erred in charging the jury that the plaintiff had proved the execution of the said note. 5. The jury erred in finding a verdict for the plaintiff. Dated March 2d, 1853. CffAELES Wilson, Defendant. 2. STAY OF EXECUTION". If the appellant desires a stay of execution of the judgment, he must give security, which security must be a written un- dertaking, executed by one or more sufficient sureties, ap- proved by the County Judge, or by the Court below, to the effect, that if judgment be rendered against the appellant, and execution thereon be' returned unsatisfied in whole or in part, the sureties will pay the amount unsatisfied.' If the appeal is not followed up by the giving of the undertaking, it will not operate as a stay of any further proceedings which the successful party may elect to pursue, in order to enforce the collection of the judgment." > Code, §§ 855, 866. '. .' ' ,' ;^ , , ' ,'; ■■ " 9 Bartour, 8T8. STAT OF EXECUTION. 507 § 81. Undertaking. Cayuga County, In Justice's Court. aaain^T^ i ^^^'^^® Horace T. Cook, Esquire, a Jus- Charles Wilson, j *^°® °^ *^^ ^®^^^ <^f t^e city of Auburn. Charles Wilson, the above named defendant, having ap- pealed to the County Court of Cayuga county, from a judg- ment rendered against him on the first day of March, 1853, by Horace T. Cook, Esquire, a Justice of the Peace of the county of Cayuga, for $32,50 damages and costs, in favor of the above named plaintiff, James Brown : ISTow, therefore, for the purpose of staying the execution of the said judgment, "we, James C. Derby and Henry Underwood, as sureties, un- dertake, jointly and severally, that if judgment be rendered against the said Charles Wilson, appellant, and execution thereon be returned unsatisfied in whole or in part, we will pay the amount unsatisfied. Witness our hands this 2d day of March, 1853. James C. Deebt, Henet Undeewood. This undertaking, before it can be of any avail, must be approved by the County Judge, or by the Court below. The approval should be endorsed on the undertaking, and may be in the following form : I approve of the within undertaking, and of the sufficiency of the. sureties therein. Dated March 2d, 1853. HoEAOE T. Cook, Justice of the Peace. ^) The delivery of the undertaking to the Court below will stay the issuing of the execution ; or if it have been issued, the service of a copy of the undertaking, certified by the Court below, upon the officer holding the execution, will stay further proceedings thereon.' Where, by reason of the death of a Justice of the Peace, or his removal from the county, or any other cause, the under- taking on the appeal cannot be delivered to him, it must be filed with the clerk of the appellate Court, and notice thereof given to the respondent, or his attorney or agent, as provided •Code, §S5T. 508 NEW-TOEK JUSTICE. in section three hundred and fifty-four. It will, thereupon, have the same effect as if delivered to the Justice.' 8. RETURN TO APPEAL. The Court below must thereupon, after ten days, and within thirty days after the service of the notice of appeal, make a return to the appellate Court, of the testimony, proceedings and judgment, and file the same in the appellate Court, aiid may be compelled to do so by attachment. But no Justice of the Peace is bound to make a return, unless his fee of two dollars for making his return is paid on service of the notice of appeal." When a Justice of the Peace, by whom a judgment appeal- ed from was rendered, has gone out of office before a return is ordered, he must, nevertheless, make a return, in the same jnanner, and with the like effect, as if he were still in ofiice.' If he has removed to another county within the State, the ap- pellate Court may compel him to make the return, as if he were still within the county where the judgment was ren- dered.* If the return is defective, the appellate Court may direct a further or amended return, as often as may be necessary, and hment.* may compel a compliance with its order, ,bj attachmc i c, -- / ^ /v^u, .' P./ ■) -;?^'--? ^82. Justice! s Return,. To the County Court of Cayuga County : In pursuance of the notice of appeal hereto annexed, which was served on me on the second day of March, 1853, and in obedience to the requirements of section three hundred and sixty of the Code, I^ Horace T. Cook, a Justice of the Peace of the city of Auburn in said county, hereby certify and re- turn to the said Court, that, on the 20th day of February, 1853, I issued a summons in an action in which James Brown was plaintiflT and Charles Wilson defendant, returnable on the 28th day of February last, at two o'clock, P. M. at my ofiice in the said city of Auburn. The summons was returned personally served on the 2l8t day of February last, by Stephen Austin, constable, as appears by his return duly endorsed thereon. > Code, §858. Md. S868. a Id. §860. Md.§S62. > Id. § 861. EETUEN TO APPEAL. 509 On the said 28th day of February, at the time and place above mentioned, the parties appeared, the plaintiff in person, and the defendant by his attorney, James E. Cox, and joined issue. The plaintiff complained on a promissory note execu- ted by the defendant on the first day of January, 1853, for $30, payable to James Smith or bearer in thirty days from date. The defendant answered the complaint by denying the execution of the note. Issue being thus joined, the cause was adjourned, by consent of the parties, to the first day of March instant, at two o'clock P. M. at my office. At the time and place last mentioned the parties appear- ed in person, and, at the request of the defendant, I issued a venire returnable forthwith, and the constable to whom the venire was delivered returned the same, with the list of ju- rors who had been summoned thereto annexed. All the jurors so summoned appeared, and the following were duly drawn and sworn as jurors to try the action. {Here insert the jurors^ names.] On the trial, the plaintiff called Charles Tuttle as a witness, who, being duly sworn, testified, that he had never seen the defendant write, that he had seen a letter which purported to have been written by the defendant, but did not know that it was written by him, except from information, and that, on comparing the signature to the note produced, which was the note sued on, with the signature to the letter, he believed they were in the same hand-writing. The plaintiff here rested, and the defendant moved for a nonsuit, on the ground that the execution of the note had not been proved. I denied the motion. The defendant then called Charles Avery as a witness, and offered to prove by him, that he had frequently seen the de- fendant write, and was familiar with his hand-writing, and that the signature to the note was not in the hand-writing of the defendant. I excluded the testimony offered to be given by this witness. No other testimony was given on the trial, and I then charged the jury that the execution of the note was sufiicient- ly proved. The cause was then submitted to the jury, who retired under the charge of a constable duly sworn, and, after deliberating upon their verdict, returned, and being called by me severally answered to their names, and the plaintiff being then called and answering, the jury delivered their verdict in open Court, in favor of the plaintiff, for thirty dollars dam- ages, and I entered it in my docket on the first day of March, 1853, and immediately, and on the same day, rendered a judgment for the plaintiff against the defendant, for $30,00 damages and $2,50, costs. I also certify, that when the notice of appeal before referred 510 NEW-TOEK JTTSTIOE. to was served upon me, the above costs, included in tlie said judgment, namely, $2,50, and two dollars costs of this return, were paid to me by the said defendant. Dated Auburn, March 15th, 1853. HoKACE T. OooK, Justice. 4. PROCEEDINGS IN APPELLATE COURT. When a party gives in good faith notice of appeal from a judgment, and omits, through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the appellate Court may permit an amendment on such terms as may be just.' If a Justice of the Peace, whose judgment is appealed from, dies, becomes insane, or removes from the State, the appellate Court may examine witnesses, on oath, to the facts and cir- cumstances of the trial or judgment, and determine the ap- peal, as if the facts had been returned by the Justice. ° If a return be made, the appeal may be brought to a hear- ing at a general term of the appellate Court, upon a notice by either party of not less than eight days. It must be pla- ced upon the calendar, and it continues thereon without fur- ther notice, until finally disposed of; but if neither party brings it to a hearing before the end of the second term, the Court must dismiss the appeal, unless it continues the same, by special order, for cause shown.' Tlie judgment will be reversed by default, if the respondent does not appear to argue the appeal.* The appeal must be heard on the original papers ; and no copy thereof need be furnished for the use of the Court.' And the Court can only look to the return of the Justice for the facts of the case." Upon the hearing of the appeal, the appellate Court must give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits. In giving judgment, the Court may affirm or reverse the judgment of the Court below, in whole or in part, and as to any or all the parties, and for errors of law or fact. If the » Code, § 827. * 2 Sandford, 634. ' id. § 868. ' Code, § 865. ' Id. 864, * 8 Code Eeporter, 16. PEOCEEDINGS IK APPELLATE COtTET. 511 appeal is founded on an error in fact in the proceedings, not affecting the merits of the action, and not within the knowl- edge of the Justice, the Court may determine the alleged error in fact on affidavits, and may in its discretion inquire into and determine the same upon examination of the wit- nesses. If the defendant failed to appear before the Justice, and it is shown by the affidavits served, or otherwise, that manifest injustice has been done, and the defendant satisfac- torily excuses his default, the Court may in its discretion set aside or suspend judgment, and order a new trial before the same or any other Justice, at such time and place, and on such terms, as the Court may deem proper. The parties must appear before the Justice according to the order of the Court, and the same proceedings must thereupon be had in the ac- tion, as on the return of a summons personally served.' Al- though the appellate Court will not reverse the judgment below, if the evidence merely preponderates against it, yet a material defect of proof is fatal.'' So, too, a Justice's judg- ment will be reversed, where the return of the Justice does not contain any legal evidence to support it.° To every judgment on an appeal there must be annexed the return on which it was heard, which must be filed with the clerk of the Court, and will constitute the judgment roll.' If the judgment is affirmed, costs must be awarded to the respondent. If it is reversed, costs must be awarded to the appellant. If it is affirmed in part, the costs, or such part as to the Court shall seem just, may be awarded to either party." If the judgment below, or any part thereof, is collected, and the judgment is afterwards reversed, the appellate Court must order the amount collected to be restored, with interest from the time of collection. The order may be obtained upon proof of the facts, made at or after the hearing, upon a previ- ous notice of six days." If, upon an appeal, a recovery is had by one party, and costs are awarded to the other, the appellate Court must set » Code, § 366. ■'''" ^^'^ J i-- f ' * Code, § 36T. > 5 Barbour, 283; 2 Sandtord, 222 ; T How- » id. § 368. ard's Prac. Eep. 64. • id. § 869. • id. 113. 512 NEW-TOEK JUSTICE. oif the one against the other, and render judgment for the balance.' 5. COSTS AND FEES ON APPEALS. The following costs and fees, and no others, except fees of officers and disbursements, are allowed on appeals :" To the appellant on reversal, fifteen dollars ; To the respondent on affirmance, twelve dollars ; To a Justice of the Peace, for his return, two dollars. If the judgment appealed from is reversed in part, and af- firmed as to the residue, the amount of costs allowed to either party will be such sum as the appellate Court may award, not exceeding ten dollars. If the appeal is dismissed for want of prosecution, as provi- ded by section three hundred and sixty-four, no costs can be allowed to either party. ' Code, § 8T0. » Id. | 871. PART II. OF THE CRIMINAL JUEISDICTIOlSr OF JUSTICES OF THE PEACE. PART II. OF THE CRIMmAL JUEISDICTION OF JUSTICES OF THE PEACE. CHAPTER I. OF POLICE JUSTICES, AND THEIR JURISDICHON. It was mentioned in tlie commencement of this work," that the jurisdiction of Justices of the Peace in this State is two- fold, civil and criminal, and that, in the larger towns and cities, their authority is divided, the civil jurisdiction being exercised hy Justices of the Peace, and the criminal juris- diction by Police Justices. It is proposed to consider, in the first place, the nature and extent of the jurisdiction of Police Justices in the several towns and cities in which they are chosen ; and afterwards, the criminal jurisdiction of Justices of the Peace generally. In the city of Albany, there are two Police Justices, one of whom is elected biennially, on the day of the general State election, and holds his office for four years. ^ Formerly, the common council of the city selected, from among the Justices of the Peace of the city, two persons to be Police Justices.' The act requiring them to be elected in no respect changes the provisions of the former act which define their powers. Those provisions are as follows : " They," (the Police Justices,) " shall have and exercise the like powers, under the like re- strictions, as is now provided by law in relation to said office. They shall be paid a salary of not less than one thousand 'Ante, p. IT. "Laws of 1648, chap. TO, §8. •Laws of 1851, ckap. 86, §6. 516 NEW-TOEK JTTSTIOE. dollars, or more than one thousand three hundred dollars, per year each.'" The words, as is now provided ly law, refer to the language of the act which first authorized the selection of Police Justices, namely : " And the said Justice or Justices shall have and exercise the like powers in the said city, as are now exercised by any alderman thereof, or by Justices of the Peace in the different towns of this State ; provided, that nothing herein contained shall be con- strued to authorize said Police Justice or Justices to try causes for the recovery of debts, other than those which may arise for the violation of any by-laws of said city. All the powers and jurisdiction of an alderman of the city of Albany, and of the Justices' Court of said city, to hear, try and determine all or any suits brought for the violation of any by-law, by and in the name of the chamberlain of the said city, shall be and are hereby declared to be vested in such Justice or Jus- tices of the said city, in as full and effectual a manner as the Justices' Court of the said city, or any alderman thereof, now have or possess the same." " In the city of Auhurn, by a special provision in the city charter,' the Police Justice possesses all the powers and juris- diction of Justices of the Peace, and an exclusive jurisdic- tion, as against other Justices of the Peace, of all police and criminal matters within the said city.* It is his duty to issue process on the application of the mayor, any alderman, or the city attorney, for the apprehension of any person charged with having committed any felony within the county of Cay- uga, or with having violated any of the provisions of the act of incorporation, or the ordinances passed by the common council. He is to keep his office in a central part of the city, to account to the common council for all fines and costs that may be imposed and collected by him, and to pay the same quarterly to the treasurer. In case of his sickness, absence, or inability to act, any Justice of the Peace of the city may perform the duties of his office for the time being. His salary is fixed by the common council at an amount not ex- « Laws of 1848, chop. TO, §§ 3, 4 ' Laws of 1848, chap. 100, tiae 4, § S 'lawsof 1842, chap. 276, §§84, 8«. * id. tiUe 11, § 8. POI.IOE JUSTICES, AHD THEIR JURISDICTION. 617 ceeding $300 per year. He is required to execute a bond to the mayor and common council, in such sum and with such sureties as they shall approve, conditioned that he will faith- fully execute the duties of his ofBce, and account for and pay over all moneys received by him, according to law.' The manner of his election is prescribed by the city charter. In the city of Brooklyn, the Police Justice is prohibited by statute" from exercising any civil jurisdiction, except in suits, actions, or proceedings which may be brought on any of the ordinances, by-laws, or regulations of the city, or of the board of health of the city, where the penalty does not exceed the sum of $250 ; in all of which cases, the Police Justice, and each of the Justices of the Peace elected under the city charter, have, possess and exercise jurisdiction. Warrants and other processes may be issued by him, and by the Justices of the Peace of the city ; and they have jurisdiction, in criminal cases, over all persons arrested or charged with any offence within the county of Kings, and power also to hear all complaints and conduct all examinations in criminal cases.' The office of the Police Justice is to be kept at such place as the common council may designate and j)rovide, where he is to attend, at all reasonable hours, to all complaints of a criminal nature which may be brought before him." He is empowered, also, to hold a Court of Special Sessions alone.' The fees received by him, which are the same as those of Justices of the Peace in towns, are to be accounted for to the proper officer, and he has a salary of $1500 jper annum, paya- ble quarterly.' In the city of Bxvffalo, a Police Justice is elected by the people, who holds his office for four years.' He receives from the board of supervisors, in lieu of all fees, a salary of not less than $1000 a year.' He has sole and exclusive jurisdic- tion to hear all complaints and conduct all examinations in criminal cases, and it is his duty to preside in all Courts of 1 Laws of 184S, chap. 106, title 2. ' id. § 16. " Laws of 13o0, chap. 102, § 11. • id. § 15. > id. § 12. ' Laws of 184T, chap. 179, § 1. < id. § 14. 6 Laws of 1843, chap. 182, title T, § 6. 518 NEW-TOEK JU8TI0E. Special Sessions wliicli are held in said city." Warrants may- be issued in criminal cases for the apprehension of offendersj by any other Justice of the city ; but they must be made returnable before the Police Justice. The Justices of the Peace of the city may exercise, in all criminal matters and proceedings, the same powers and jurisdiction as Justices of the Peace in towns, whenever there is a vacancy in the office of the Police Justice, or when he is absent, sick, or unable to act. In such cases they are entitled to the same fees as Jus- tices of the Peace in towns.' Whenever any person is con- victed of any offence before the Police Justice, and a fine only is imposed, he may sentence the offender to be imprisoned until the payment of the fine, for a term not exceeding six months.' In the town oi Kingston, there are two Police Justices, one of whom is required to reside in the village of Kingston, and the other in the village of Eondout.* Their term of office is three years. They have the same jurisdiction and powers in criminal cases and proceedings, and are subject to the same duties and liabilities, as Justices of the Peace. The statute regulates the time and manner of their election.' They are to provide themselves with a suitable and convenient room, where they are to attend, at all reasonable times and hours, for the transaction of business, and the hearing of complaints of a criminal nature. The removal of either of them from the village of his residence is to be deemed and held to create a vacancy in his office." They have, in the said town, concur- rent and exclusive jurisdiction, except in case of absence, sickness, or inability from other cause, to hear all criminal complaints, and to conduct all the criminal business in the said town that may by law be done by a Justice of the Peace.' ]S'o Justice of the Peace of the said town is bound to ren- der any service, or entitled to receive any fees, in criminal cases, except when the offices of both Police Justices are va- cant, or when a complainant shall, by his own oath, or that 1 Laws of 1848, chap. 182, title T, § T. • id. §§ 2, 8. a id. § 8. • Id- § ■*. 'id. §9. 'id. §6. *Lawsofl851,cliap.66, §1. POLICE JITSTIOES, iSD THEEB JTJEI8DI0TION. 519 of some other person, prove that both of the Police Justices are absent from the town, or sick, or otherwise unable to at- tend to such application, and the offence charged is a felony. The Justice to whom such application is made, must then issue a warrant to apprehend the person charged. But every such warrant is to be made returnable before one of the Police Justices of the town. The warrants issued by the Police Jus- tices are to be made returnable in the same manner.' It is the duty of every constable, or other oflBcer arresting any person on a criminal warrant returnable before any Jus- tice of the Peace of the said town, to take such person before one of the Police Justices, who must proceed thereon as if he had issued the warrant, and any officer arresting any person on a criminal warrant returnable before a Police Justice, whether issued by one of the Police Justices, or by a Justice of the Peace, must take the person so arrested to the office of one of the Police Justices forthwith." In case such Police Justice is absent from the town, or, by reason of sickness or any other cause, is unable to inquire into the case, then the officer must take the prisoner before the other Police Justice. If he too is sick, absent from the town, or, by reason of any other cause, is unable to inquire into the case, then the pris- oner is to be taken before one of the Justices of Peace of the town, who is to proceed with the case.' Neither of the Po- lice Justices can receive for his own use any fees for his ser- vices, but they are each entitled to an annual salary of $500. Their fee bills are to be audited by the board of supervisors, and the amounts thereof paid to them as part of their salaries. Costs collected by complainants, and fines received, are to be retained by them on account of their salaries. They are each to account to the supervisor of the town of Kingston.' In the town of JVewhurgih, the Police Justice has the same powers and j urisdiction, in criminal cases and proceedings, as Justices of the Peace, and is subject to the same duties and liabilities." He has, in the said town, except in the case of "Lawsofl851, chap. 56, §6. Md. § 8. a id. § T. • Laws of 1850, chap. 42. 'Id. 520 NEW-TOEK JUSTICE. absence or inability to act, exclusive jurisdiction to hear all criminal complaints, and to conduct all other criminal busi- ness that may by law be done by a Justice of the Peace. He has a yearly salary of $500. His duties are similar to those of the Police Justices of the town of Kingston before stated. Two police officers are attached to his office, who have the same powers and jurisdiction, in criminal cases and proceed- ings, that constables have.' In the city of New- York, a Police Justice is elected in each of the six election districts, who holds his office for four years.'' These Police Justices have all the powers and perform all the duties of the former Special Justices of the Peace. A clerk for each Police Court is appointed by the mayor and alder- men of the city.' The salaries of the Police Justices, and of the clerks of the Police Court, are fixed by the board of super- visors, and are payable on the first day of each month, out of the city treasury.* The Kecorder of the city of Oswego, in addition to such oth- er powers and duties as have been conferred upon him by law, acts, also, as the Police Justice of the city; and, as such, has sole and exclusive jurisdiction to hear all complaints, and to conduct all examinations in criminal cases.' He possesses, also, all the powers of Justices of the Peace in criminal mat- ters and proceedings.' "Warrants may be issued in criminal cases by other Justices in the city, but they must be made re- turnable before the Eecorder. And the other Justices, when the office of Recorder is vacant, or he is unable to perform its duties, have cognizance of criminal matters.' In the village of PougJikeepsie, the Police Justice, who is elected at the annual town election, holds his office for five years. He has, (except in case of absence, or inability to act,) sole and exclusive jurisdiction to hear all complaints, and to conduct all examinations, in criminal cases, in the town of Poughkeepsie, and to try all criminal cases as a Court of > Laws of 1851, chap. 69. » laws of 1848, cbap. 116, title 7, § 21. » Laws of 1848, chap. 168. • Laws of 1849, chap. 184 » Laws of 1861, chap. 147 ' id. § 8. * id. chap. Bii. POLICE JUSTICES, AND THEIE JURISDICTION. 521 Special Sessions that might formerly he tried by a Justice of the Peace, or hy a Court of Special Sessions in said town. A vacancy in his office is filled by a person selected by the Coanty Judge and the Justices of the Peace who are designa- ted to act as the Associate Judges of the County Criminal Courts. Proceedings upon warrants issued by him, which are returned during his sickness or inability to act, may be had before any Justice of the Peace of the town. "Warrants issued by him for the apprehension of criminals, have the same ef- fect, and are subject to the same restrictions, as warrants issued by Justices of the Peace in like cases. He receives an an- nual salary of $500.' In the city of Rochester, the Police Justice is appointed by the common council, and holds his office for four years.' He is required to keep his office in the first ward of the city, and to attend, at all reasonable hours, to all complaints of a crim- inal nature which may be brought before him. He is not en- titled to receive any fee or reward for any service ; but, in lieu thereof, he receives an annual salary, which is fixed from year to year by the board of supervisors of the county of Monroe. He is required to render a verified account, on the first Mondays of May and November in each year, of all moneys, goods, wares, and merchandize that shall then re- main unclaimed in the Police Office, and, immediately there- after, to publish a notice for four weeks in one of the city pa- pers, to all persons interested in or claiming such property. He is permitted to sell at public auction perishable property, or property expensive to keep, remaining unclaimed in his office. Stolen property is to be delivered by him to the owner, on satisfactory proof of ownership, and payment of necessary and reasonable expenses. Property unclaimed after publica- tion of notice, is to be sold by him at public auction, and the proceeds paid to the county treasurer.' He has the same ju- risdiction in suits brought for a violation of any of the city ordinances, or of the laws concerning the internal police of the State, as is conferred upon Justices of the Peace of the > Laws of 1849, chap. 86. " id. title 4, §§ 82 to 86. « Laws of 1860, chap. 262, title 2, § 10. 522 NEW-TOEK JUSTICE. said city. He is prohibited from exercising any civil juris- diction, but is vested witli exclusive jurisdiction, in preference to any other Justice, to hear all complaints, and to conduct all examinations in criminal cases, except in case of absence or inability. It is his duty, also, to preside in all Courts of Special Sessions held in the said city. Warrants may be is- sued by otlier Justices in criminal cases, but they must be made returnable before the Police Justice. If, upon the re- turn of such a warrant, or of one issued by the Police Justice, he should be absent, or unable to act, a Justice of the Peace, upon proof of the fact, may proceed thereon.' In the village of Sa/ratoga Springs, a Police Justice is elect- ed every two years," who possesses the same powers in aU criminal cases and proceedings, and is subject to the same duties and liabilities, as Justices of the Peace in towns.' He presides in all Courts of Special Sessions held in the said vil- lage. It is his duty to attend to all complaints of a criminal nature that may be brought before him. His office is ren- dered vacant by his removal from the village. He receives, in lieu of fees, an annual salary of $300. Nothing contained in the act establishing his office is to be construed so as to affect the jurisdiction of any Justice of the Peace of the county of Saratoga.' No Justice of the Peace, judge, or other magistrate, residing or keeping an office in said village, is bound to render any services, or entitled to receive any fees, in criminal proceedings, except in the following cases : In cases of felony, if the complainant proves that the Po- lice Justice is absent, or unable to attend, the officer to whom the application is made is bound to issue a warrant for the ap- prehension of the offender, and is entitled to receive the fees allowed to magistrates for like services. The warrant in such cases is to be made returnable before the Police Justice, who is to conduct the subsequent proceedings thereon. In cases of offences less in grade than felony, the complainant, before the officer is bound to act, and before he can receive any fees for his services, must prove that the Police Justice has been ■> Laws of 1860, chap. 263, title 9, §§ 201 to 263. • Laws of 1845, ohap. 291 'Laws of 1848, chap. 21. Md.§§8toT. POLICE JTTSTIOES, Am) THEIK JDUISDICTIOIJ-. 523 sick, or absent, or otherwise unable to perform the duties of his oflGice, for the space of two days. The fees received by other officers for services rendered by them in criminal cases during his absence, are to be deducted from the salary of the Police Justice. He is to keep an account of his services ren- dered in all cases of felony. In cases where the complainant is adjudged to pay costs, he is to tax for his services the fees of Justices of the Peace in similar cases, which, when collect- ed, are to be placed to the credit of the said town, to be ap- propriated to the payment of his salary.* In the city of /Schenectady/, a Police Justice is elected every four years, who has all the powers, and is required to dis- charge all the duties of Justices of the Peace, in criminal cases; and, for all offences triable before him, he has the power to sentence and commit the offender to the county jail, at hard labor, for a period not exceeding six months. He has cognizance of all complaints and prosecutions for the vio- lation of any city by-law or ordinance. He is prohibited from performing the duties of a civil magistrate. He may be removed by the common council for wilful neglect or mal- conduct, after having had an opportunity to refute the charges against him. The common council of the city are invested with power to enact such laws and ordinances, not repugnant to the Constitution or State laws, as they may deem necessary for the effectual suppression of immorality, gaming, drunken- ness, fighting, and riotous and disorderly conduct ; to prevent and restrain any riot, rout, noise, disturbance or disorderly assemblage, in any tavern, grocery, street, or place within said city ; to restrain disorderly persons ; to regulate the rate of speed, and prescribe rules for warning persons of the approach of locomotives in said city ; to prevent the blowing of steam whistles, and the unnecessary interruption of the passage in the streets within said city; and to protect and preserve the public property of said city, and the property of the inhabitants thereof; and to punish all violations of any of the by-laws or ordinances of said city, by fine, not exceed- ing one hundred dollars, the offender to stand committed until > Laws of 1846, chap. 206. 524 NBW-TOEK JUSTICE. such fine and costs be paid, (but such commitment not to exceed six months,) or by imprisonment in the county jail, at hard labor, or not, in the discretion of the Police Justice, for a period not exceeding six months, or by both such fine and imprisonment. The Police Justice of the said city is vested with power and authority to impose such fine, and order such commitment, and sentence to such imprisonment, under any such by-laws or ordinances, and to carry such judgment of commitment and imprisonment into effect, by a warrant of conviction under his hand, to be issued to the keeper of the county jail.' In addition to the persons enumerated in section one, of title two, of chapter twenty, of the first part of the Eevised Statutes," all habitual drunkards who hang about taverns, groceries or oyster cellars in said city, are declared to be va- grants. In addition to the persons enumerated in section one, of title five, of chapter twenty, of the first part of the Pevised Statutes,' all persons who actually abandon their wives and children in the said city, or who refuse or neglect to provide, according to their means, for their wives or children, are de- clared to be disorderly persons. Whenever complaint is made to the said Police Justice, of the violation of any of the by-laws or ordinances of the said city, it is his duty to examine the complainant on oath, and any witness he may produce ; and, if it shall appear from such examination, that any by-law or ordinance of the said city has been violated, the Police Justice must issue a war- rant under his hand, in the name of the mayor, recorder, alderman and commonalty of the said city of Schenectady, reciting briefly the accusation, and commanding the oflicer to whom it shall be directed, forthwith to take the person accused, and bring him before such Police Justice, to be dealt with according to law ; and such warrant may be exe- cuted at any place within the county of Schenectady, and may be executed out of said county on its being properly endorsed.' When the person so accused is brought before the Police Justice, he has power to proceed forthwith to hear • Laws of 1848, chap. 166, §§ 8, 9. > id. 688, § 1. a 2 K. 8. 682, § 1. * Laws of 18i8, ohap. 155, § 11. POLICE JUSTICES, AlTD THEIE JUEISDICTION. 525 try and determine the complaint or prosecution ; or he may, if he deems the ends of justice require it, adjourn the hear- ing or trial thereof, for a period not exceeding fifteen days ; and he may, in his discretion, commit the accused to the county jail until such day, or suffer him to go at large on giving bail.' If it appears, upon the trial of any complaint before the Police Justice, that the accused was complained of and pro- ceeded against without probable cause, and with intent to injure and harrass, the said Justice, or 'the jury trying the cause, may render a verdict for costs against the complain- ant, upon which judgment must be entered ; and, unless a bond is given for the payment of such costs within thirty days, the Justice must issue an execution against the property and person of the complainant, who must stand committed for a period not exceeding sixty days, unless he satisfies such judgment and pays the costs of his commitment.'' Other Justices of the Peace and magistrates, either within, or within three-fourths of a mile of the said city, cannot receive any fees, nor are they bound to render any services in criminal cases, except when the Police Justice is absent, or unable to perform his duties.' The Police Justice is to render a quarterly statement of the complaints, prosecutions and convictions had before him, the sentences thereon, what fines were imposed, and what fines or other sums of money have been received by him.* His salary cannot be less than five nor more than eight hundred dollars a year.' ifTeither the common council, nor any of the oflicers of the city, have power to stay the execution of any judgment or sentence imposed in pursuance of any of its by-laws or ordi- nances ; nor to release, remit, or discharge, in whole or in part, any such judgment, fine or sentence; nor, in any other manner whatever, to control or interfere with the same. If the Police Justice is unable from any cause to discharge the duties of his office, the common council may appoint some person to discharge the duties of his office, during his ina- ' Laws of 1848, chap. 165, § 12. « ii § IT. 2id.§13. »id-§18. Mi §16. 526 NEW-TOEK JUSTICE. bility. If his office becomes Tacant, the common council are to appoint some person to fill the vacancy, who will hold his office till the next charter election, and until a successor is elected, and duly qualified to serve.' In the city of Syracuse, there is a Police Justice, who is elected for the term of four years, and who enters upon the duties of his office on the first Monday of January next after his election.' A vacancy in his office is filled by a special election.' Xo Justice of the Peace in said city, except in the first ward, can receive any compensation for his services in criminal proceedings cognizable before the Police Justice, unless performed during the illness or absence from the city of the Police Justice. The Police Justice may be associated with Justices of the Peace, in the same manner as any Jus- tice of the Peace may be, and for the same purposes, and with the same effect.* In the city of Troy, one of the Justices of the Justices' Court is designated by the common council to act as Police Justice. His term of office is one year. When the duties of his office are too onerous for him to perform, he may call to his assistance either of the other Justices of the said Justices' Court. The Police Justice, and such other Justice as he may call to his aid, have authority to hear and determine charges for crimes and offences within the said city of Troy, in the cases enumerated in section first, article first, title third, chapter second of the fourth part of the Revised Statutes ; ' and also all complaints and charges against any person for the commission of any of the acts or offences designated in the first section of title fifth, chapter twentieth, of the first part of the Revised Statutes ; ° and, upon the conviction of any such offender, they have the power to punish by fine, not exceeding fifty dollars, or by imprisonment in the county jail, not exceeding six months, or by both such fine and im- prisonment. iLawsof lM8,chap. 155, §§20, 21. , < Laws of 1849, chap. 2S6. ' Laws of 1847, chap. 4TS, tlUe 2, J 21. • 2 R. S. ill, § 1. Mi §23. 'id. 688,51. POLICE .roSTICES, AND THEDES JUKISDICTION. 527 When any person charged with any of the offences men- tioned in the sections of the Ile%dsed Statutes above referred to, is brought before the said Police Justice, or the as- sisting Justice, it is his duty forthwith to hear, try and determine such complaint or prosecution, according to the provisions of the Revised Statutes first above cited, whether the person charged with the offence request to be tried or not ; and no other Court or magistrate has jurisdiction to try such person for such offence. The Justice may adjourn the trial for a period not exceeding fifteen days, unless, for good cause shown, he may deem a longer time necessary for the purpose of obtaining material testimony, either on the part of the people or the accused; which time cannot ex- ceed ninety days. The accused may, in the meantime, be committed to jail, or suffered to go at large upon executing the proper bond. The Police Justice is to charge and receive his fees for the use of the city of Troy. Fines received by him are to be accounted for to the city chamberlain.' Warr rants issued by other magistrates are to be made returnable before the Police Justice, who is to proceed thereon, and to receive the same fees thereon as he would have received had the warrant been issued originally by him.' In the city of WilUamsburgh, there is a Police Justice, who holds his office for three years. He has no jurisdiction in civil actions, except in actions or proceedings which may be brought for a violation of any of the ordinances, by-laws or regulations of the said city, or of the board of health of the said city, where the penalty shall not exceed $250 ; in all of which cases, the Police Justice, and each of the Justices of the Peace of the said city, have, possess, and exercise jurisdiction to hear and determine the same. He has the same powers and jurisdiction, and is subject to the same du- ties and liabilities, in criminal cases and proceedings, and in eases of vagrancy and of disorderly persons, as Justices of the Peace of the said town. He has jurisdiction, also, to hear all complaints, and to conduct all examinations in criminal cases in said city, and to try all criminal cases, as a Court of Spe- 'LawB0fl849, chap. 340, S§lto8. Mi §26. 528 NEW-TOEK JUSTICE. cial Sessions, that may by law be tried by a Justice of the Peace, or by a Court of Special Sessions, in said town. He is required to attend to all complaints of a criminal nature, and for violations of the city ordinances, which may be brought before him. His removal vacates his ofiBce; and, whenever a vacancy occurs, either by death, resignation, or removal, the same is to be filled by some person ap- pointed by the common council, who is to possess all the powers, perform all the duties, and be entitled to the sam^g- compensation, as the Police Justice, and to retain his appoint-' ment till a Police Justice is elected and duly qualified to fill the vacancy. In case of the sickness or absence of a Police Justice, his duties and powers devolve upon the mayor ; when both are sick or absent, the acting mayor performs his duties.' He is not entitled to receive any fees for his own use, but is to be paid out of the city treasury such annual salary as the board of finance may determine. He is to keep a record of all the costs and fines received by him, and to render the same, duly verified, quarterly, to the supervisors of Kings county. Other Justices of the Peace are prohibited from ex- ercising criminal jurisdiction in the said city.'' CHAPTER II. or THE CRIMINAL JURISDICTION OF JUSTICES OF THE PEACE GENERALLY. Having thus considered the jurisdiction, powers, and duties of Police Justices in the several cities and towns in which those officers are to be elected or appointed, we come now to the consideration of offences cognizable before Justices of the Peace generally. » lawB of 1861, chap. 91, title 6, §§ 1 to 3. Mi § T. GENEEAl POWEES. 529 1. GENERAL POWERS. Originally, Justices, as we have seen,' were Conservators of the Peace, and they were called Guardians, Wardens, or Keep- ers of the Peace. The statute of Si Edward III., chapter 1, gave these Conservators the power of trying felonies, and they then acquired the more dignified and honorable appellation of Justices." The laws of New- York confer upon Justices of the Peace both civil and criminal jurisdiction. They must reside in the town for which they were chosen, and a removal therefrom forfeits their office.' Their civil jurisdiction is limited, with certain exceptions, to the town for which they were chosen, but their criminal jurisdiction is co-extensive with the boundaries of the counties in which they reside.' But a Justice, although possessing unlimited criminal jurisdiction in his own county, cannot exercise that jurisdiction without the bounds of his county. His warrant, even, is of no eifect in a foreign county, unless it be properly endorsed ;° and it is presumed that no Justice has the right to migrate from his own to a foreign county, and there receive complaints and issue warrants for the apprehension of criminal offenders. This point, however, is perhaps not to be regarded as settled, for it has been re- marked by an able writer on criminal jurisdiction, that, so far as the nature of the offence is concerned, the jurisdiction of a Justice, for the purpose of receiving complaints and issuing warrants to apprehend offenders, is without limit.' Biit, with- in his own county, it is his right, both at common law,' and by statute,' to issue his warrant for the arrest of any offender. And, if the offence was committed in his own county, and the criminal has escaped, it is, nevertheless, the right and duty of'the Justice to issue process for his arrest." In England, if a criminal, escaping from the county in which his offence was committed, come into another county, a warrant for his arrest may be issued in the county where he maybe found." In our own State, this last point has not been * Ante, p. 1. " Barbour's Criminal Law, 485. ' 1 Blackstone's Oomm. 361. ' 4 Blaokstone's Oomm. 290. « 1 E. S. 102, § 12 ; 9 VTendeU, 819, S23. « 2 E. S. TOO, § 3. * id. • id. §§ 1 to 5. ' 2 E, S. TOT, § 6. "1 Chitty'a Criminal Law, 84 ; 1 Hale's P, . C. 580. 63 630 HEW-TORK JUSTICE. SO strongly asserted. It was remarked by Mr. Justice Bron- son, in The People t. Nevins^ that possibly a Justice might issue process when the offender was in his coiinty, although the crime was committed elsewhere ; but the Court said they were inclined to a different opinion, and that it was not then necessary to settle the question. In the Supreme Court of the United States, in the case of Holmes v. Jennison' the question whether a State can deliver up an individual found within its territory, to a foreign gov- ernment, to be there tried for offences alleged to have been committed against the latter, received a most searching and de- liberate investigation, and a majority of the Court decided ad- versely to the exercise of such a power. In that case, the prisoner was the subject of a foreign power, and had tied into the State of Vermont from Canada, where he had been in- dicted for murder. He was arrested by a warrant issued by the governor of Vermont. A habeas corpus, to inquire into the cause of his detention, was issued, upon the return of which the Supreme Court of Vermont decided that the war- rant was a good and sufiScient cause in law for the detention and imprisonment of the prisoner. A writ of error was taken to the Supreme Court of the United States, which was dis- missed in consequence of an equal division of the judges. The prisoner sued out another writ of habeas corpus, returna- ble before the Supreme Court of Vermont, upon which he was discharged. The j udges of that Court were satisfied, after an examination of the opinions of the Justices of the Federal Court, that the power claimed to deliver up the prisoner did not exist.^ A similar decision was arrived at in Pennsylva- aiia.'' These decisions indicate the duty of a magistrate when a complaint is made before him against a subject of a foreign ,eountry for an offence against the laws of that country. He ,has no power to entertain the complaint, except in a case where such power may be specially conferred upon him by law in regard to fugitives from justice from a country between which and the United States a treaty of extradition exists. There is at present no such case. • 1 Hill, 164 ' Id. 598, note ; 1 Brookenbrough, 493. " 14 Peters, MO. * 10 Sergeant & Eawie, 12B. GENEEAIi POWEES. 531 TliG Constitution of the United States provides, that a per- son charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.' In the thirty-third section of the act of Congress, entitled, "An act to establish the Judi- cial Courts of the United States," it is provided, that for any crime or offence against the United States, the ofli'ender may, by any Justice or judge of the United States, or by any Jus- tice of the Peace, or other magistrate, of any of the United States where he may be found, agreeably to the usual process against offenders in such State, and at the expense of the United States, be arrested, and imprisoned or bailed, as the case may be, for trial before such Court of the United States as, by that act, has cognizance of the offence." Under this act, it has been decided that a State magistrate may commit, for further examination, an offender charged with a crime against the United States.' A statute has been passed in this State which authorizes Justices of the Peace to issue process for the apprehension of a person charged in any State or Territory of the United States with treason, felony or other crime, who shall flee from Justice, and be found within this State.* This power of Justices of the Peace to arrest fugitives from justice, will be considered more fully and particularly hereafter. All Justices of the Peace, unless restricted by special stat- ute, have power to issue process for the apprehension of per- sons charged with any offence ; ' and all that seems necessary to confer jurisdiction is, that an offence should be committed in the county where the Justice resides, and a complaint against the offender be preferred." Besides this general authority to arrest offenders, with which Justices of the Peace are invested, there are other pow- ers conferred upon them, relating to criminal matters, which it is proper briefly to enumerate. They are Conservators of the Peace, and, by virtue of their authority as such, they may > Constitution U. S. Art. iv, sec 2. * Laws oflSSS, chap. 850, § 1. ' 1 U. S. Statutes at Large, 91. » 2 B. 8, T06, § 1, ' 5 Oo-wen, 278. • ii §§j2, 5. 532 NEW-TOEK JTJSTIOB. apprehend or cause to be apprehended, without issuing writ- ten process, any person threatening to kill or beat another, or to commit any offence against his person or property.' "When any violation of the act prohibiting profane cursing or swear- ing," or of the act relating to the disturbance of religious nieetings,^ or of the act concerning the observance of Sunday,' takes place in the presence of a Justice of the Peace, he must cause the offender to be brought before him, and must pro- ceed summarily to inquire into the facts, and the conviction of the offender by the Justice is final and conclusive.' It is not necessary, to give jurisdiction to a Justice in whose pres- ence a violation of the last named act has occurred, that a process should be actually issued." A single magistrate may exercise his jurisdiction xipon Sunday, when it is necessary in criminal cases, to preserve the peace or to arrest offenders.' It is provided by statute, that indictments for murder may be found at any time after the death of the person killed, and that, in all other cases, indictments shall be found and filed in the proper Court, within three years after the commission of the offence ; " but that the time during which the defendant shall not have been an inhabitant of, or usually resident within this State, shall not constitute any part of the said limitation of three years." This provision determines the limit, in point of time, of a Justice's jurisdiction in receiving a complaint and issuing a warrant for any offence which is indictable, and also in holding a Court of Special Sessions for the trial of an offender." There are, however, various special provisions in regard to the time within which a prosecution must be insti- tuted, an indictment found, or a conviction had, in particular cases, which will be noticed in their proper places. As re- gards the mode of computing the time limited by any statute, it is provided, that whenever the term " year " or " years " is used in any statute, the year intended shall be taken to con- sist of 365 days ; and the added day of a leap year, and the day immediately preceding, if they shall occur in any period 1 2 K. S.;706, § 8; 1 Halo's P. C. 86. « 10 Wendell, 877 ; Post, Part III, Oiap. VII. a 1 E. S. 6Tt ' 2 E. S. 275, § 7. » id. 0T5. » id. 720, § 87. * id. 676. •id. » Id. 67T. 10 Bartour's Criminal Law, 490. APFEATS AND RIOTS. 633 SO to be computed, stall be reckoned together as one day/ " Month" or " months," when used in any statute, means a calendar, and not a lunar month, unless otherwise expressed." When, in a statute, the time is to be computed from an act done, the day on which the act was done must be excluded in the computation.^ 2. AFFRAYS AND RIOTS. Justices of the Peace also possess great powers for the pur- pose of quelling affrays and riots. By the common law, eve- ry private person may lawfully endeavor, of his own authority and without any sanction or warrant of a magistrate, to sup- press a riot by every means in his power.' Justices of the Peace are bound to do all that in them lies for the suppression of a riot, and they have authority to command the assistance of all persons whomsoever above the age of fifteen years, ex- cepting clergymen, women, and persons disabled by infirmity.' And it is not left to the choice or will of the bystanders, to attend or not to the call of the magistrate, as they think prop- er ; but every man is bound, when called upon, under pain of fine and imprisonment, to yield a ready and implicit obedi- ence to the call of the magistrate, and to do his utmost in as- sisting him to suppress any tumultuous assemblage." In the case of a riot, especially, a Justice possesses almost unlimited powers to secure the arrest of the rioters. He may command their arrest orally, and the person thus commanded may pur- sue and arrest the rioters, even out of the presence of the Jus- tice.' And generally, in cases of felony, breaches of the peace, and affrays of every kind, when a Justice is present, he may in his own person apprehend the offenders, or by word of mouth command any one to arrest them ; and such command, thougli unwritten, is good as a warrant.' 3. CONTEMPTS OF COURT. In the following cases, and in no others, a Justice of the Peace, for the preservation of the dignity of his Court, and 1 I E. 8. 006, § 3. Md. 187. > id. § 4 9 id. 261. s 2 Cowen, 618, 605; 6 id. 659; 3 Denio, 12. ' 2 Hales P. C. 114. < 5 Carrington & Payne, 261. ' id. 86 ; 11 Johnson, 486. 534 NEW-TOEK JUSTICE. for the safe exercise of his powers, is authorized by statute to punish, as for a criminal contempt, persons guilty of the fol- lowing acts :' 1. Disorderly, contemptuous or insolent behavior towards such Justice, while engaged in the trial of a cause, or in the rendering of any judgment, or in any judicial proceedings, which shall tend to interrupt such proceedings, or to impair the respect due to his authority ; 2. Any breach of the peace, noise, or other disturbance, tending to interrupt the official proceedings of the Justice ; 3. Eesistance, wilfully offered by any person, in the pres- ence of a Justice, to the execution of any lawful order or pro- cess made or issued by him. The powers of a Justice are ample to repress and punish all disorderly behavior by which the progress of proceedings be- fore him may be impeded, whether the offender be a party, his counsel, or a bystander ; and self respect, as well as a due regard for the administration of justice, imperiously demand that those powers should be used, and order be enforced with a firm and steady hand. Justices may at all times rely upon the countenance and favor of superior tribunals, in the due command and vigorous enforcement of good order while con- ducting their proceedings ; and, as all necessary powers have been conferred upon them for Uhis purpose, they should know and feel that they alone are justly responsible for its observ- ance.'' Punishment for a contempt may be by fine, not exceeding twenty-five dollars, or by imprisonment in the county jail, not exceeding five days, or both, in the discretion of the Jus- tice. But no person can remain in prison more than ten days for the non-payment of such fine.' No person can be punished for a contempt before a Justice until an opportunity has been given him to be heard in his defence ; and, for that purpose, a Justice may issue a war- rant to bring tli6 offender before him." "Where a person used abusive and reproachful words to a Justice relative to his judicial conduct, though not while 1 2 K. B. 2T8, §274. s j e. 8. 2T3, § 2T5. a8HUl,828. « id. § 8T6. CONTEMPTS OF COUET. 535 he was acting as a Justice, and the Justice, after the person had left his office, issued a warrant commanding him to be taken and committed to jail, until he should find sureties for his appearance at the next general Sessions, and for his good behavior in tlie mean time, and the party was arrested, but immediately discharged, it was held, that the Justice had power to require the offender to find surety for the peace and for his good behavior, and, in default thereof, to commit him, and that that part of the warrant requiring him to be com- mitted to jail in the mean time, not having been executed, might be rejected, and the warrant be good as to the residue.' If the offender be actually present, the Justice need not issue a warrant, but he should arraign the person, and state to him particularly the character of the offence with which he is charged ; and, if no satisfactory defence is made, the Jus- tice may impose a fine, or make out a warrant for the com- mitment of the person to jail, or both. Care should be taken to afford him an opportunity to be heard in his defence, as the language of the statute to that effect is impei-ative. Mr. Justice Cowen says, that as this power is necessarily an arbitrary one, the Justice should proceed with great cau- tion and prudence. He should bear in mind, that he is not engaged in vindicating his own character or reputation, so much as in promoting the respect due to the proper adminis- tration of the laws, and to the Court of which he is an officer. This consideration alone should induce him to receive as sat- isfactory any reasonable apology for the offender's conduct ; but if he refuse to render such an apology, the Justice should not hesitate to infiict upon him such punishment as he may deem commensurate to the offence committed.' I^either the justice nor the propriety of a commitment for a contempt, made by a Justice according to law, can be inquired into upon the return to a writ of habeas corpus or certiorari, if the contempt be charged in the commitment." § 83. Wa/rrant of Arrest for Contempt. County, ss : To any constable of the said county, greeting : 1 10 Johnson, 893. s 2 B. S. 568, § 42. » 2 Cowen'8 Treatise, 868. 536 ITEW-TOEK JUSTICE. "Whereas on [state the day^] during the trial of a cause be- tween John Doe, plaintiff, and Richard Eoe, defendant, [or whatever the proceeding may have been,] before me, J. H. B., a Justice of the Peace in and for the said county, at my ofiice in [name of town or oity,] in said county, W. Y. was guilty of contempt towards me, the said Justice, while thus engaged in the trial of said cause, [or other proceeding^ by speaking to, of and concerning me, as such Justice, and in my presence and hearing, these disorderly, contemptuous and insolent words : [here insert the words verhatim, or state the contempt exactly :\ These are, therefore, to command you, in the name of the people of the State of New-York, to appre- hend the said "VV. V., and to bring him before me at my office in said city, [ or, town,] to answer for the said contempt, and to be further dealt with according to law. Given under my hand. [Datei] J. li. B., Justice of the Peace. If the offender, upon being brought before the Justice, and having the charge distinctly stated to him, does not make a satisfactory explanation, the Justice may convict him of the contempt. Upon convicting any person of a contempt, the Justice must make up a record of such conviction, stating therein the particular circumstances of the offence, and the judgment rendered thereon, which must be subscribed by him, and filed in the office of the county clerk within ten days after its date.' The record will necessarily be varied to suit the cir- cumstances of the case and the character of the contempt. § 81. Record of Conviction. County, ss : Be it remembered, that on [state the day,} during the trial of a cause between John Doe, plaintiff", and Richard Roe, de- fendant, [or whatever the proceeding may have ieen^ before me, J. IT. B., a Justice of the Peace in and for the said coun- ty, at my office in [jiarne of toton or city,'] in said coimty, W. V . was guilty of contempt towards me, the said Justice, while thus engaged in tlie trial of said cause, [or other proceeding,'] by speaking to, of and concerning me, as such Justice, and in my presence and hearing, these disorderly, contemptuous and in- solent words : [here 'insert the words verbatim, or state the con- tempt precisely /] and the said W. V. having been brought before me to answer for the said contempt, and having had > 2 E. s. 273, § an. CONTEMPTS OF COUET. 537 an opportunity to be heard in his defence, and not having made any sufficient defence against a conviction for said con- tempt, I do hereby convict the said W. Y. of the said con- tempt, and do adjudge that he pay a iine of \_not exceeding twenty-JJve dollars^ and also that he be imprisoned in the county jail for [not exceeding five days.'] "Witness my hand this [(kite.'] J. H. B., Justice of the Peace. This record must be filed, -within ten days after its date, in the county clerk's office.' The Justice must then make out a warrant of commitment, vfhich must set forth the particular circumstances of the of- fence, or it will be void." If only a fine is imposed, and that is paid, no warrant of commitment is necessary ; but if the fine is not paid, or if imprisonment is imposed as a part of the punishment, the warrant will be necessary. § 85. Warrant of Commitment for Contempt. County, ss : To any constable of the said county, and to the keeper of the county jail of said county, greeting : "Whereas "W. V. has this day been convicted by and before me, J. H. B., a Justice of the Peace in and for the said coun- ty, of a contempt committed by him, the said "W. Y., on [state the day,] during the trial of a cause between John Doe, plaintift', and Eichard Eoe, defendant, [or whatever the pro- ceeding may have hee7i,] before me, at my office in [name of town or city,] in said county ; which contempt consisted in [here transcribe tlie contempt as set out in the record of conviction^ and the said "W. Y. having been brought before me to an- swer for the said contempt, and having had an opportunity to be heard in his defence, and not having made any sufficient defence against a conviction for said contempt, and I having convicted the said W. Y. of the said contempt, and having thereupon adjudged that he pay a fine of [as in the record of conviction^ and also that he be imprisoned in the county jail for [as in the record of conviction •] and whereas the said W. Y., although he has \i%e of the State of iNg-yv-York ^ommand you to search^jthe^place where the said property is^suspected to be concealed,)!^ the day time, [or, as well in the night time, as in the day time,] and that you bring the same before me. Witness my hand and seal this day of 18 . J. H. B., [l. s.] f""^^ officer receiving the warrant must strictly pursue its directions, and he will be protected only in seizing the prop- erty specified. Therefore, in a case where a warrant was granted authorizing sugar to be taken, and the officer took, not only the sugar, but teas and nails also, he was found >B.S. 267, §§232,2^. 542 NEW-TOEK JUSTICE, guilty of trespass with regard to the property not specified.' With respect to the mode of executing the warrant, if the outer door of the building be shut, and, upon demand, be not opened, it may be broken open ; ' and so may boxes, after the keys have been demanded ; and, though the goods be not found, the officer will be justified.' The officer should take care that his character and name are known and understood. No precise form of words is necessary. It is sufficient that a party has notice that the officer comes, not as a trespasser, but claiming to act under a proper authority.* If the warrant has been legally and regularly issued, and properly executed, it is a protection to those who execute it, against an action of trespass." The statute does not authorize a Justice to incorporate in a search warrant an order for the arrest of the person in whose custody the goods may be found ; but if such a direction is inserted, it will not vitiate the warrant. A search warrant, under the hand and seal of a Justice, reciting information on oath that certain goods de- scribed therein have been stolen by A. and B., and are concealed in the house of C, and commanding the officer to whom it is directed to enter the said house in the day time, and search for the articles stolen, and to bring them with C, or the per- son in whose custody they shall be found, before the Justice, >igsaUBjL2^ij^,i£iX-,--s>;:^.2^g^ If, on the return of the warrant Hbefore the Justice, it appears that the goods were not stolen, they are to be restored.' If they were stolen, they are to be delivered to the owner, on proof of his title, and upon the payment of the reasonable and necessary expenses incurred in their preservation.' The party who had the custody of the goods is to be discharged, if they were not stolen. If they were stolen, not by him, but by another person, who sold and delivered them to him, and it appears that he was ignorant of the mode in which they were procured, he may be discharged, but ought to be > 8 Esplnosso, 96. » 6 Wendell, 888. >1 Chitty'B Criminal Law, 66; 10 Johnson, 'lO Johnson, 268. 268. ' 1 Chitty'B Criminal Law, 67; 2 Hale's P = 1 Chitty's Criminal Law, 66; 8 Espinasse, 0.161. / •? jij) '^ 185 ; 2 Bosanquet & Puller, 160. e 2 E. S. ;4T. § 82. y2 A/ ^ // c ' ' « FoBter'fl C. 0. 187. 3 ^'^^ '- ' ^^7- C^'^-~'- SEAECmNG PEISONEES. 543 bound over to give evidence as a witness against the person who sold them. If it appears that he knew the goods were stolen, then he should be committed as for a felony, if the taking of the goods originally was felonious ; for, as has been well observed, there is a probable cause of suspicion that he was at least an accessory after the fact.' If the original offence was a misdemeanor, the party should be bound over to answer the charge, or be bailed, as the case may require. If the original offence was punishable by a summarj^ convic- tion, the party, should be proceeded against summarily." ''^^ SEARCHING PRISONERS. Any magistrate who shall commit to prison any person charged with any offence, or by whom any vagrant or dis- orderly person shall be committed, may cause such person to be searched, for the purpose of discovering any property he may have ; and, if any property be found, the same may be taken and applied to the support of such person while in confinement.' 7. STOLEN PROPERTY. If stolen property comes into the custody of any Justice of the Peace, it must, upon satisfactory proof of the title of any owner thereof, be delivered to him, on his paying the reason- able and necessary expenses incurred in the preservation of such property, to be certified by such Justice.* When property alleged to have been stolen comes into the custody of any constable, marshal, sheriff or other person au- thorized to perform the duties of any such ofiice, he must hold the same subject to the order of the magistrate who shall take the examination of the person accused of stealing it. The magistrate may order it to be delivered to the person offer- ing satisfactory proof of title to the property, on the payment of the reasonable and necessary expenses incurred in its pres- ervation, to be certified by the magistrate.' J 2 Hale'a P. C. 151; 1 Chitty's Criminal ' 2 E. S. 745, § 29. Law, 67; Dunlap'a Justice, 871; Barbour's < id. T47, § 82. Criminal Law, 502. ' id. 746, §§ 80, 81. Md. 544 NEW-TOEK JUSTICE. If property stolen shall not have been delivered to the owner thereof, the Court before which a conviction shall be had for the stealing of such property, may, upon proof of its ownership by any person, order it to be restored to him.' If stolen property is not claimed by its owner before the expira- tion of six months from the time any person shall have been convicted of stealing it, the magistrate, sheriff, constable, or other officer or person having the same in his custody, must deliver it to the county superintendents of the poor, on being paid the reasonable and necessary expenses incurred in its preservation, to be appropriated , to the use of the poor of the county." CHAPTEE III. OF PROCESS FOR THE ARREST OF OFFENDERS. Iisr issuing process for the arrest of offenders, as well as in performing various other duties devolving upon him, a Jus- tice of the Peace is said to act ministerially • and it is when acting ministerially, that the greatest caution and prudence are requisite. For errors committed in his judicial capacity no action will lie against him ;' but if he errs while acting ministerially, he is responsible to i^e party injured.' And corrupt motives need not be charged against him, in order to make him liable ;' but, when they are charged, the question whether they existed or not should be submitted to the jury." When a Justice acts partially or oppressively, from malicious and corrupt motives, he is liable to indictment.' If a Justice issues a warrant against the putative father of a bastard child, on the application of any other person than the overeeers of 1 2 E. S. 747, § 83. stock, 464. = Id. § 85. '1 Donio, 5S9. ' 3 Oiilncs, 170 ; 10 Wendell, 102 ; 11 Id. 545 ; '6 Cowen, 661. 1 Denio, 587. ' 15 Wendell, 277 * 2 Johnson's Oases, 49 ; 3 id. 84; 8 Com THE COMPLAINT. 545 tHe poor, lie issues it without authority, and, acting ministeri- ally, is liable to the party arrested, notwithstanding a subse- quent assent by the overseers to the proceedings.' The rule as to' the liability of a Justice is, that when he has no jurisdiction whatever, and undertakes to act, his acts are coram nonjudioe and void, equally as if he were not a Justice. If he has jurisdiction, then his erroneous acts are not void, but voidable only by a direct proceeding to correct tliem. In the former case, he is personally liable ; in the latter not.'' A record of conviction, however, cannot be questioned or trav- ersed in a collateral action ;' and, if it appears that the Justice had jurisdiction, and proceeded regularly, it is conclusive, and a bar to any suit against him for anything adjudged by him and within his jiirisdiction." But if the record is interposed as a defence, it is competent to show that the magistrate had not jurisdiction of the person against whom the conviction is sought to operate.' 1. THE COMPLAINT. It is provided by statute, that Justices of the Peace shall have power to issue process for the apprehension of persons charged with any offence ;" and it is a familiar principle of law, that where a statute gives a Jijstice jurisdiction of an offence, it impliedly gives him authority and power to appre- hend any person charged with the commission of such offence.' The first step to be taken, in order to procure the arrest of an offender, is to prefer a complaint before a Justice. This complaint may be preferred against any one ; for all persons are equally liable to arrest in criminal cases.* Even the ex- emption in favor of females does not extend to arrests for criminal offences ;" nor do the various statutory exemptions in favor of witnesses,'" voters at elections," and ofiicers and members of the Legislature. '^ 1 10 Johnson, 93. 68; 10 Modern Eep. 24a !■ IT id. 146 ; 19 id. 39 ; 8 Cowen, 209 ; 7 Wen- « 4 Blackstone's Comm. 290 ; Dunlap's Jns- dell, 200. ace, 25. s 8 Johnson, 51. » 2E. S. 428, § 9; 1 Chitty's Criminal Law ■• 19 id. 41. 12. Md. i» 2 E. 8. 402, § 48. • 2 E. S. T06, § 1. " Laws of 1842, chap. 130. ' 1 Chitty's Criminal Law, 84; 2 Bingham, " 1 E. S. 154, § 6. 36 546 NEW-TOEK JUSTICE. It is said by Blackstone, and repeated by other writers upon criminal law, that no man is to be arrested unless charged with such a crime as will at least justify holding him to bail when taken.' The statute and the common law authorize the arrest and holding to bail for the commission of almost every supposable offence, and it is presumed that but few cases can arise in which a magistrate, in arresting an offender, would overstep the bounds of his authority, because of the offence not being such a one as would justify the holding to bail. As private persons who are present when a felony is com- mitted, are bound to arrest the felon," so it is the common duty and right of every citizen to prefer an accusation against a party whom he suspects to be guilty." And not only is a citized entitled to prefer an accusation against a party sus- pected of a crime, but he , is bound, by the strongest obliga- tions both of reason and of law, to exert the power with which he is invested." The citizen, if an injury is inflicted upon him, may forgive it, and thus perform an act of good nature and humanity, but contrary to the good of the public. He may dispense with satisfaction for his jirivate injuries, but he cannot remove the necessity oi public example.' The object of criminal proceedings is not vengeance for the past, but safe- ty for the future, and to the furtherance of this design every man is bound to contribute." Nor need a complainant fear to communicate his suspicions to a magistrate, for the law ensures to him all due protection in the discharge of his duty.' This point has been frequently adjudicated, and it may now be regarded as settled, that a complainant is not liable in an :action for damages at the suit of the party complained of or indicted, unless his proceedings were both actuated by malice and destitute of probable cause.* But, if the complainant makes the law an instrument of persecution, and a mere engine of .oppression, he becomes liable to the party injured, in an action on the case for malicious prosecution." M BJaotatone's Comm. 2S9 ; '1 Dunlap's 'id. 10. Justice, 25 ; Barbour's Criminal Law, 580. « id.; 9 East, 361 ; 1 Campbell, 199 ; 10 John- = 4 Blackstone's Comm. 298 ; 1 Chitty's Crlm- son, 166 ; 7 Cowen, T15 ; 1 Wendell, 140 ; 2 De- inal Law, IT ; 11 Johnson, 486. nio, 6ir ; 8 Washington's 0. C. K. 31 ; 1 Amer- s 1 Chitty's Criminal Law, 2. lean Leading Oases, 211. * ill. 3. • id.; 1 Chitty's Criminal Law, 10; 2 John- = 4 Blackstone's Comm. 864. son, 208 ; 21 Wendell, 281. " 1 Chitty's, Criminal Law, 8. THE COMPLAINT. 547 The complainant, then, appearing before the magistrate, his examination and that of the witnesses whom he may produce, are to be taken on oath.' And, as it is upon the complaint, and the testimony adduced in its support, that the warrant for the apprehension of the offender is predicated," it becomes the duty of the magistrate to consider carefully all the circum- stances sworn to, and the behavior of the witnesses upon the examination, and to scrutinize the motives which the prosecu- tor by his conduct evinces.' It should be his object to ascer- tain, as well that a felony or other crime has been committed, as also the cause and probability for suspecting the party against whom the warrant is prayed.' There has been some difference of opinion as to whether a person who is disqualified from being a witness in a civil ac- tion, can prefer a complaint before a magistrate, itpon which be can legally issue a warrant. Mr. Chitty observes, that those persons are disqualified from becoming prosecutors, who, either from religious scruples or infidelity, which ren- ders them incapable of taking an oath, or from infamy, which presumes them to be unworthy of credit, are disqualified from being witnesses." In ISTew-York, the Constitution provides that no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief ;° so that Mr. Chitty's first objection is obviated. In respect to the second objection, it is apprehended that no decision can be found which authorizes a Justice to refuse to hear a com- plaint, because the person preferring it has himself transgres- sed the law ; and it has never been decided that the statutes of Ifew-Tork disqualifying as witnesses persons convicted of felony,' apply to oaths on applications for such warrants. In the language of Ch. J. Holt, before whom the reading of an afii- davit was objected to, for the reason that the person making it had stood in the pillbry : " Must he, therefore, suffer all injuries, and have no way to help himself ? "° Infants also may be sworn," it being necessary for the ma- 1 2 E. 8. T06, § 2. • ConBtitution of 1846, Art. i, se »id.§8. '2E.S. 681, §1; Jd.T01,i23. ' 1 OMtty's Criminal Law, 84 » 2 Salkeld, 461. ■• 4Blaok6tone'B Comm. 290. » 10 Massachusetts Eep. 225, ' 1 Chitty'a Griminal Law, 2. 648 NBW-TOEK JUSTICE. gistrate, however, to be satisfied that the child has a proper sense of the nature of an oath and of the consequences of falseliood." But, if the prosecutor or witness is non combos mentis, or deranged, he is incompetent." As acts done by a person in a state of insanity cannot be punished as offences, the Justice, if a complaint is made against one whom he knows to be insane, instead of issuing his warrant against him as an offender, should see that proper steps are taken under the statute to secure him.' The oath to the complainant and witnesses may be as fol- lows: § 88. Oath of Complaincmt, or of Witness on Complaint. You do swear in the presence of Almighty God, that you will true answers make to such questions as shall be put to you, touching this complaint against C. D. The statute does not require that the statement of the com- plainant and his witnesses should be reduced to writing, but such appears to be the proper course, and is strongly advised by several wiiters.* A Justice obtains a great advantage by reducing the examination to writing, for, if prosecuted, he can show an examination on oath, and, if that confers jui-isdiction, and authorizes the issuing of the warrant, trespass will not lie.= E'er does the statute require that the complaint should be in writing ;° but, if so made, it should contain a positive charge against the offender. If the complaint is for a felonious taking of property, the value of the property, and the place where the offence was committed, should be set out.' i The following forms will answer for the complaint, care be- ing taken to charge in them, accurately and positively, the of&nce committed: ^ Cio-y^.JxjL^u^^ ^. f>z. did make an assault upon her, the said A. B., [or, one E. P.,] and did then and there unlawfully, feloniously, and against her will, take her, the said A. B., [or, take the said E. P.,] with the intent to compel her by force, [or, menaces, or, duress,] to marry him, the said E. D., [or, one L. M. ; or, with the intent that she should be defiled.] Sworn, &c., [as in § 86.] § 108. Cornplaint for taking Female under Fourteen Years of Age from her Pa/rent or Guardian. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E. I), did unlawfully and feloni- 554 NEW-TOEK JUSTICE. ously take away one M. B., a female infant under the age of fourteen years, from the said A. B., her father, [or, guardian, duly appointed, and having the legal charge of her person,] without his consent, for the purpose of prostitution, [or, con- cubinage, or, marriage.] Sworn, &c., [as m § 86.] § 109. Gomplamtfor Mayhem or MaimAng. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one K. D., from premeditated de- sign, and by lying in wait for the purpose, did unlawfully and feloniously assault the said A. B., and did then and there put out one of the said A. B.'s eyes, [or, one R. D. did unlawfully, violently, maliciously and ieloniously, assault the said A. B., with intent to kill [or, rob] him, and did then and there slit the nose of the said A. B.] Sworn, &c., [as in § 86.] § 110. Corrvplaintfor Child Stealing. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E. D. did feloniously, mali- ciously and forcibly, [or, fraudulently, if no force was v.sed^ take, [or, lead,] and carry away, [or, decoy, or, entice away,] one K. B., the child of the said A. B., and under the age of twelve years, with intent to detain and conceal the said child from the said A. B. Sworn, &c., [as in § 86.] § 111. Complaint for Abandoning Child. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did feloniously expose and leave a certain child, named E. D., under the age of years, of which child said K. D. was the father, [or, which child had been confided to the care of the said E. D.,] with intent wholly to abandon the said child. Sworn, &c., [as in § 86.] THE COMPLAINT. 555 § 112. Comjglaint for Shooting at, or Attempting to Shoot at, with Intent to Kill, Hoi, or Maim. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E. D. did feloniously shoot at liim, the said A. B., with a certain gun, loaded with gunpow- der and lead, with intent to kill him, the said A. B., [or, did feloniously present and level at the said A. B., a pistol, loaded with gunpowder and lead, and attempt, by drawing the trigger thereof, to discharge the same at the said A. B., with intent to kill [or, rob, or, maim] him, the said A. B.] Sworn, &c., [as in § 86.] § 113. Complaint for Assault with Deadly Weapon, with Intent to Kill. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one K. D. did feloniously, with and by means of a certain deadly weapon, to wit, an axe, then in his hands, make an assault upon the said A. B., and him, the said A. B., did then and there, with the said deadly weapon, beat and ill-treat, with intent to kill him, the said A. B. ; [or, did, with and by means of his hands, feet and fists, and by such force as was likely to produce death, feloniously assault and beat the said A. B., with intent, &c., as abovel] Sworn, &c., [as in § 86.] § 114. Complavnt for Poisoning Food. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E. D., with intent to injure and kill one M. B., and divers other persons, did maliciously and feloniously mingle a certain poison called arsenic, with certain food, [or, drink, or, medicine,] in order that the same might be taken by the said M. B., and other persons. Sworn, &c., [as in § 86.] § 115. Complaint for Poisoning Well. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E. D., with iment to injure and kill one M. B., and one or more of the members of his family, 556 NBW-YOEK JUSTICE. and divers other persons, did maliciously and feloniously mingle a certain poison, called arsenic, with the waters of the well belonging to the said M. B., and situate near his dwelling house, to which the said M. B. and the members of his family, and divers other persons of the said town, were used to resort for the purpose of obtaining water for drinking and culinary purposes, in order that the said poison, so mingled with the waters aforesaid, might be taken by the said M. B., and one or more of the members of his family, and divers other persons. Sworn, &c., [as m § 86.] § 116. Complaint for Assault, with Intent to Rob, or Commit Bttrgla/ry. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did feloniously make an assault upon the said A. B., with intent to commit robbery upon the said A. B., by feloniously taking the money of the said A. B. from his person, by violence thereto, and against his will ; [or, with intent to commit burglary in the dwelling house of the said A. B., situate in the town of .] Sworn, &c., [as in § 86.] § IIT. Complaint for Burglary. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E. D. did feloniously and bur- glariously break and enter the dwelling house of the said A. B., situate in the said town, by picking the lock of the outer door thereof, [or, by breaking the fastening of one of the window shutters thereof, or, by unlocking the outer door thereof, by means of false keys,] with intent to steal, take and carry away, from said dwelling house, divers goods and chattels therein, belonging to the said A. B. ; the wife and family of the said A. B. being at the time in said dwelling house ; [or, with intent to rob the said A. B. of his goods and chattels, in his presence and against his will, by force and vio- lence to his person, he the said K. D., being at the time armed with a dangerous weapon, to wit, with a pistol ; and the said A. B., and his family, being in the said dwelling liouse.] Sworn, &c., [as in § 86.] THE COMPLAINT. 657 §118. Complaint for Felony and Burglary in S/wp. County, ss : A. B. of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E.. D. did feloniously and bur- glariously break and enter the shop of the said A. E. by [descrihe the fnanner,] being within the curtilage of the dwell- ing house of the said A. B., there situate, but not forming Dart thereof, [as in § 117 to the end, omitting the allegation in "egard to the family heing present.'] Sworn, &c., [as in § 86.] § 119. Complaint for Burglary in entering Store. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said County, one E. D. did feloniously and bur- glariously break and enter the store of the said A. B., there situate, by [describe the manner^ in which goods and mer- chandize were then kept for sale, with intent feloniously to steal, take and carry away, the goods and chattels of the said A. B. therein, to wit, the goods and merchandize aforesaid, or some part or portion thereof. Sworn, &c., [as in § 86.] §120. Complaint for Constructive Burglary. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E. D. did feloniously and bur- glariously break and enter the dwelling house of the said A. B., situate in said town, by knocking at the outer door thereof, and demanding to speak with the said A. B., and, upon the said A. B. opening the door for that purpose, rushing and entering into the said dwelling house, with intent to rob the said A. B. of his goods and chattels, in his presence and against his will, by force and violence to his person ; the said A. B. and his family being at the time in said dwelling house. Sworn, &c., [as in § 86.] §121. Complaint for Forgery. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E. D. did falsely and feloniously forge and counterfeit [or, alter] a certain paper writing, 558 NBW-TOEK JUSTICE. being, or purporting to be, a will [or, deed,] by whicb a right or interest in real or personal property was, or purported to be, transferred, with intent to defraud the said A. B., [or, a certain paper writing, purporting to be a certificate of the ac- knowledgment of the execution of a certain deed or convey- ance from the said A. B. to S. T., of certain lands situate in said county, before one G. H., a Justice of the Peace ; which said deed or conveyance was of a nature, or proper, to be recorded according to law, with intent to defraud the said A. B. ; or, did falsely and feloniously make, forge and counter- feit, a certain promissory note, purporting to be the promis- sory note of the said A. B., for the payment of dollars to C. D., thirty days after date, with intent to defraud the said A. B.] Sworn, &c., [as in § 86.] § 122. ComplaintfoT Passing, or Offering to Pass, Counterfeit Bank Notes. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E. D. did feloniously sell and ex- change, [or, offer to sell and exchange,] to and with the said A. B., for a valuable consideration, to wit, the sum of ten dol- lars in silver coin, [or, goods and merchandize of the value of ten dollars,] two forged and counterfeit negotiable notes, com- monly called bank notes, purporting to be the promissory notes of, and to have been issued by, the Bank, for the pay- ment of the sum of five dollars each ; he, the said K. D., well knowing the said bank notes to be forged and counterfeited, and with the intent to deceive and defraud the said A. B. Sworn, &c., [as in § 86.] § 123. ComplaintfoT Altering or Counterfeiting Bank Notes. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E. D. did feloniously counterfeit, [or, counterfeit and alter,] a certain bank or promissory note, purporting to be the promissory note of,' and to be issued by the Bank, for the payment of the sum of ten dollars, [if the charge is for altering a note, insert here : in such a man- ner as to make the same resemble and purport to be a bank or promissory note for the payment of the sum of one hundred dollars,] with intent to defraud the said bank, or some person or persons, or body politic or corporate, to this deponent un- known. Sworn, &c., [as in % 86.] THE COMPLAINT. 559 § 124. Complaint for Obtaining Property ly a False Tolcen, or ly Falsely Personating Another. County, 8s: A. B., of said county, being duly sworn, says,* that on the day of instant, [w, last past,] at the town of , in said county, one E. D. did designedly, falsely, and feloniously, by color of a certain false token or writing, [or, counterfeit letter,] obtain from the said A. B., certain goods and chattels, of the value of dollars, to wit : [desorihe the property;'] [or, did falsely and feloniously personate and represent himself to be one C. D., and did then and there, and in such assumed name and character, obtain a certain horse of the value of dollars, intended to be delivered to the said 0. D.] Sworn, &c., [as in § 86.] § 125. Complaint fm^ Obtaining Money, or Property, by False Pretences. County, ss : A. B., of said count3^, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did designedly and felo- niously, and by the false pretence that he, the saidK. D., was sent and authorized by one C. D., [or, that he owned a farm, containing one hundred acres, or thereabouts, situate in the town of , in said county, free of all incumbrances ; or, that he was worth dollars, after the payment of all his debts and liabilities ; o?', that he owned and was possessed of personal property to the value of dollars, and was not a householder, or man of family, whereby the same would be exempt from execution against him ; or, that he was en- tirely free and clear from all debts and liabilities, of every name and description,] demand and receive [or, obtain on credit] from the said A. B., a large sum of money, to wit, the sum of dollars, [or, goods and merchandize of the value of dollars,] with the intent to cheat and defraud the said A. B. Sworn, &c., [as in § 86.] § 126. Complaint for Robbery. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E.. D. did violently and feloni- ously make an assault upon him, the said A. B., and, by put- ting him, the said A. B., in bodily fear and danger of his life, 560 NEW-TOEK JUSTICE. did then and there steal, take and carry away, &c., [descrihe property taken.'] Sworn, &c., [_as m § 86.] § 127. Complaint for Embezzlement. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one E. D., being a servant, \or, clerk,] of the said A. B., and not being an apprentice, nor within the age of eighteen years, did feloniously embezzle, and convert to his own use, without the consent of the said A. B., [describe property^ belonging to the said A. B. Sworn, &c., \asin § 86.]. § 128. Complwi/iit fm" Receiving Stolen Goods. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, \oi\ last past,] at the town of , in said county, one E. I), did feloniously receive or buy, of one 0. P., certain goods and chattels, to wit : [dtscribe the property^ he the said E. D., well knowing the said goods and chattels to have been feloniously stolen and taken from him, the said A. B. Sworn, &c., \as in § 86.] § 129. Complaint for Perjury. County, ss : A. B., of said county, being duly sworn, says,* that in a cer- tain action at law, tried on the day of instant, \or, last past,] at the town of , in said county, before H. E. F., Esq., one of the Justices of the Peace of the said county, in which the said A. B. was plaintiff and one C. D. defendant, the said Justice having jurisdiction over the said action, and full power and authority to try the same, and to administer oaths to all witnesses sworn upon such trial, one E. D. was produced as a witness on the part of C. D., the de- fendant aforesaid, and was duly sworn to speak the truth, etc., [follow the language of the oath administered :] and that the said E. D., being interrogated as such witness, whether the said A. B. was at the dwelling house of tlie said C. D., on the day of ) 18 , which inquiry was material and pertinent to the issue joined in the action aforesaid, did then and there, to wit, at the time and place aforesaid, falsely, wilfully and corruptly, depose and swear, that the said A. B. was at the dwelling house of the said C. D., on the said THE COMPLAINT. 561 day of ) 18 , whereas, in truth and in fact, the said A. B. was not at the dwelling house of the said C. D., on the said day of , 18 ; whereby the said R. D. did then and there, to wit, at the time and place aforesaid, wilfully and corruptly swear falsely, and commit wilful and corrupt perjury. Sworn, &c., [as in § 86.] § 130. Complaint for Bigamy. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D., being then married to M. D., did wilfully and feloniously marry and take to wife, one E. B.; the said E.. D. well knowing that his said former wife, M. D., was then living and in full life. Sworn, &c., [_as in § 86.] §131. Complaint for Marrying the Wife of Another. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did knowingly, unlawful- ly and feloniously, marry, and take to wife, one M. R., she being then married, and the wife of R. R. Sworn, &c., [as in § 86.] § 132. Complaint for Malicious Mischief. County, ss : / A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did wilfully and mali- ciously administer to a certain horse, the property of the said A. B., a certain deadly poison, called arsenic, by mixing the same with the food of the said horse. Sworn, &c., [as m § 86.] ■ ■ ^ ■ '//Yilaint for Selling Unwholesome Food. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town ot , in said county, one R. D. did knowingly, unlaw- fully and wickedly, sell to one M. B., a quarter of lamb, which had become tainted and unwholesome. Sworn, &c., \_as in § 86.] § 139. Complaint for Distv/r'bing a Religious Meeting. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, \or, last past,] at the town of , in said county, one R. D. did wilfully and unlaw- fully disturb, interrupt and disquiet, an assemblage of people, collected for the purpose of religious worship, by loud and profane discourse, \ot, by rude and riotous noises ; or, by rude and indecent behavior.] Sworn, &c., \as in § 86.] The Justice, after the complaint is drawn up, should read it to the complainant, or he should read it himself. K the Justice reads it to him, it is proper to note that fact at the foot of the paper. Then it is to be signed by the complain- ant, and the Justice should add the jurat in the usual man- ner. It may appear, after the complaint is made and the wit- nesses are examined, that there is no direct and positive proof that the person complained of committed the offence, though its commission be fully proved. It must, at all events, be clearly proved that an offence has been committed, before suspicion can justly attach to any person.' The statute makes it the duty of the Justice, (or other magistrate,) if it appears that an offence has been committed, to issue his warrant to arrest the party accused." It may happen, however, that the 1 6 Howard's Praa Eep. 110. " 2 E, S. 706, § 8. 56i NBW-TOEK JtrSTTCE. testimony does not bring home the offence directly to any person, but merely raises a suspicion that a particular indi- vidual committed it. Such cases are not rare, and it then be- comes the duty of the magistrate to judge of the reasonable- ness of the suspicions. He ought not, as has been before ob- served, to grant any warrant groundlessly, or without such probable cause as would induce a discreet and impartial man to suspect the party to be guilty.' But the examination of the prosecutor may disclose such seemingly j ust and reason- able grounds, that the magistrate may well make the suspi- cions his own. It becomes important, therefore, to state what the principal grounds or causes of suspicion are, which will justify the arrest of a supposed offender, even if it should ul- timately appear that he was innocent. The following causes, it seems to be admitted, will justify such arrest:" The common fame of the country. But it seems that it ought to appear by the evidence, in an action brought for such an arrest, that such fame had some probable foundation. 2. The living a vagrant aud disorderly life, without any visible means of support. 3. The being in company, at the time of the offence, with one known to be an offender ; or, the keeping company gen- erally, at other times, with persons of scandalous reputation. 4. The being found in such circumstances as induce a strong presumption of guilt ; such as, coming out of a house wherein murder has been committed, with a bloody knife in one's hand ; or, being found in possession of any part of goods stolen, without being able to account honestly for them. 6. The behaving in such a manner as betrays a conscious- ness of guilt ; as, where a man, being charged with a treason or felony, says nothing in reply, but seems, by his silence, to own himself guilty ; or, wliere a man accused of any such crime, upon hearing that a warrant is taken out against him, absconds. But generally none of the causes of suspicion above enu- merated will justify an arrest, where in truth no crime has been committed. ° It has been held, however, that a com- » 1 Chltty's Criminal Law, 84. ' id. 2 Dunlai/s JuBtlco,25. THE WAEEANT. 565 plaint alleging a criminal offence on information and belief, without stating any facts, will give a Justice jurisdiction to issue a warrant of arrest, altliougli he grossly errs in exerci- sing that jurisdiction.' The statute authorizing the issuing of '% warrant for the ar- rest of a person accused of crime, is in these words : " If it shall appear, from such examination, that any offence has been committed, the magistrate shall issue a proper warrant, under his hand, with or without seal, reciting the accusation, and commanding the officer to whom it shall be directed, forth- with to take the person accused of having committed such of- fence, and to bring him before such magistrate, to be dealt with according to law." " The name of the county in which the Justice resides should be set forth, either in the body or in the margin of the war- rant.' The warrant must be issued in the name of the people.* It is said that it ought to set forth the year and day on which it is made.' It will be sufficient, however, if the warrant is dated at the end, and a reference made in the body of it, showing that the complaint was made on the day of its date. It must be signed by the Justice, or, as the statute expresses it, be " under his hand." It need not be sealed. It must re- cite the accusation, the statute expressly requiring it ; and, in order that the party arrested may know the nature of the of- fence with -which he is charged, and be able to provide the proper sureties," it should state the offence with convenient certainty, but it need not contain the facts upon which the change made is predicated.' There is another reason why the Avarrant should recite the accusation. The statute, as we shall see hereafter, authorizes the arrest of an offender in an- other county than that in which the warrant was issued, and further authorizes the Justice in such foreign county, who may have endorsed the warrant, to bail the offender, if the offence be not punishable with death or imprisonment in a 1 1 Hon-arrt's Prac. Eep. 899. ' 1 Chittv'8 Crjmjnal La\y,88. 2 2 R, 8. 706 § 3 ; 6 HowaHVs Prac. Eep. 110. » id. 41.-? i ' /^ <« 6 f. 3 1 Ohitty's Criminal Law, 89. ' 1 Hill, 878 ; 5 Balbour, 465. * 2 K. S. 276, § 8. 566 NEW-TOEK JUSTICE. "^^ state prison/ It therefore becomes important to express clearly in the warrant the nature of the offence, in order that the Justice before whom the person arrested shall be brought, may at once ascertain whether he has power to bail him. The name of the person accused must also appear, for he is the person whom the oificer is directed " to take ;" and a blank must not be left for his name to be filled in afterwards.' If the command to the officer be, to arrest all persons suspect- ed of the offence, the warrant will be Toid for uncertainty ; ' and it seems that false imprisonment will lie against a Justice for issuing such a wai'rant.* If the name of the offender be unknown, the warrant may be issued against him by the best description the nature of the case will permit." If the name in the warrant is not the right one, or is fictitious, the arrei?t will be justified if it can be shown that the party arrested was known as well by one name as the other ;' otherwise, if it cannot be so shown.' And finally, the warrant must di- rect the ofiicer to bring the person accused before the m^gis- ^^ iflSiJi&if i)o^^ealt ^ ^ssprdmg^o ja|^' f^ ^^ """ The 26th section of the act of May 10th, 1845, as amended by the 13th section of the act of December 14th, 1847, pro- vides as follows : " "Whenever any criminal warrant or pro- cess shall be issued by any magistrate residing out of the town or city wherein the offence shall have been committed, it shall authorize the ofiicer executing the same, to carry the person charged with an offence under this act, before any magistrate resident and being in the town or city wherein such offence shall have been committed, to be proceeded against according to the provisions of the fifteenth section of this act ; but the magistrate issuing such warrant or process, shall not lose any jurisdiction over the trial and proceedings against any such persons, by reason of anything herein con- tained, nor shall such magistrate be allowed any compensa- tion for any further proceedings in any such case beyond issuing such warrant or process." ° It requires a critical i-ead- 1 2 K. 8. TOT, §§ 6, 8. «8 East, 328; 6 Cowen, 456; T id. 832; 1 2 1 Cbltty's Criminal Law, 89. Wendell, 12G ; S id. 860. 3 Id.; 1 Hale'B P. 0. 680; 4 Elactstono's '4id. 6D5; 9 id. 819. Comm. 291. ' 8 2 jj. s. T06, § 8. * 8 Bum's JuBtloo,428. ' Laws of ISW, chap. 180, § 26, as amended s 1 Oliitty's Criminal Law, 40. by Laws of 184T, obap. 455, § 13. THE WAJSEANT. 561 ing to ascertain the true construction of tliis provision. It is a section of an act entitled, " An act to reduce the number of town officers, and town and county expenses, and to prevent abuses in auditing town and county accounts," and appears to have been inserted in the act with but little reference to the company in which it is placed. It commences with a provision requiring a magistrate who resides out of the town or city wherein the offence shall have been committed, in issuing a criminal warrant or process, to authorize the officer executing the same to carry the person charged with " (wi of- fence under this act,^'' before any magistrate resident and be- ing in the town or city where such offence shall have been committed, to be proceeded against according to " the fifteenth section of this actP This provision modifies the statute before cited, (2 E. S. 706, § 3,) conferring criminal jurisdiction upon Justices of the Peace, and explains how their authority in a particular instance must be exercised. The act of 1845, re- ferred to, says, that the warrant issued in the case provided for by it, " shall authorize" the officer executing it, to carry the person charged with any offence under the act, before a magistrate resident and being in the town or city where such offence shall have been committed. This was not required or practised before. It was sufficient before, as we have seen, to give the Justice j'™'sdiction, that the offence should have been committed in his county. Then he could make the warrant returnable before himself Now, however, in cases like the one given, he must make the warrant returnable be- fore a magistrate resident and being in the town or city where such offence shall have been committed. But this new provision is not of universal application. It applies only when the offence is charged '•'■under this act^'' that is, the act of 1845, containing the section. The ques- tion, then, naturally arises what offences can be charged " under this act ; " or, in other words, when must the warrant be made so returnable. The act itself contains no enumera- tion of specific offences, and relates particularly to the sub- jects embraced in its title. It does not allude to any offences, either generally or by name, nor does it mention any class or grade of offences. In looking further into the section, it will 568 NEW-TOEK JUSTICE. be perceived that the person charged with the offence is to be proceeded against by the magistrate before whom he is brought, " according to tlie provisions of the fifteenth section" of the act. That section provides, that " Courts of Special Ses- sions of the peace shall be held by a single magistrate now authorized to sit as a member of a Court of Special Sessions, and all offences now triable before such Courts, may be tried by such single magistrate, with or without a jury, at the election of the prisoner ; and all provisions of law now appli- cable to the powers, duties and proceedings of such Courts, shall apply to such magistrate, and the proceedings before him." In view, therefore, of the provisions £>i this fifteenth section, the answer to the question proposed seems to be this — that where the person charged ca?i be proceeded against and tried by the magistrate acting as a Court of Special Sessions, or, in other words, where his offence is among those enumerated as within the jurisdiction of Courts of Special Sessions, then his offence is "under this act," and the warrant must be made returnable as directed. If, on the contrary, the offence is one not within the jurisdiction of a Court of Spe- cial Sessions to try, then it would seem to be one not " under this act" and that the Justice issuing the warrant must make it returnable before himself. The second clause of the 26th section of the act of 1845, also deserves consideration. It is this : " But the magistrate issuing such warrant or process shall not lose any jurisdiction over the trial and proceedings against any such persons, by reason of anything herein contained." This seems to imply that the Justice issuing the warrant shall retain his jurisdic- tion over the trial and proceedings against a person charged with an offence "under this act." But, the magistrate before whom the warrant is returnable, is to proceed against the person charged, according to the provisions of the fifteenth section. When, then, is the Jiistice issuing the warrant to proceed and try the offender ? It cannot be that the statute contemplates a concurrent exercise of jurisdiction over the same offence by the two Justices ; and it is presumed that the second clause was inserted for the purpose of saving the jurisdiction of the Justice issuing the warrant, when, for THE -WARRANT. 569 any reason, the magistrate before whom it is made returnable cannot proceed thereon. If the magistrate before whom the warrant is returnable is absent, then it is supposed the pris- oner may be brought before the Justice who issued the war- rant, and that he may proceed thereon. The intention of the statute, taking the last clause of the section into considera- tion, seems to be, that the Justice, in case an offence is charged triable by a Court of Special Sessions, must issue a warrant, returnable before a magistrate of the city or town in which the offence was committed ; and that, if he neglects so to do, he shall not receive any compensation for any fur- ther proceeding in the case beyond the issuing of the war- rant or process. If a statute reqxiires a warrant of arrest to be executed by a constable of a particular town, and the Justice directs it to any constable of the county, and delivers it to a constable of a different town, and he executes it, both the Justice and the constable are liable for false imprisonment.' The warrant must be executed by " the ofBcer to whom it shall be di- rected," ' and it may be directed to the sheriff' of the county or to any constable of the county ; ' but it seems that, in Eng- land, if an Act of Parliament direct that a Justice shall grant a warrant, and does not state to whom it shall be directed, it must be directed to the constable, and not to the sheriff, unless such power be given by the act.' Constables being the proper officers for the purpose, the warrant may be directed to any constable of the town, who has a right to exe- cute it in any town in the county, his territorial jurisdiction '. M^.& co;extengye^-yi^ha^f ^t^^^ieri|r.;4^^5£;7^-^ /' ^ Forms for warrants are here given to accompany the most usual complaints. Those to accompany the more unusual complaints are not given, for the reason that no difficulty can be experienced in preparing them from the forms inserted below. It is only necessary to insert in the general form of warrant, (§ 140,) the precise language of the complaint, com- mencing at the word " that" after the * in the form of the > T Cowen, 269. «id. = 2E.S. TU6,§3. '6 0owen,64T. 3 Chitty's Criminal Law, 38. 570 NEW-TOEK JUSTICE. complaint, and concluding with the command to arrest, as in the general form of warrant. Where the word deponent occurs in the complaint, the name of the individual deposing should be inserted in full in the warrant. / /^ ffe_ '/J/^f: -'-"-^^^ ^-^■^^'^Y §140. Oeneral Form, of Warrcmt. County, ss : To any Constable of the said County, greeting : Whereas, A. B. has made complaint, upon oath, before me, J. H. B., one of the Justices of the Peace of the said county, on this day of j 18 , that, &c., [state the offence as in the complwint ;] Therefore, the People of the State of IS'ew-York command you forthwith to appreFend^the said I^. D., and bring him before me, at my office, in the town' of , in said county, [or, if the offence was committed in a/nother town, and is triable before a Court of Special Ses- sions, say : take him before S. T., Esq., or any other magis- trate resident and being in the town of ,] to be dealt with according to law. Witness my hand, this day of 18 . J. H. B., Justice of the Peace. § 141. Warrant for Assault and Battery. Town of , ) County, j" ^^• To any Constable of the said County, greeting : Whereas, A. B. hath this day made complaint, upon oath, before me, J. H. B., one of the Justices of the Peace of the said town, that on the day of , 18 , at the town of , in said county, one C. D. did violently assault and beat him, the said A. B.: Therefore, the People of the State of New-York command you forthwith to apprehend the said 0. D., and bring him before me, at my office in the said town of , [or, change the form as in § 140, if the of- fence was committed in another town, and is triable Ixfore a Gowrt of Special Sessions^ to be dealt with according to law. Witness, [as in % 140.] § 142. Warrant for Orand or Petit Larceny. County, ss: To any Constable of the said County, greeting : Whereas, A. B. has made complaint, upon oath, before me, J. H. B., one of the Justices of the Peace of the said county, that on the day of > 18 , certain pei-sonal SERVmO THE 'WAJJEAST. 571 property of the said A. B., to wit : \descnh6 property as in the complaint,'] of tlie value of dollars, or upwards, was stolen and feloniously taken from his dwelling house in the town of , in said county ; and that he suspects that C. D. did steal and take the same as aforesaid : Therefore, &c., \_as in §140, to the end.'] CHAPTER ly. OF THE EXECUTION OF THE WAREANT. 1. SERVING THE WAREANT. The warrant is supposed to be directed to a constable, and if so, it must be executed by him.' If directed to all consta- bles generally, any constable may execute it, at any place within the jurisdiction of the Justice." The first duty of the constable is, to see that the process is regular on its face ; and hence it becomes important for him to know what constitutes a regular process. A process may be said to be regular on its face, when it contains no intima- tion that there was a defect of jurisdiction in the Court out of which it issued, either as to the subject matter, or the person of the defendant, and when the subject matter is apparently within the jurisdiction of the Court.^ If any such defects ap- pear by the process, it is no protection to the officer.^ If no such defects appear, the process is regular on its face, and will protect the officer.^ If the subject matter be within the jurisdiction of the Court, but there is a want of jurisdiction as to the person or place, yet unless the want of jurisdiction ap- pears by the process, the officer who executes it is no trespasser." • 1 Chitty's Criminal Law, 48. <■ 10 id. 133 ; 5 Wendell, 231, 240 ; 6 id. 86T ; 2 6 Oowen, 64T. 13 id 3T9 ; 24 id. 485 ; 5 Hill, 440 ; 2 ComBtook, » 5 Wendell, ITO; 3 Barbour, 19. 4T3. * id.; 12 Johnson, 257; 15 id. 152. " 5 Wendell, ITO ; 8 Bartonr, 18. 572 NEW-TOEK JUSTICE. (1.) Arrest. The process, then, being regular on its face, the oiBcer should, as soon as he conveniently can, proceed with secresj to arrest the party.' And he should notify the party of his authority ;'' though it seems a regular officer is not bound to exhibit his authority or process.' No manual touching of the body, or actual force, is necessary to constitute an arrest and imprison- ment. It is sufficient, if the party be within the power of the officer, and submits to the arrest." After the party is arrest- ed, the officer, if required, is bound to inform him of the sub- stance of the warrant or process.' The constable should carefully observe the command of the warrant with respect to the person to be arrested. If he take a different person from the one named, he will be a trespasser.' If he arrest a person of a different name from that in the war- rant, he will not be protected, unless, as we have seen, the person arrested be the one intended, and be known as well under one name as the other.' The exigency of the process must be obeyed, and the per- son accused must be taken forthwith. The process itself, how- ever, continues in force during the term of office of the mag- istrate who granted it,' and is not vitiated by any delay necessarily arising from the concealment or absence of the party accused. In making the arrest, the constable, or person executing the process, has ample authority, both at common law' and by statute," to command all necessary assistance ; and every per- son wilfully and unlawfully disobeying any such command is guilty of a misdemeanor." In illustration of the power of those who are thus commanded to assist an officer in the exe- cution of process, the following case may be valuable. A sheriff, having a warrant to apprehend several persons, who had riotously assembled together, and committed an assault. > 1 Ohltty's Criminal Law, 4T. ' Ante p. ; 8 East, 828 ; 6 Cowen, 466 ; T a id. 51. id. 832 ; 1 Wendell, 126; 9 id. 819. » 1 Eussell on Crimes, 516 ; 1 Wendell, 215; « 1 Ohltty's Criminal Law, 50. 10 id. 514; 2 Ilill, 86. ' 1 Oliitty'B Criminal Law, 49. * 1 Wendoll, 215. i» 2 E. S. 441, § SO ; id. 746, § 23. " 2 Hill, 66. " id. • 1 Chitty'8 Criminal Law, 60. AEEEST. 573 came to the house where they were assembled, and being re- sisted and unable to make the arrest, commanded A., and certain others of the bystanders, to guard the house in which the persons were assembled, and prevent their escape, while he went to the next town, about four miles distant, t* get a sufficient force to execute the warrant. Under these circum- stances, it was held, that A. and the others were bound to as- sist the sheriff, on his order or summons, in preserving the peace and apprehending the offenders ; and that the sheriff was to be deemed constructively present, so as to justify A. and the others in arresting the offenders during his tempora- ry absence for the purpose of procuring further assistance.' If the accused be already in prison on a civil charge, the proper course seems to be for the officer to leave the warrant with the jailer, who, on the termination of the civil imprison- ment must send for a constable to take the party before the Justice ; and then the same proceedings are to be had as in other criminal cases. If the party is already in jail on a crim- inal charge, and fully committed for trial, the Justice is to hear the complaint and, if it is sustained, send a warrant of detainer to the jailer. Such seems to be the English practice." Under certain circumstances the constable may break open windows and doors, in order to make an arrest under a mag- istrate's warrant.' But, before proceeding to that extremity, there should be a notification of the officer's authority and business, and a demand to enter, and a refusal." In case of a felony actually committed, it seems that the officer may not only break open the doors, but may kill the felon, if he cannot otherwise be taken.' And, if the accused leave his own dwel- ling, and fly to the house of a third person for refuge, the doors of the latter may be broken open." The rule that every man's house is his castle, does not apply in criminal cases.'' And it may be regarded as settled, that where a minister of justice comes armed with process, founded on a breach of the peace, he may break open doors." Where there is an affray 1 10 Johnson, 85. » 4 Blackstone's Comm. 292 ; 1 Chittj-'s Crim- 2 1 Chitty's Criminal Law, 48, 49. inal Law, 54. » id. 54 ; 4 Blackstone's Comm. 292 ; Foster's « id. 67. 0. 0. 196, 820. ' Foster's 0. 0. 820. * id. 320 ; 1 Eussell on Crimes, 62T. » id. 135, 820. 674 NEW-TOEK JUSTICE. in a houae, in the view or hearing of the constable, and man- slaughter or bloodshed is likely to ensue, he may break open doors to keep the peace.' So, where A. let a house, except one roorii, which he reserved for himself, and occupied sep- aratel;^,'and, the outer door of the house being open, a con- stable broke open the door of the inner room occupied by A., in order to arrest him, it was held, that trespass by A. would not lie against the constable." "Where an affray occurs in a house in the view or hearing of a constable, or where those who have been engaged in an affray in his presence fly to a house, and are immediately pursued by him, and he is not suffered to enter, he may break open the doors in order to suppress the affray in the first case, or to apprehend the per- sons committing the affray in either case ; and, if any officer enter into a house to serve any process, civil or criminal, and the doors are locked upon him while he is in the house, he may break them open in order to regain his liberty.^ In respect to the time of making the arrest, it seems it may be made in the night time ;* and the statute authorizes it to be made on Sunday.' (2.) Escape. It is remarked by Mr. Chitty, that, if a constable, having arrested a party under a warrant, suffer him to go at large, upon his promise to come again and find sureties, it is doubt- ful whether he can afterwards be arrested upon the same pro- cess, though it should seem, that as the public are interested in the offender's being brought to justice, there can be no weU founded objections to such second arrest." And it is certain, that if the escape be made without the concurrence of the of- ficer, the defendant may be retaken as often as he flies, upon fresh suit, although he were out of view, or had reached another county or district.' It is also certain, that if, after a depar- ture by permission of the constable, the party return into his custody, he may lawfully detain him in pursuance of his ori- ginal warrant." In New-York it has been decided, that after 1 2 Hale's P. 0. 96; 1 Hawkins' P. C. 13T. » 1 K. S. 675, § 69. ^ 5 Johnson, 852. " 1 CUitty's Criimnal Law, 59. • Dunlap'8 Justice, 80. ' id. « 1 Chitty'fl Criminal Law, 49. » id. EKDOESmO THE -WAEEANT. 575 an escape from an arrest nnder criminal process, the oiScer is bound to retake the prisoner, whether the escape be voluntary or otherwise ; and that the distinction between mesne saiA fi- nal process does not apply to criminal proceedings.' Under this decision, it becomes the duty of the constable to retake the prisoner whenever and however he may escape. It seems that if the constable has apprehended the offender, with or without warrant, for a felony, or a dangerous wound given, or to prevent the commission of a felony, if the party fly to avoid the arrest, or break away after it has been effect- ed, and the officer pursuing him happens to wound or kill him in endeavoring to prevent such escape, if the escape could not otherwise have been prevented, the officer will be protected.^ And, if the person so pursued, turn upon the officer pursuing him and kill him, it will be murder.' In cases where resist- ance is made, the officer having authority to arrest or impris- on may repel force by force, and, if death ensues in the strug- gle, he will be justified." But, if the party flies from an ar- rest, for an offence less than a felony, it seems that the officer is not justified in pursuing and killing him." If the prisoner escape and be retaken, the officer may take him before the Justice of the county where he was first ar- rested ; for he is supposed in law to be always in custody by force of the first arrest." If he escapes or files before the ar- rest into any other county, the duty of the constable is the same as though he were in another county when the warrant was issued ; a contingency which we will now proceed to consider. (3.) Endorsing the Warrant. This is familiarly termed, "Backing the Warrant." The statute provides, that warrants issued by Justices of the Peace, cannot be executed out of the county within which they are officers, unless endorsed in the following manner : If the per- son against whom any warrant granted by any such Justice, shall escape, or be in any other coimty out of the jurisdiction 1 6 Hill, 3M. < id. 271. a 2 E. 8. 660, § 2 ; Foster's C. 0, 2T1 ; Bar- » id. bour'B Criminal Law, 639. • Barbour's Criminal Law, 640. s Foster's 0. C. 272, 576 NEW-TOEK JUSTICE. of Buch Justice, it shall be the duty of any Justice of the Peace within the county where such offender shall be, or shall be suspected to be, upon proof of the hand-writing of the mag- istrate issuing the warrant, to endorse his name upon the same ; and thereupon, the person bringing the warrant, or any other officer to whom it may have been directed, may arrest the of- fender in the county where the warrant was endorsed;' It will be seen that the statute only requires an endorse- ment of the name of the magistrate upon the warrant ; but as that endorsement is only to be made upon_pr(?o/'of the hand- writing of the magistrate issuing it, it is desirable, for the sake of preventing all questions and mistakes, that the Jus- tice should endorse upon the back of the warrant a brief state- ment showing that the hand- writing of the magistrate issuing it has been proven to him on oath. § 143. Form of Baching or Endorsing a Warrant. County, ss: Proof upon oath having been made before me, E. W. B., one of the Justices of the Peace in and for the county aforesaid, that the name of J. H. B., purporting to be sub- scribed to the within warrant, is of the hand-writing of the said J. H. B., the Justice of the Peace within mentioned, I do hereby authorize J. L., the person bringing this warrant, or any other ofBcer, to whom it is directed, to execute the same within the said county of . E. W. B., Justice of the Peace. The statute further provides, that no magistrate shall be lia- ble to any indictment, action of trespass, or other action, for having endorsed any warrant pursuant to the provisions of the section above cited, although it shall afterwards appear that such warrant was illegally or improperly issued." 2. BRINGING UP THE PRISONER. "We have seen that the warrant, as a general rule, commands the officer to whom it is addressed, to take the person accused before the magistrate issuing it,' subject, however, to the excep- tion before remarked upon, {ante,p. 566,) in regard to warrants 1 2 E. B. 707, § 5. "i(L70e,§8. »ld. §6. BEXNGING UP THE PEISONEE. 577 for offences triable by Courts of Special Sessions. But there is a provision of the statute, that in certain cases the person accused may be brought before a different Justice from the one named in the warrant. The language of the statute is : " If the of- fence charged in the warrant be not punishable with death, or by imprisonment in a state prison, and if the person arrest- ed require to be brought before a Justice of the county in which he shall have been arrested, it shall be the duty of the officer arresting him to carry such prisoner before a Justice of the county in which he was arrested.'" The magistrate be- fore whom the prisoner is brought, if the offence is not punish- able with death, or by imprisonment in a state prison, may take from him a recognizance, with sufficient sureties, for his appearance at the next Court having cognizance of the offence, to be held in the county where the offence is alleged to have been committed." If the Justice let the prisoner to bail, he is to certify the fact upon the warrant, and then deliver it, together with the recognizance, to the officer having charge of the prisoner, who must deliver the same, without unneces- sary delay, to the clerk of the Court at which the prisoner shall have been recognized to appear.' If such magistrate refuse to let to bail the person arrested, or if bail is not given, the officer making the arrest, must car- ry the prisoner to the county where the warrant was originally issued, and before some magistrate thereof;* that is, before the magistrate issuing the warrant, or, if he be absent, or his office be vacant, before the nearest magistrate of the same county." And the same course must be pursued, if the offence charged in the warrant be punishable with death, or by im- prisonment in a state prison, and therefore not bailable out of the county where the warrant was issued. If, therefore, an officer arrest, in a foreign county, a prisoner who is charged with the commission of a felony, and take him before the Jus- tice who endorsed the warrant, and he lets him to bail, and releases him from custody, such release is equivalent to a vol- untary escape, and the prisoner may be retaken under the warrant.' /^,- .. . ,. ' '■: • 2 E. 8. TO7, § 8. < id. T08, § 11. 'id. » id. § 12. •id. §9. "eHiUiSit 38 678 NBW-TOEK JUSTICE. "When an officer lias arrested any prisoner on a criminal charge in any county, he may carry him through such parts of any other county or counties as shall be in the ordinary route of travel from the place where he was arrested, to the place where he is to be conveyed and delivered, under the process by which the arrest was made, and such conveyance will not be deemed an escape.' While passing through such other county or counties, the officer having such prisoner in charge is not liable to arrest on civil process, and has the like power to require any citizen to aid in securing such prisoner, and to retake him if he escape, that he has in his own county. A refusal or neglect to render such aid, is as much an oifence, as if the officer were an officer of the county where the aid is required." The prisoner, also, while being conveyed through such county or counties, is not liable to arrest on any civil process ;' and, if he is arrested, all persons concerned in the same, with knowledge of the previous arrest, are answerable as for an imlawful arrest.* When the officer has arrested the prisoner, he is, as soon as possible, to bring him before the proper Justice, and if he is guilty of unnecessary delay, it is a breach of duty.' He may, however, detain a prisoner twelve hours to find a Justice to try the cause." When the accused is brought before the proper Justice, the warrant by virtue of which the arrest shall have been made, is to be delivered to the Justice, with a proper retiirn endors- ed thereon by the officer making the arrest.' If the prisoner is arrested in a foreign county, and not held to bail, the offi- cer must return the warrant to a Justice in the county where it was issued. If he is held to bail in such foreign county, the wan-ant, certified by the Justice holding him to bail, is to be delivered to the clerk of the Court at which the prisoner shall have been recognized to appear.' The officer, it is said, may keep the warrant for his own justification, and need only re- turn to the Justice what he has done in pursuance of its com- mands." This remark, however, does not apply, when the ■1 2 R. 8. T48, § 46. ' 10 WendoU, 514 ' id. 749, § 47. 'a E. S. 708, § 12. "id. 427, §7. 6 Id. 707, §9. * 9 Wendell, 204 • 1 Chltty's Criminal Law, 60. ^ 1 Chltty's Orlmlnol Law, 69. EXAinNATIOK OF PEESONS AEEESTED. 579 statute prescribes a particular person to whom the warrant must be returned. The prisoner having been taken by the officer before the proper Justice, the next step is the examination of the com- plainant, and of the witnesses produced in support of the charge. CHAPTER Y. OF THE EXAMINATION OF PERSONS ARRESTED,, It must be borne in mind,, that an examination, by a Jus- tice, of a charge made against a prisoner, is preliminary to a trial, and is not the trial itself. No matter how clearly the commission of the offence may be proved, no matter how great the magnitude of the crime, the prisoner is still entitled to a trial by his peers. The grade of punishment attached to the crime disclosed by the examination, determines the duty of the Justice as regards the final disposition of the prisoner — whether he shall be committed, bailed, or tried. But, until this question of the final disposition of the prisoner arises, the proceedings upon the preliminary examination, and the duties of the Justice in conducting it, are the same in all cases./-^^"** The examination we shall now consider is supposed to take place in a case where a crime is charged, not bailable by a Justice of the Peace. This supposition is made, for the rea- son that it permits the proceedings subsequent to the exami- nation to be considered in what appears to be their natural order, namely, commitment, bail, and trial. The same pre- liminary examination, however, as has been before remarked, will answer for either of the three modes in which the prison- er may be disposed of; its office being to disclose the magni- tude of the offence, and thus determine the duty of the Justice. 580 HEW-TOEK JXrSTIOE. The statute provides that the magistrate before whom any person arrested npon a warrant shall be brought, shall pro- ceed, as soon as may be, to examine the complainant, and the witnesses produced in support of the prosecution, on oath, in the presence of the prisoner, in regard to the offence charged, and in regard to any other matters connected with such charge, which such magistrate may deem pertinent.' The statute fur- ther provides, that it shall be lawful for any magistrate to whom any complaint may be made, or before whom any pris- oner may be brought, to associate with himself any other magistrate of the same county ; and the powers and duties conferred upon one magistrate by the statute may be execu- ted by the two magistrates so associated.^ The statute requires, also, that the examination of the com- plainant, and of the witnesses produced in support of the pros- ecution, shall be taken as soon as may be. This is not inter- preted, however, so as to preclude the magistrate from tem- porarily committing the prisoner, if such a step is demanded by the circumstances of the case. If, when the prisoner is brought before the Justice, he finds that it is necessary to in- quire further into the case before he discharges or finally com- mits him, he may, from time to time, verbally or by a written warrant, remand him into custody.' If a written warrant be used, it need not state the crime of which the party is accus- ed.^ It is said to be the usual practice to commit from three days to three days by a written mittimus ; though, where the prisoner is remanded for a single day, it may be done by pa- rol.' The time for which a prisoner should be detained for further examination, is a matter resting in a measure in the discretion of the Justice, and he should be careful not to act unreasonably. If he commits for an unreasonable length of time, trespass will lie against him, even though he acts with- out any improper motive." Tie should be governed by the probability of obtaining further evidence, and take into consid- eration the time which must necessarily elapse before the at- tendance of the witnesses can be procured. The prisoner, > 2 K. S. 708, § 13. * id. "1(1.710, §28. 'ii.U. ' 6 Cowon, 278 ; 1 Obltty's Criminal Law, 73. " Bnrliour's Criminal Law, 654. EXAIVnJTATION OF COMPLAINANT AND HIS "WITNESSES. 581 wMle awaiting such furtlier examination, may be continued in the custody of the officer arresting him, or be detained in the Justice's house, or committed to some near safe place of custody till the final examination can be completed.' The following form may be used when the prisoner is com- mitted for further examination : § li4. Warrant of Commitment for Further Exammation. County, ss : To the keeper of the common jail of the said county, greeting: You will receive and safely keep in your custody, for fur- ther examination, AV. V., who is charged before me, a Justice of the Peace of the said county, upon the oath of D. A., with larceny. [i?afo.] J. H. B., Justice of the Peace. The prisoner, on being brought up for further examination, should have read over to him all the examinations and depo- sitions taken on the former examination, and then the addi- tional evidence should be taken." The Justice has, also, as incident to the authority given him by statute, a power to bring before him all persons who ap- pear, either from the statement made by the complainant, or from the magistrate's own knowledge, to be material and necessary witnesses for the prosecution ; and, for this purpose, he may issue his warrant to a constable, requiring him to cause such persons to appear before him and give evidence.' 1. EXAMINATION OF THE COilPLAINANT AND HIS WITNESSES. If there be no necessity for committing the prisoner to await a further examination, and all the material witnesses be present, the Justice must proceed to take the examination on oath of the complainant and his witnesses, in the presence of the pi'isouer." The form of the oath has already been given.* The answers of the complainant and of all the witnesses must be on oath, but, instead of taking the examination first, and then swearing the parties to the truth of the statement, they should be first sworn and then examined." Before reducing I Chitty's Criminal Law, 74. » 2 E. 8. T08, § 13. "^ Barbour's Crimiaal Law, 556. " Ante, p. 548. s 1 Chitty's Criminal Law, 76. • 3 Hill, 808. 582 NEW-TOEK JUSTICE. the examination of the witness to writing, it is advisable for the Justice to hear their narrative in the common way of re- lating events,' and afterwards to take their depositions as near- ly as possible in their own language." The witnesses must be sworn, for, if they are not, the magistrate will be liable to an action for committing the prisoner, if he is ultimately acquit- ted." The statute imperatively requires that the testimony of the witnesses shall be in writing, and be signed by them." At this stage of the proceedings, if an opportunity has not been before afforded for the purpose, the prisoner should be allowed a reasonable time for the employment of counsel. In the zeal which is sometimes manifested to secure the punish- ment of a supposed culprit, the rights which the statute in- tended to secui-e him are entirely neglected. They should be scrupulously guarded, and the Justice who seeks to punish an infraction of the law, should recollect that a supposed offender may be innocent, and that he has, even if guilty, a right to employ counsel, and to cross-examine the witnesses who ac- cuse him— rights which the law will not permit to be wrested from him with impunity." The prisoner has the right to cross-examine the witnesses, either himself or by his counsel,' and their answers should be carefully written down by the magistrate.' The testimony of accomplices should not be refused by a Justice, as it may afford the best proof of the guilt of the ac- cused that can be obtained ; and if the accomplice die before trial, his testimony thus taken by the magistrate can be given in evidence on the trial against the prisoner." A Justice ought not to obtain a disclosure from an accomplice by prom- ising or holding out the hope of a pardon. 2. EXAMINATION OF THE PRISONER AND HIS WITNESSES. Formerly, says Mr. Chitty, the maxim. Nemo tenebatur prodere seipsum, obtained at common law, and the guilt of the prisoner was to be discovered by other testimony than his confessions." Our statiite authorizing his examination is in 1 1 Chltty's Criminal Law, TT. • 1 Ohitty's Criminal Law, 79. 2 8 Hill, 300. ' 1 Hill, 800. » 1 Chitty's Criminal Law, T8. » 8 id. 29G ; 1 Chitty'a Criminal Law, 608. <2K. S. T08, §19. " W. 84 » 1 Hill, 800. EXAMrNATION OP PEISONEE AND HIS WITNESSES. 583 these words : " The magistrate shall then proceed," (after ex- amining the complainant and his witnesses,) " to examine the prisoner in relation to the offence charged. Such examina- tion shall not be on oath ; and, before it is commenced, the prisoner shall be informed of the charge made agamst him, and shall be allowed a reasonable time to send for aM advise with counsel. If desired by the person arrested, his counsel may be present during the examination of the complainant and the witnesses on the part of the prosecution, and during the examination of the prisoner. At the commencement of the examination, the prisoner shall be informed by the magistrate, that he is at liberty to refuse to answer any questions that may be put to him. The answers of the prisoner to the several in- terrogatories shall be reduced to writing by the magistrate, or under his direction. They shall be read to the prisoner, who may correct or add to them ; and, when made conformable to what he declares is the truth, shall be certified and signed by , the magistrate.''^, ^^^;£^r'^^2^^^^'^V **'''''*^ '^'^ €-<^a^^^^ There are two other provisions relative to the examination of prisoners which it is proper to insert here: 1. "Nothing contained in the preceding sections," (tho|ie just quoted,) " shall be construed to require any magistrate before whom a prisoner charged with a misdemeanor shall be brought, to take the ex- amination of such prisoner, except where such magistrate shall deem it material so to do, or where such examination shall be required by the prisoner." ' 2. "It shall not be neces- sary for any magistrate to take the examination of any person brought before him, charged with any offence triable before such magistrate, in any case where such person shall elect to be tried before him ; and the board of supervisors shall not audit or allow to any magistrate any fees or charges for the arrest, examination, commitment or taking bail, of any person charged with an offence, unless such magistrate shall have fully complied with all the requirements of section 26, title 2, chapter 2, part 4, of the Eevised Statutes." ° The 26th sec- tion here referred to is the 61st section of chapter 300 of the laws of 1830, quoted at the close of this chapter. A careful I 2 E. S. T08, §§ 13 to 16. » Laws of 1845, chap. 180, § IT. » Laws of 18S0, chap. 820, § 60. 584 NEW-TOEK JTJSTIOB. reading of these last provisions shows first, that if the offence is t/ridbU by a Justice, and the prisoner elect to be tried, his examination need not be taken ; and second, that if he is charged with a misdemeanor, his examination may be dis- pensed with, unless the Justice shall deem it material, or the prison^shall require it. If the prisoner does not elect to be tried, but requires to be examined, or if his offence is not triable by the Justice, his examination should then be taken." At this stage of the pro- ceedings, a reasonable time must be afforded the prisoner to send for and advise with counsel, if it has not been allowed before. The first duty of the Justice is to caution the prisoner that he is not bound to answer any questions that may be put to him, and that any admission he may make may be pro- duced against him on his trial." And the Justice should be careful to use no improper influence to extort a confession from the prisoner, for, by so doing, he may defeat the very object of his endeavors. If threats or promises, or any in- ducements, are used, and a confession is thereby obtained, it cannot be received in evidence, because of the uncertainty and doubt whether it was not made rather from a motive of fear or interest, than from a sense of guilt.' It is at the op- tion of the prisoner either to disclose his defence, confess his guilt, or remain silent. He himself is made the judge of what it is best for him to do ; and whatever he does, if to be used against him thereafter, must be done voluntarily.* It is the duty, also, of the Justice, to prevent the complainant, and the officers who may have the prisoner in charge, from making any attempts to obtain a confession from him. The officious- ness and misplaced zeal oftentimes manifested by prosecutors and inferior functionaries, cannot be too severely reprimand- ed. If, however, by means of a confession so unduly obtain- ed, other facts are brought to light, they may be proved against the party, though the confession itself is inadmissible.' The examination is not to be on oath,' and, if so taken, it 1 12 Wondoll, 844. < id. 2 2 E. S. T08, § 45 ; 1 Chltty'8 Criminal Law, ^ \ chltty's Criminal Law, 69 ; Davis' Justice, s id.; 4 Blookstono's Comm. 85T ; 2 Hale's P. • 2 E. S. 708, § 14. 0.284. EXAMmATION OF PEISONEE AND HIS WITNTSSSES. 585 may be rejected, if offered against the prisoner on the trial. The reason of this is, that the examination must be entirely voluntary, and, therefore, the prisoner must never be required to swear to it.' He should be allowed to speak freely and voluntarily, and not be pressed to answer, or examined or questioned like a common witness. An examination so ob- tained has been rejected as inadmissible, though nothing like a threat or promise was used.' If the prisoner answers the interrogatories of the magistrate his answers are to be reduced to writing, and then read over to him ; and he may correct or add to them. They are then to be signed, and certified by the magistrate.' The signature of the prisoner is not essentially necessary.* If he refuses to sign the written examination, and makes no acknowledgment of its truth, it cannot be received in evidence.' If more than one person is accused, it is important that the examinations should be separately made; otherwise, an opportunity will be afforded, and probably improved, to prevent any variation in the different statements.' After the examination of the prisoner is completed, his witnesses, if he have any, must be sworn and examined, and he may have the assistance of counsel in such examination.' It is proper to state here, that all the witnesses must be ex- , eluded from the office of the Justice during the examination of the prisoner.' The Justice has power, also, to exclude from the place where such examination is had, while any one witness is being examined, those witnesses whose examination has not yet been had ; and he may cause the witnesses to be kept separate, and to be prevented from conversing with each other until they shall all have been examined.' The evidence given by the several witnesses must be re- duced to writing by the Justice, or under his direction, and be signed by the witnesses respectively." 4/^""^ ^ '7 ''' "*" ,T?he following forms will answer for the examination of the ' Dara' Justice, 74. • 1 Ohitty's Criminal Law, 8 ' Barbonrt Criminal Law, 560. ' 2 E. 8. 708, § 17. •2K.8. 708, §16. / .., ., 7 r-J. « id. § 18. 4 DaTis' Justice, 75. .' •'-''-■■/• " ' •' ^'' » id. « 1 Phillips' Evidence, 115. ' ' "id. 709, § 19. 586 NEW-TOEK JUSTICE. prisoner, of the complainant, and of tlie witnesses for both parties. § Hi.* Prisoner's Examination. _ County, ss: The voluntary examination of "W. Y., taken before me, J. H. B., a Justice of the Peace, in and for the said county, on the day of , 1852, the said W. Y. being charged on oath before me by D. A., with [here set out the offence as in the oonvplaint.'] The said W. Y. having been arrested, and brought before me to answer said charge, and having, before the commencement of his examination, been informed by me that he was at liberty to refuse to answer any question that might be put to him, and having been allowed a reasonable time to send for and advise with counsel, upon his examina- tion now t^ken before me as such Justice, says : [here insert the statement of the prisoner in his own language.~\ Taken before me on the day and year above written. ^ J.H.B., Justice of the Peace. § 145. Examiination of the Oonvplaina/nt and the Witnesses for loth Pa/rties. County, ss: The examination of witnesses taken on oath before me, J. H. B., a Justice of the Peace of the county aforesaid, on the day of , 1852, upon the complaint before me of D. A., chargiag W. Y. \here insert the description of the offence as set forth in the complaint or warrant.'] The said W. v., having been arrested and brought before me to answer such charge, and such examinations being taken in his pres- ence and hearing. The said D. A., on his oath before me, in the presence and hearing of the said W. Y., says, \_here insert the testimony of the cornplainant.'] D. A. Taken before me the day and year first above written. J. H. B., Justice of the Peace. John Poe, a witness on the part of the people, [or, of the said W. Y.,] on his oath before me, and in the presence and hearing of the said W. Y., says : [here insert witness' testi- mony.] John Doe. Taken before me the day and year first above written. J. H. B., Justice of the Peace. DISCHAEGE OF THE PEISONEE. 587 The prisoner or any other person who, during the pendency of these proceedings, insults the magistrate, may be committed for a contempt in the manner already pointed out.' The examination being iinished, the Justice should attach together the complaint, process and depositions, in the order in which they are taken, and safely retain them in his keep- ing until they can be transmitted to the clerk of the court at which they are returnable as hereinafter mentioned." While they remain in the Justice's keeping, he should not permit them to be read by any one not properly authorized." 3. DISCHARGE OF THE PRISONER. If, upon the examination of the whole matter, says the stat- ute, it shall appear to the magistrate, either that no offence has been committed by any person, or that there is no proba- ble cause for charging the prisoner therewith, he shall dis- charge such prisoner.' We cannot better convey to Justices an idea of their pow- er and duty under the section above quoted, than by citing the language of Mr. Justice Bayley : "A magistrate is clearly bound, in the exercise of a sound discretion, not to commit any one unless a prima facie case is made out against him, by witnesses entitled to a reasonable degree of credit." ' The Justice, therefore, should discharge the prisoner, whenever it appears either that no crime has been committed, or that the reasons for suspecting the prisoner are groundless. 4. RECOGNIZING THE COMPLAINANT AND HIS WITNESSES. If it shall appear that an offence has been committed, and that there is probable cause to believe the prisoner to be guilty thereof, the magistrate must, by recognizance, bind the pros- ecutor, and all the material witnesses against the prisoner, to appear and testify at the next Court having cognizance of the offence, and in which the prisoner may be indicted." Whenever the magistrate is satisfied by due proof that there is good reason to believe that any such witness will not ful- 1 Ante, p. 633. « 2 E. 8. T09, § 20. ' Davis' Justice, 75. » 1 Barnewall & Cresswell, 50, 51, • 1 CMtty'a Criminal Law, 88. » 2 E. S. TOO, § 21. 588 NEW-TOEK JUSTICE. fil the conditions of such recognizance, unless security be re- quired, he may order the witness to enter into a recognizance, with such sureties as he deems sufficient, for his appearance at such Court.' Infants and married women, who are material witnesses, may in like manner be required to procure sureties for their appearance at. such Court.' If any witness so requir- ed to enter into a recognizance, either with or without sure- ties, refuses to comply with such order, it is the duty of the magistrate to commit him to prison, until he complies with the order, or is otherwise discharged according to law.' § 146. Warrant of Commitment of a Witness refusing to enter into a Recognizance. County, ss: To any constable of the said county, and to the keeper of the common jail of the said county, greeting: "Whereas, it appears, by the examination of J. D., this day taken before me, J. H. B., Esquire, a Justice of the Peace in and for the said county, upon a charge made on oath by D. A. before me, against W. Y., for Sjiere state the offence charged^ that he, the said J. D., is a material witness against the said "W". V. in regard to the said charge, and whereas the said J. D., on being required by me to enter into a recognizance in the sum of dollars, to appear and testify at the next Court of \here insert the Cov/rt, and the time and jjI ace cd luMch it is to ie held^ on behalf of the people, against the said W. Y., for the offence aforesaid, did refuse, and still refuses, to enter into such recognizance : These are therefore, in the name of the people of the State of New-York, to command you, the said constable, forthwith to convey and deliver into the cus- tody of the said keeper of the common jail, the said J. D.; and you the said keeper are hereby required to receive the said J. D. into your custody, in the said jail, and him there safely keep until he shall enter into such recognizance as aforesaid, or be otherwise discharged according to law. Given under my hand this day of , 1853. J. H. B., Justice of the Peace. The above form can be easily varied so as to suit the case of a witness examined on the complaint, but failing to give sureties, or the case of a person not examined on the com- > 2 E. S. 709, § 22. 3 id. § 24. %, » iO. § 28. EECOGNIZtKG THE COMPLAIKANT AND HIS WITNESSES. 589 plaint, but whom it may be thought proper to bind over as a witness. All the examinations and recognizances are to be certified by the magistrate taking them, to the Court at which the witnesses are bound to appear, on the first day of the sitting thereof.' It is important for the Justice to know what the jurisdic- tion of the several Criminal Courts is, in order that he may take the recognizances to appear at the proper Court, and also that he may know where to transmit the recognizances and the examinations. The jurisdiction of Courts of Special Sessions, extends only to those crimes of lesser magnitude which are particularly enumerated in the statute, and which will be considered hereafter." If the crime with which the prisoner is charged is found in that enumeration, he must, as we shall presently see, if he re- fuses to give bail, be tried by a Court of Special Sessions ; and it then becomes unnecessary to take the recognizances of the witnesses, or to send the examinations to the Court above. The statute requires the examinations to be sent to the Court at which the witnesses are bound to appear. If the witnesses are not bound to appear at any Court, there is of course no Court to which to send the examinations, and they must, therefore, be retained by the Justice. Courts of Sessions have power to inquire, by the oaths of good and lawful men of the county, of all crimes and misde- meanors committed or triable in such county, although they have power to hear, determine and punish, according to law, only such crimes and misdemeanors, as are not punishable with death, or by imprisonment in a state prison for life.' Courts of Oyer and Terminer have power to inquire, by the oath of good and lawful men of the same county, of all crimes and misdemeanors committed or triable in such county, and to hear and determine all such crimes and misdemeanors.* Courts of Sessions and Courts of Oyer and Terminer have each, therefore, cognizance, so far as finding indictments is 1 2 E. B. 709, § 26, " 2 E. 8 208, §5. « Post, Part H, Chap. VIIL * Id. 205, § 29. 590 NEW-TOEK JUSTICE. concerned, of all crimes and misdemeanors committed or tri- able within the county in which they are held, and the Jus- tice must take the recognizances to appear at the next Court in which the prisoner may be indicted, whether it be a Court of Sessions or a Court of Oyer and Terminer. The recognizances must be in writing, and be signed by the persons to be charged thereby.' If a recognizance contains, in addition to the condition required by statute that the party bound will appear and testify at the next Court having cog- nizance of the offence, &c., the words : " as well to the grand jury as the petit jury^ and not depart the said Court without leave," it will not be vitiated by such addition. ° In a recog- nizance for the appearance of a witness to testify on a crimi- nal charge, there must be inserted an acknowledgment of in- debtedness to the people, and a statement of the offence charged, or no action can be maintained upon it.° |- ss. § 147. Hecognisance hy Witness to give Evidence. State oflSTew-Tork, County. I, J. D., of the town \or city] of , in said county, do acknowledge myself indebted to the people of the State of New-York in the sum of dollars, to be well and truly paid if default shall be made in the condition following :* The condition of this recognizance is such, that if the said J. D. shall personally appear at the next Court of [here insert the Cov/rt and the time and flace of holding it,] then and there to give evidence on the part of the people against W. V. charged with [here state the offence^ as well to the grand jury as to. the petit jury, and shall not depart the said Court with- out leave, then this recognizance to be void, otherwise of force. ' J. D. [l.s.] Taken, subscribed and acknowledged be- ) fore me this day of , 1852. j J. H. B., Justice of the Peace. § 148. Recognizance ly Witness with Sureties. State of New-York, ) County. I ^®- "We, J. D., N. P., and J. B., of the town of in said county, acknowledge ourselves to be severally indebted to the > 2 E. 8. 746, §24. '6^1,606. • 6 Barbour, 611. EECOGNIZmO THE COMPLAINASTT AND HIS WmraSSES. 591 rple of the State of JSTew-Tork ; that is to say, the said J. in the sum of dollars, the said E". P. m the stini of dollars, and the said J. B. in the sum of dol- lars, to be well and truly paid if default shall be made in the condition following :f \_Follow § 14:7/ro?» the *.] \_All the obligors imist sign, seal and acknowledge the reoog- nizance.'] § 149. Recogniza/nce hy Sureties for a Witness who is an InfoMl or a Married Woman. [As in §1-18 to the f.] The condition of this recognizance is such, that if E.. L., who is an infant under the age of twenty- one years, [or a married woman,] shall personally appear [as in § 147 to the end.] These recognizances, together with the examinations, must, as has been before stated, be all certified by the Justice to the Court at which the witnesses are bound to appear, on the first day of the sitting thereof. If the Justice refuses to re- turn them, he may be compelled to do so by a rule of Couit ; and, in case of his disobedience to the rule, he may be pro- ceeded against by attachment.' If the oflTence with which the prisoner is charged be baila- ble by a Justice of the Peace, or an alderman of a city, and the prisoner offer sufficient bail, such bail may be taken, and the prisoner be discharged. If no bail be ofi'ered, or the off'ence be not bailable by a Justice, or an alderman, the prisoner must be committed to prison, except in cases in which a Court of Special Sessions is aiithorized to try him." The different duties imposed upon Justices of the Peace by the provisions of the section of the statute just cited, will be the subject of consideration in the three succeeding chapters. > 2 E. 8. 709, §§ 26, 27. ' Laws of 1830, chap. 320, § 61. 592 HEW-TOEK JUSTIOE. CHAPTER yi. OF COMMITMENTS. The examination of all tlie parties being finished, it be- comes the duty of the Justice to determine what disposition he shall make of the prisoner. It will be seen by the section of the statute last quoted, that the Justice is required to do one of three things, either to commit to prison the party charged, or to bail him, or to try him. 1. COMMITMENT, WHEH' TO BE MADE. The question now arises — when must the prisoner be com- mitted to prison % He must be so committed, either when he cannot be tried by a Court of Special Sessions, or when no sufficient bail is offered for him, or when the offence with which he is charged is a felony which may be punished by imprisonment in the state prison for a period exceeding five years ; for then he cannot be bailed by a Justice of the Peace, or an alderman of a city.' The offences punishable with death, or by imprisonment in the state prison for a period exceeding five years, and which are, therefore, not bailable by a Justice of the Peace, are enumera- ted and defined by the statute as follows : (1.) Crimes Pimishahle with Death. Arson in the First Degree.^'^ This crime consists in wilfully setting fire to, or burning, in the night time, a dwelling house in which there is at the time some human being ; and every house, prison, jail or other edifice, which has been usually occupied by persons lodging therein at night, is deemed a dwelling house of any person so lodging therein. But no warehouse, barn, shed or other house, is deemed a dwelling house, or part of a dwelling house, within the meaning of the > Laws of 1880, chap. 820, § 61. » E. S, 650, § 1. CEIMES PranSHABLE WITH PEATH. 593 'Statute, unless the same is joined to, immediately connected with, and part of a dwelling house.' Duelling.'] Every inhabitant or resident of this State, who, by previous appointment or engagement, fights a duel with- out the jurisdiction of this State, and, in so doing, inflicts a wound upon his antagonist or any other person, whereof the person thus injured dies within this State, and every second engaged in such duel, is deemed guilty of murder within this State, and may be indicted, tried and convicted in the county where such death happens." Murder.] The killing of a human being, without the au- thority of law, by poison, shooting, stabbing or any other means, or in any other manner, is either murder, manslaugh- ter, or excusable or justifiable homicide, according to the facts and circumstances of each case.' Such killing, unless it be manslaughter or excusable or justifiable homicide, as herein- after provided, is murder in the following cases : 1. "When perpetrated from a premeditated design to effect the death of the person killed, or of any human being ; 2. When pei-pe- trated by an act imminently dangerous to others, and evin- cing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual ; 3. When perpetrated without any de- sign to efi^ect death, by a person engaged in the commission of any felony." Treason.] The following acts constitute treason against the people of this State : 1. Levying war against the people of this State, within the State ; 2. A combination of two or more persons by force, to usurp the government of this State, or to overturn the same, evidenced by a forcible attempt made within this State to accomplish such purpose ; 3. Ad- hering to the enemies of this State, while separately engaged in war with a foreign enemy in the cases prescribed in the Constitution of the United States, and giving to such enemies aid and comfort, in this State or elsewhere.' I 2 E. 8. 651, §§ 9, 10. * id. 66T, § B. Md. § 6. « id. 666, § 2. » id. 656, § 4 39 594 NIEW-TOEK JUSTICE. (2.) Crimes Punishable hy Imprisonment in a State Prison for a period exoeed/mg five yea/rs. Abandoning children.] If the father or mother of any child under the age of six years, or any other person to whom any such child has been confided, exposes such child in any highway, street, field, house or out-house, with intent wholly to abandon it, he or she, upon conviction, is to be punished by imprisonment in a state prison not exceeding seven years, or in a county jail not more than one year.' Administering poison.] Every person convicted of hav- ing administered, or of having caused and procured to be ad- ministered, any poison to any other human being, with intent to kill such human being, and which shall have been actually taken by such being, whereof death does not ensae, is to be punished by imprisonment in a state prison for a term not less than ten years.'' Accessories before the fact?] Every person who is a princi- pal in the second degree, in the commission of any felony,' or who is an accessory to a murder, before the fact, and every person who is an accessory to any felony, before the fact, is, upon conviction, to be punished in the same manner prescri- bed by law with respect to principals in the first degree.' Aiding prisoners to escape.] Every person who conveys into a state prison, jail, or other place of confinement, any disguise, instrument, arms, or other thing proper or useful to aid any prisoner in his escape, with intent thereby to facili- tate the escape of any prisoner lawfully committed to, or de- tained in, such prison, jail or place, for any felony whatever, or on a charge for any felony, whether such escape be efi'ected or attempted or not, is, upon conviction, to be punished by imprisonment in a state prison not exceeding ten years.* Every person, who, by any means whatever, aids and as- sists any prisoner lawfully detained in a state prison, or in any jail or place of confinement, for a felony, or on a charge for > 2 E. 8. 666,886. Ma.698, §6. s id. § 8T. ' I'»'ws of 1B8T, ohnp. 46T, § 1. CKIMES PUNISHABLE ET IMPEISOOTIENT. 695 any felony, to escape therefrom, whether such escape be ef- fected or not ; or who forcibly rescues any prisoner held in legal custody upon any criminal charge, is, upon conviction, to be punished by imprisonment in a state prison not exceed- ing ten years.' Every person who, by any means whatever, aids or assists any prisoner lawfully committed to any jail or place of con- finement, in execution of any conviction, or on a charge, for any criminal offence other than felony, whether such escape be effected or not ; or who conveys into such jail or place of confinement, any disguise, instrument, arms, or other thing proper or useful to facilitate the escape of any prisoner, with the intent to facilitate the escape of any prisoner so committed, whether such escape be effected, or attempted, or not, is, upon conviction, to be punished by imprisonment in a county jail not exceeding one year, or by fine not exceeding five hundred dollars, or both such fine and imprisonment." Arson in tlie second degree.'] Every person who wilfully sets fire to or burns any inhabited dwelling house, in the day time, which, if committed in the night time, would be arson in the first degree, is, upon conviction, to be adjudged guilty of arson in the second degree. ° Every person who wilfully sets fire to or burns, in the night time, any shop, warehouse or other building, not being the subject of arson in the first degree, but adjoining to, or within the curtilage of any inhabited dwelling house, so that such house is endangered by such firing, is, upon conviction, to be adjudged guilty of arson in the second degree.* Arson in the third degree.] Every person who wilfully sets fire to or bums, in the day time, any shop, warehouse or other building, which, if committed in the night time, would be arson in the second degree, is, upon conviction, to be ad- judged guilty of arson in the third degree.' Every person who wilfully sets fire to or bums, in the night time, the house of another, not the subject of arson in the first > Laws of 1837, chap. 457, § 2. < id. § 2. 'id. §8. 'id. 667, §3. •2K.8. 666, §1. 596 KEW-TOEK JUSTICE. or second degree ; any house of public -worsliip, or any school house ; any public building belonging to the people of this State, or to any county, city, town or village, or any building in which are deposited the papers of any public oflScer ; or any barn or grist-mill ; or any building erected for the man- ufactory of cotton or wollen goods, or both, or paper, iron, or any other fabric ; or any fulling mill, or any ship or vessel ; is, upon conviction, to be adjudged guilty of arson in the third degree.' Every person who wilfully burns any building, ship or ves- sel, or any goods, wares, merchandize, or other chattel, in- sured at the time against loss or damage by fire, with intent to prejudice such insurer, whether the same be the property of such person or of any other, is, upon conviction, to be ad- judged guilty of arson in the third degree." Arson in the fourth degree.] Every person, who, in the day time, wilfully sets fire to or burns any dwelling house or building, ship or vessel, which, if committed in the night time, would be arson in the third degree, is, on conviction, to be adjudged guilty of arson in the fourth degree. ° Every person who, in the day or night time, wilfully sets fire to or burns any saw-mill, any carding machine or build- ing containing the same, any stack of gi-ain of any kind, or any stack of hay, not being the property of such person ; any toll bridge, or any other public bridge ; is, upon convic- tion, to be adjudged guilty of arson in the fourth degree." Every person who wilfully sets fire to or burns, in the day or in the night, any crop of grain growing or standing in the field, or any nursery or orchard of fruit trees, belonging to another; or the woods in any town not belonging to himself; or any grass or herbage growing, or any marshes or other lands, not belonging to himself; is, on conviction, to be ad- judged guilty of arson in the fourth degree.*"""^ Pimishment of cn-son in the second, third and fourth de- grees.] Every person convicted of any degree of arson above 1 2 E. 8. 66T, § 4. Md. § T. ' id. § B. " Id. § 8. Md. §6. CEIMES PTJNISHABLB BY IMPRISONMENT. 597 specified, is to be punished by imprisonment in a state prison, as follows : 1. Of arson in the second degree, for any term not less than ten years ; 2. Of arson in the third degree, for any term not more than ten years, and not less than seven years ; 3. Of arson in the fourth degree, for any term not more than seven, and not less than two years ; or by impris- onment in a county jail, not exceeding one year.' Assaults with deadly weapons.] Every person convicted of shooting at another, or attempting to discharge any kind of fire-arms, or any air-gun, at another, or of any assault and battery upon another, by means of any deadly weapons, or by such other means or force as was likely to produce death, with the intent to kill, maim, ravish or rob such other person, or in the attempt to commit any burglary, larceny, or other felony, or in resisting the execution of any legal process, is to be punished by imprisonment in the state prison for a term not more than ten years." Attem/pts to commit qfenoes.] Every person who attempts to commit an offence prohibited by law, and, in such attempt, does any act towards the commission of such oifence, but fails in the perpetration thereof, or is prevented or intercepted in executing the same, upon conviction thereof, is, in cases where no provision is made by law for the punishment of such at- tempt, to be punished as follows: 1. If the offence attempted to be committed be such as is punishable by the death of the offender, the person convicted of such attempt is to be pun- ished by imprisonment in a state prison not exceeding ten years ; 2. If the offence so attempted be punishable by im- prisonment in a state prison for four years or more, or by im- prisonment in a county jail, the person convicted of such attempt is to be punished by imprisonment in a ^ate prison or in a county jail, as the case may be, for a term not exceed- ing one half the longest term of imprisonment prescribed for the offence so attempted.' Bribery.] Every person who promises, offers, or gives to 1 2 K. 8. 667, § 9. "Id. 698, § 3. "id. 665, §86. 598 NEW-YOEK JUSTICE. the governor, lieutenant-governor, or to any member of the Senate or Assembly of this State, after his election as such member, and either before or after he has qualified and taken his seat ; to any commissioner of the land office, or of the ca- nal fund, or any canal commissioner ; to the comptroller, state engineer and surveyor, secretary of state, or attorney- general ; to any judge of any Court of Record, or to any judi- cial officer whatever ; any money, goods, right in action or other property, with intent to influence his vote, opinion or judgment on any question, matter, cause or proceeding, which may be then pending, or may by law be brought before him in his official capacity, is, upon conviction, to be imprisoned in a state prison not exceeding ten years, or to be fined not exceeding five thousand dollars, or both, in the discretion of the Court.' Every such officer who accepts any such gift, or any prom- ise or undertaking to make the same, under any agreement that his vote, opinion or judgment shall be given in any partic- ular manner, or upon any particular side of any question, matter, cause or proceeding then pending, or which may by law be brought before him in his official capacity, is, upon conviction, forever disqualified from holding any public office, trust or appointment, under the Constitution or laws of this State, and forfeits his office, and is to be punished by impris- onment in a state prison not exceeding ten years, or by a fine not exceeding five thousand dollars, or both, in the discretion of the Court." Bv/rglary in the first degree.] Every person convicted of breaking into and entering, in the night time, the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either, 1. By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window, of such house, or the lock or bolt of such door, or the fastening of such window or shutter ; or, 2. Breaking in any other manner, being armed with some dangerous weapon ; or with the assistance and aid of one or more confederates, then actually present, aiding and 1 2 E. a. 082, § 9. ' id. § 10. CRIMES PUNISHABLE BY IMPEISONMENT. 599 assisting ; or, 3. By unlocking an outer door by means of false keys, or by picking the lock thereof, is deemed guilty of burglary in the first degree.' Burglary in, the second degree.^ Every person convicted of breaking into any dwelling house in the day time, under such circumstances as would have constituted the crime of burglary in the first degree, if committed in the night time, is deemed guilty of burglary in the second degree." Every person convicted of breaking into any dwelling house in the night time, with intent to commit a crime, but under such circumstances as do not constitute the off'ence of burglary in the first degree, is deemed guilty of burglary in the second degree.' Every person who enters into the dwelling house of another by day or by night, in such manner as not to constitute any burglary hereinbefore specified, with an intent to commit a crime ; or, being in the dwelling house of another, commits a crime ; and, in the night time, breaks any outer door, window, or shutter of a window, or any other part of such house, to get out of the same, is to be adjudged guilty of burglary in the second degree.* Every person who, having entered the dwelling house ot another in the night time, through an open outer door or window, or other aperture not made by such person, breaks any inner door of the same house, with the intent of commit- ting any crime, is to be adjudged guilty of burglary in the second degree.' /J42€ ir^rt*^> ^t^ tfj. Every person who, being admitted into any dwelling house with the consent of the occupant thereof, or who, being law- fully in such house, breaks, in the night time, any inner door of the same house, with the intent of committing any crime, is to be adjudged guilty of burglary in the second degree." No building is deemed a dwelling house, or any part of a dwelling house, within the meaning of the foregoing provis- 1 2 R S. 668, § 10. ■• Id. § 18. » id, § 11. » id. § 14 • id. § 12. • id. 669, § IB. 600 NEW-TOEK JUSTICE. ions, unless the same be joined to, or immediately connected with, and part of a dwelling house.' Punishment of iurgla/ry in the first and second degrees.] Burglary in the first degree is to be punished by imprison- ment in a state prison, for a term not less than ten years ; bur- glary in the second degree, by imprisonment in a state prison for a term not more than ten years, nor less than five years.' Compelling to marry.] Every person who takes any woman unlawfully, against her will, and by force, menace or duress, compels her to marry him, or to marry any other person, or to be defiled, and is thereof duly convicted, is to be punished by imprisonment in a state prison, not less than ten years.' Every person who takes any woman unlawfully, against her will, with the intent to compel her by force, menace or duress, to marry him, or to marry any other person, or to be defiled, is, upon conviction thereof, to be punished by imprisonment in a state prison, for such term as the Court shall prescribe, not less than ten years." Decoying children.] Every person who, maliciously, for- cibly or fraudulently, leads, takes or carries away, or decoys, or entices away, any child under the age of twelve years, with intent to detain and conceal such child, from its parent, guardian, or other person having the lawful charge of such child, is, upon conviction, to be punished by imprisonment in a state prison, not exceeding ten years, or by imprisonment in a county jail, not exceeding one year, or by fine, not ex- ceeding five hundred dollars, or by both such fine and impris- onment.' Duelling.] Every person who fights a duel with any deadly weapon, although no death ensues, is, upon conviction, to be punished by imprisonment in a state prison for a term not ex- ceeding ten years.' Every person who challenges another to fight such duel, or >2E. S. 669, §16. < id. 6G4, § 25. ' id. § 21. » id. 666, § 31 > Id. 668, § 24. « id. 666, § 1. CEIMES PimiSHABLE BY IMPRISONMENT. 601 wlio sends or delivers any written or verbal message, pur- porting or intended to be sucli challenge ; or who accepts any- such challenge or message; or who knowingly carries or de- livers any such challenge or message ; or who is present at the time of fighting any duel with deadly weapons, either as sec- ond, aid, or surgeon ; or who advises, or gives any countenance or assistance to such duel ; is, upon conviction, to be punished by imprisonment in a state prison, for a term not exceeding seven years.' If any inhabitant of this State leaves the same, for the pur- pose of eluding the operation of the above provisions respect- ing duelling, or challenges to fight, with the intent of giving or receiving such challenge, or aids and abets in giving and receiving the same, without this State, he is deemed as guilty, and is subject to the like punishment, as if the offence had been committed within this State." Falsely personating others.l Every person who falsely represents or personates another, and, in such assumed char- acter, 1. Mimics another ; or, 2. Becomes bail or surety for any party, in any proceeding, civil or criminal, before any Court or officer authorized to take such bail or surety ; or, 3. Confesses any judgment; or, 4. Acknowledges the execution of any conveyance of real estate, or of any other instrument, which by law may be recorded ; or, 5. Does any other act in the course of any suit, proceeding or prosecution, whereby the person so represented or personated may be made liable, in any event, to the payment of any debt, damages, costs or sum of money, or his rights or interests may in any manner be af- fected ; is, upon conviction, to be punished by imprisonment in a state prison for a term not exceeding ten years ;' but no indictment for falsely representing or personating another, and, in such assumed character, marrying another, can be found, unless upon the complaint of the injured party, and within two years after the perpetration of the offence.' Every person who falsely represents or personates another, and, in such assumed character, receives any money or valu- » 2 E. S. 686, § 2. » id. 676, § 48. Md.§5. «lcL§49. 602 KEW-YOEK jrSTIOB. able property of any description, intended to be delivered to the individual so personated, is, upon conviction, to be pun- ished in the same manner and to the same extent, as for felo- niously stealing the money or property so received.' Every person who fraudulently produces an infant, falsely pretending it to have been born of parents whose child would be entitled to a share of any personal estate, or to inherit any real estate, with the intent of intercepting the inheritance of any such real estate, or the distribution of any such personal property, from any person lawfully entitled thereto, is, upon conviction, to be punished by imprisonment in a state prison not exceeding ten years." Every person to whom an infant under the age of six years is confided, for nursing, education, or any other purpose, who, with intent to deceive any parent or guardian of such child, substitutes or produces to such parent or guardian, another child in the place of the one so confided, is, upon conviction, to be punished by imprisonment in a state prison, not exceeding seven years.' Forgery in the first degree.] Every person convicted of having forged, counterfeited or falsely altered, 1. Any will of real or personal property, or any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property is, or purports to be, trans- ferred, conveyed, or in any way changed or affected ; 2. Any certificate or endorsement of the acknowledgment by any person of any deed or other instrument which by law may be recorded, made, or purporting to have been made, by any officer duly authorized to make such certificate or endorse- ment ; or, 3. Any certificate of the proof of any deed, will, or other instrument, which by law may be recorded, made, or purporting to have been made, by any Court or officer duly authorized to make such certificates, with intent to defraud, is to be adjudged guilty of forgery in the first degree.' Every person who is convicted of having forged, counter- feited or falsely altered, 1. Any certificate or other public '2R. S. 676, §50. ' Id. 6TT, § 52. "Id. $61. « Id. 670, §22. CEnHES PtrNISHABLE BT rMPEISONMENT. 603 security, issued or purporting to have been issued under the authority of this State, by virtue of any law thereof, or any bill of credit heretofore issued by or under the authority of the legislature of this State, or purporting to have been so issued, by which certificate, bill or other public security, the payment of any money absolutely, or upon any contingency, shall be promised, or the receipt of any money, goods or val- uable thing shall be acknowledged ; or, 2. Any certificate of any share^ right or interest in any public stock, created by virtue of any law of this State, issued or purporting to have been issued by any public officer, or any other evidence of any debt or liability of the people of this State, either abso- lute or contingent, issued or purporting to have been issued by any public officer ; or, 3. Any endorsement or other in- strument, transferring, or purporting to transfer, the right or interest of any holder of any such certificate, public security, bill of credit, certificate of stock, evidence of debt, or liability, or of any person entitled to such right or interest ; with the intent to defraud the people of this State, or any public officer thereof, or any other person, is to be adjudged guilty of for- gery in the first degree/ Forgery in the second degree.] Every person who forges or counterfeits, the great or privy seal of this State ; the seal of any public office authorized by law ; the seal of any Court of Record, including surrogates' seals ; or the seal of any body corporate, duly incorporated by or under the laws of this State ; or who falsely makes, or forges, or counterfeits any impression purporting to be the impression of any such seal ; with intent to defraud, is, upon conviction, to be adjudged guilty of forgery in the second degree.' Every person who, with intent to defraud, falsely alters, destroys, corrupts or falsifies, 1. Any record of any will, con- veyance or other instrument, the record of which is by law evidence ; or, 2. Any record of any judgment in a Court of Record, or any enrolment of a decree of a Court of Equity ; or, 3. The return of any officer. Court or tribunal, to any » 2 E. S. 670, § 23. a id. 671, § 24 604 NEW-TOEK JUSTICE.- process of any Court, is, upon conviction, to be adjudged guilty of forgery in the second degree.' Every person who falsely makes, forges or alters any entry in any book of records ; or any instrument purporting to be any record or return, before specified ; with intent to defraud, is, upon conviction, to be adjudged guilty of forgery in the second degree." If any officer authorized to take the proof or acknowledg- ment of any conveyance of real estate, or of any other instru- ment which by law may be recorded, wilfully and falsely certifies that any such conveyance or instrument was ac- knowledged by any party thereto, when in truth no such ac- knowledgment was made ; or that any such conveyance or instrument was proved, when in truth no such proof was made, he is, upon conviction, to be adjudged guilty of forgery in the second degree.' Every person convicted of having counterfeited any of the gold or silver coins, which are at the time current by custom or usage within this State, is to be adjudged guilty of forgery in the second degree." Every person convicted of, 1. Having made, or engraved, or having caused or procured to be made or engraved, any plate in the form or similitude of any promissory note, bill of exchange, draft, check, certificate of deposit, or other evidence of debt, issued by any incorporated bank in this State, or by any bank incorporated under the laws of the United States, or of any state or territory thereof, or under the laws of any foreign country or government, without the authority of such bank; or, 2. Having or keeping in his custody or possession, any such plate, without the authority of such bank, with the intent of using or having the same used for the purpose of taking there- from any impression to be passed, sold or altered ; or, 3. Having or keeping in his custody or possession, without the authority of such bank, any impression taken from any such plate, with intent to have the same filled up and completed for the pur- pose of being passed, sold or altered ; or, 4. Having made or caused to be made, or having in his custody or possession, 12E.S. on, §25. M(i§2T. 5 Id. § 26. * ii 28. CEIMES PUNISHABLE BT IMPEISONMENT. 605 any plate, upon which shall be engraved any figures or words which may be used for the purpose of falsely altering any evidence of debt issued by any such incorporated bank, with the intent of having the same used for such purpose ; is to be adjudged guilty of forgery in the second degree/ Every person convicted, 1. Of having sold, exchanged or delivered, for any consideration, any forged or counterfeited promissory note, check, bill, draft or other evidence of debt or engagement, for the payment of money absolutely, or upon any contingency, knowing the same to be forged or counter- feited, with the intention to have the same uttered or passed; or, 2. Of having offered any such note or other instrument for sale, exchange, or delivery, for any consideration, with the like knowledge, and with the like intention ; or, 3. Of having received any such note or other instrument, upon a sale, ex- change, or delivery, for any consideration, with the like knowledge, and with the like intention ; is to be adjudged guilty of forgery in the second degree.^ 'Every person who has in his possession any forged, altered or counterfeit negotiable note, bail, draft or other evidence of debt, issued, or purporting to have been issued, by any corpora- tion or company duly authorized for that purpose by the laws of the United States, or of this State, or of any other State, government or country, the forgery of which is declared by law to be punishable, knowing the same to be forged, altered or counterfeited, with intention to utter the same as true or as false, or to cause the same to be so uttered, with intent to in- jure or defraud, is, upon conviction, to be subject to the pun- ishment prescribed for forgery in the second degree.' Pitnishment of forgery in the first and second degrees.] Persons convicted of the different degrees of forgery are to be punished as follows : 1. Those convicted of forgery in the fiirst degree, by imprisonment in a state prison for a term not less than ten years ; 2. Those in the second degree, by the like imprisonment, not more than ten, and not less than five years.* 1 2 E. 8. 671, § 29. s id. 6T4, § 86. ■' id 672, § 32. * Id. 675, % 42. C06 NEW-TOEK JUSTICE. Incest.] Marriages between parents and children, inclu- ding grand-parents and grand-children of every degree, as- cending and descending, and between brothers and sisters of the half, as well as of the whole blood, are declared to be in- cestuous and absolutely void; and this includes illegitimate, as well as legitimate, children and relatives.' Persons within the degrees of consanguinity, within which marriages are declared to be incestuous and void, who inter- marry with each other, or who commit adultery or fornica- tion with each other, are, upon conviction, to be punished by imprisonment in a state prison for a term not exceeding ten years." ITidnapping.] Every person who, without lawful author- ity, forcibly seizes and confines any other, or inveigles or kidnaps any other, with intent either, 1. To cause such other person to be secretly confined or imprisoned in this State against his will ; or, 2. To cause such other person to be sent out of this State against his will ; or, 3. To cause such per- son to be sold as a slave, or any way held to service against his will, is, upon conviction, to be punished by imprisonment in a state prison not exceeding ten years.' Every person convicted of having been an accessory after the fact, to any kidnapping or confinement above prohibited, is to be punished by imprisonment in a state prison, not ex- ceeding six 3'ears, or in a county jail, not exceeding one year, or by a fine, not exceeding five hundred dollars, or by both such fine and imprisonment.* Every person who sells, or in any manner transfers for any term, the services or labor of any black, mulatto, or other person of color, who has been forcibly taken, inveigled or kidnapped from this State to any other State, place or coun- try, is, upon conviction, to be punished by imprisonment in a state prison, not exceeding ten years, or in a county jail, not exceeding one year, or by fine, not exceeding one thousand dollars, or by both such fine and imprisonment.' > 2 E. 8. 189, § 8. id. 664, § 28. CRIMES PUNISHABLE BT IMPEISONMENT. 607 Zaroeny.] Every person convicted of the felonious taking and carrying away tlie personal property of another, of the value of more than twenty-five dollars, is to be adjudged guilty of grand larceny, and to be imprisoned in a state prison for a term not exceeding five years.' If such larceny be committed in a dwelling house, or in a ship or other vessel, the imprisonment of the offender maybe increased by the court, three years in addition to the term above prescribed." If such larceny be committed by stealing in the night time, from the person of another, the offender may be punished by imprisonment in a state prison not ex- ceeding ten years.' In these last two cases, where the offender may be punished by imprisonment in a state prison for a period exceeding five years, the Justice cannot take bail, but must commit the prisoner. Manslaughter. '\ The killing of one human being, by the act, procurement, or omission of another, in cases where such killing is not murder according to the provisions of the sec- tions of the statute before quoted,* is either justifiable, or excusable homicide, or manslaughter. Such homicide is justifiable, when committed by public officers and those acting by their command in their aid and assistance, either, 1. In obedience to any judgment of a competent Court; or, 2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or to the discharge of any other legal duty; or, 3. When necessarily committed in retaking felons who have been rescued, or who have escaped ; or, 4. When necessarily committed in arresting felons fleeing from justice. Such homicide is also justifiable, when committed by any person, in either of the following cases : 1. When resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house, in which such person shall be ; or, 2. When committed in the lawful defence of such person, or of his or her husband, wife, parent, child, master, mistress or servant, when there is a reasonable > a K. 8. 679, §68. »i(L§65. "id. §64. 'Ante, p. 698. 608 NBW-TOEK JUSTICE. ground to apprehend a design to commit a felony, or to do some great personal injury, and there is imminent danger of such design being accomplished ; or, 3. When necessarily committed in attempting, by lawful ways and means to apprehend, any person for any felony committed ; or in law- fully suppressing any riot ; or in lawfully keeping and pre- serving the peace. Such homicide is excusable, when committed, 1. By acci- dent or misfortune, in lawfully correcting a child or servant ; or in doing any other lawful act, by lawful means, with usual and ordinary caution, and without any unlawful intent ; or 2. By accident or misfortune, in the heat of passion, upon any sudden and suflScient provocation, or upon a sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.' Mcmslaughter in the first degree.] The killing of a human being, without a design to eifect death, by the act, procure- ment or culpable negligence of any other, while such other is engaged, 1. In the perpetration of any crime or misde- meanor not amounting to felony ; or, 2. In an attempt to perpetrate any such crime or misdemeanor, in cases where such killing would be murder at the common law, is deemed manslaughter in the first degree.' Every person deliberately assisting another in the commis- sion of self-murder, is deemed guilty of manslaughter in the first degree.' The wilful killing of an unborn quick child, by an injury to the mother of such child, which would be murder if it resulted in the death of such mother, is deemed manslaughter in the first degree.^ Mamslcmghter in tlie second degree.] Every person who administers to any woman pregnant with a quick child, or prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance what- '2E. S. 660, 661,§§lto4. "id. §7. aid. 661, §6. Md. §8. CRIMES PTINISHABLB BY IMPEISONMENT. 609 ever, or uses or employs any instrument or other means, witli intent thereby to destroy such child, unless the same is neces- sary to preserve the life of such mother, is, in case the death of such child, or of such mother, be thereby produced, deemed guilty of manslaughter in the second degree.' The killing of a human being, without a design to effect death, in a heat of passion, but in a cruel and unusual man- ner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, is deemed man- slaughter in the second degree." Every person who unnecessarily kills another, either, 1. While resisting an attempt by such other person to commit any felony, or to do any other unlawful act ; or, 2. After such attempt has failed, is deemed guilty of manslaughter in the second degree.' Punishment of manslcmghter in the first cmd second de- grees.] Persons convicted of manslaughter in the first or second degrees, are to be punished by imprisonment in a state prison, as follows : 1. Persons convicted of manslaughter in the first degree, for a term not less than seven years ; 2. If convicted of manslaughter in the second degree, for a term not less than four, and not more than seven years.' Mayhem.'] Every person who, from premeditated design, evinced by lying in wait for the purpose, or in any other manner; or, with intention to kill, or commit any felony ; 1. Cuts out or disables the tongue ; or, 2. Puts out an eye ; or, 3. Slits the lip, or slits or destroys the nose ; or, 4. Cuts off or disables any limb or member, of another, on purpose, is, upon conviction thereof, to be imprisoned in a state prison, for such term as the Court shall prescribe, not less than seven years.' Perjury, and subornation of jaerjwry.] Every person who wilfully and corruptly swears, testifies or affirms falsely, to any material matter, upon any oath, affirmation or declara- iLawsofl846, clap. 22, §1. « id. 662, §20. »2B. S. 681, §10. »id. 664, §27. Sid. §11. 40 610 NEW-TOEK JUSTICE. tion, legally administered, 1. In any matter, cause or pro- ceeding depending in any Court of law or equity, or before any officer thereof ; 2. In any case where an oath or affirma- tion is required by law, or is necessary for the prosecution or defence of any private right, or for the ends of public jus- tice ; 3. In any matter or proceeding before any tribunal or officer created by the Constitution or by law, or where any oath may be lawfully required by any judicial, executive or administrative officer ; is, upon conviction, to be adjudged guilty of perjury, and cannot, thereafter be received as a wit- ness to be sworn, in any matter or cause whatever, until the judgment against him be reversed.' Persons convicted of perjury, are to be punished by im- prisonment in a state prison, as follows : 1. For perjury committed on the trial of any indictment for a capital offence, or for any other felony, for a term not less than ten years ; 2. For perjury committed on any other judicial trial or inquiry, or in any other case, for a term not exceeding ten years." Every person who unlawfully and corruptly procures any witness, by any means whatsoever, to commit any wilful and corrupt perjury, in any cause, matter or proceeding, in or concerning which such witness is legally sworn and examined, is to be adjudged guilty of subornation of perjury.' The consequences of a subornation of perjury are the same as those above declared upon a conviction of perjury ; and every person convicted of subornation of perjury, is to be punished by imprisonment in a state prison, for the same term as hereinbefore prescribed upon a conviction for the perjury so procured.* Poisoning food, springs, (&c.] Every person who mingles any poison with any food, drink or medicine, with intent to kill or inj ure any human being ; or who wilfully poisons any spring, well or reservoir of water, is, upon conviction, to be punished by imprisonment in a state prison not exceeding ten years, or in a county jail not exceeding one year, or by fine not ex- 's R.s.esi.si. Md. §a "Id. §2. Md.§4. CKIMES PUNISHABLE BT IMPKISONMENT. 611 ceeding five hundred dollars, or by both such fine and impris- onment.' Rap6.\ Every person convicted of rape, either, 1. By carnally and unlawfully knowing any female child under the age of ten years ; or, 2. By forcibly ravishing any woman of ten years or upwards, is to be punished by imprisonment in a state prison, not less than ten j^ears." Robbery in the first degree.} Every person convicted of feloniously taking the personal property of another from his person, or in his presence, and against his will, by violence to his person, or by putting such person in fear of some imme- diate injury to his person, is to be adjudged guilty of robbery in the first degree/ Robbery in the second degree.] Every person convicted of feloniously taking the personal property of another in his presence, or from his person, which has been delivered or suffered to be taken through fear of some injury to his person or property, or to the person of any relative or member of his family, threatened to be inflicted at some different time, which fear has been produced by the threats of the person so receiving or taking the property, is to be adjudged guilty of robbery in the second degree.* Punishment for robbery m the fi/rst and second degrees.] Every person convicted of robbery in the first degree is to be punished by imprisonment in a state prison, for a term not less than ten years ; and every person convicted of robbery in the second degree, is to be punished by a like imprison- ment, for a term not exceeding ten years.' Second offences.] If any person convicted of any offence punishable by imprisonment in the state prison, is discharged, either upon being pardoned, or upon the expiration of his sentence, and is subsequently convicted of any offence com- mitted after such pardon or discharge, he is to be pxmished as J 2 E. S. 655, § 37. Md.§66. "id. 668, §22. » Id. 678, §87. > Id. 677, §55. 612 NEW-TOEK JtTSTIOE. follows : 1. If the offence of which such person is subse- quently convicted, be such, that upon a first conviction, an offender would be punishable by imprisonment in a state prison for any term exceeding five years, then such person is to be punished by imprisonment in a state prison, for a term not less than ten years ; 2. If such subsequent offence be such, that upon a first conviction the offender would be pun- ishable by imprisonment in a state prison for five years or any less term, then the person convicted of such subsequent offence, is to be punished by imjDrisonment in a state prison, for a term not exceeding ten years." Every person convicted of petit larceny, or of an attempt to commit an offence, which, if perpetrated, would be pun- ishable by imprisonment in a state prison, and pardoned or otherwise discharged, who is subsequently convicted of any offence committed after such pardon or discharge, is to be punished as follows : 1. If such subsequent offence be such, that upon a first conviction the offender would be punishable by imprisonment in a state prison for life, at the discretion of the Court, then such person is to be sentenced to imprison- ment in such prison during life; 2. If such subsequent offence be such, that upon a first conviction the offender would be punishable by imprisonment in a state prison for any term less than for life, then such person is to be sentenced to im- prisonment in such prison, for the longest term prescribed upon a conviction for such first offence." Sodomy.] Every person convicted of the detestable and abominable crime against nature, committed with mankind or with a beast, is to be punished by imprisonment in a state prison for a term not more than ten years." The Justice, upon ascertaining that he cannot take bail in the case, or that the prisoner is unable to give bail, naturally inqiiires to what prison he must commit the prisoner, and by what process. These inquiries will be the subject of con- sideration in the remaining portion of this chapter. > 2 E. S. 699, § 8. Md.6S9,§2 »ld.§9. TO WHAT PRISON. 613 2. TO WHAT PRISON. The statute does not designate any particular prison or jail to which the Justice must commit the prisoner, but merely requires that he must be committed to prison. There can be no doubt that the prison intended by the statute, is the com- mon jail of the county in which the offence is committed. The statute relative to county jails contains the following provision : " The common jails in the several counties of this State shall be kept by the sheriffs of the counties in which they are respectively situated, and shall be used as prisons for, among other things, the detention of persons charged with crimes, and committed for trial.'" There can be no doubt, then, that the prisoner is to be committed to the com- mon jail of the county. If the prisoner has been arrested upon an endorsed warrant, he must, unless bail be given in some other county than the one from which the warrant originally issued, be brought before the magistrate by whom the warrant was issued. The magistrate endorsing the war- rant, has, as we have before seen,'' no power to commit or try the offender, but can only, in certain cases, admit him to bail.^ In half-shire coiinties, as the county of Seneca, where there are two common jails, the magistrate should direct the pris- oner to be commmitted to the nearest jail, naming the place where it is located. Otherwise, it is at the option of the officer having charge of the prisoner to convey him to either prison, and he will probably select the more remote one for the sake of increasing his mileage.'' 3. THE MITTIMUS. Great care should be exercised by the Justice in drawing the process for the commitment of the prisoner, or as it is familiarly termed the mittimus. This mittimus is the war- rant which authorizes the jailer to receive and detain the prisoner in his custody ;^ and it is said, that though it need not be drawn with the same precision as an indictment yet it ought to be framed with great accuracy, or the party may, I Laws of 1847, chap. 460, § 1. * Davis' Justice, 112. "Ante, p. 577. ' id. 104 ' 1 Cliitty's Criminal Law, 108. 614 NEW-TOBK JirSTIOE. thotigli prosecuted for a felony, be discharged out of custody, or, if he escape, the officer may not be answerable." If the warrant of commitment be defective, the prisoner will not, however, be, for that reason, finally discharged; but, if a crime be made out by the depositions, (which, as "we have seen, are to be returned to the Court at which the witnesses are boimd to appear,) the course is to discharge the prisoner ^o forma, and then remand him upon a special order." The commitment must be in writing, and be signed and sealed by the magistrate, and have apparent upon its face the time and place of making it, and the official character of the magistrate.' A Justice may verbally order a party to be de- tained a reasonable time, until he can prepare a mittimus.'' It is stated by Mr. Chitty, that the mittimus may be made either in the King's name, or in that of the Justice awarding it, but the latter is the more usual.' There seems no proprie- ty or authority for issuing a m/itbimus in the name of a Jus- tice. He is simply the instrument of the people of the State, elected by them to enforce the laws which from time to time they enact, and whatever the Justice does in his official capa- city ought to be done in their name.° Besides, the statute provides, that all process shall be in the name of the people of this State, except when otherwise provided by law ;' and- though it may be that this has reference to civil process only, yet the argument from analogy holds good, and it is certainly more proper to issue the warrant in the name of the people from whom the authority to issue it emanates, than in the name of the person upon whom that authority is conferred. The mittimus should contain both the christian name and surname of the prisoner, if they are known. If they are not known, it will be sufficient to describe the person by his ap- parent age, stature, complexion, color of the hair, &c., and to add that he refuses to tell his name.' The mitt/imus ought to state that the party has been charged upon oath. In other words, it must set forth a good cause for > 1 Ohltty's Criminol Law, 109. » 1 Chitty's Criminal Law, 109. i> 5 Cowen, 80. • Davis' Justice, 107. » 1 Oiiitty's Ci-iminal Law, 109 ; Barljour's ' 2 1!. S. 270, § 8. Criminal Law, 563 ; Davis' Justice, 106. ' 1 Oliitty's Criminal Law, 110 ; 1 Burn's « 7 East, 537. Justice, 276 ; Davis' Justice, 107. THE MITTIMUS. 010 commitment, be expressed with certainty, and appear to be supported by oath.' There may be an exception to this rule in the case of a commitment made by a magistrate immedi- ately after seeing a crime perpetrated ; in which case an oath does not appear to be essentially requisite. It is not necessa- ry, however, that the evidence of the charge made against the prisoner should be stated in the commitment." It is necessary, also, that the mittimus should set forth clearly the particular species of crime with which the prisoner is charged.' Therefore, if the commitment be for a felony, it ought not to be generally for a felony, but it should express the special nature of the felony, brieily ; as, " for a felony in causing the death of A. B.," or, "for burglary in breaking into the house of A. B." The reason is, that it may appear, on the return of a habeas corpus, whether it be a felony or not.' If no cause be shown in the commitment, and the pris- oner escape, it is said the officer is not answerable.' It is not necessary, however, to allege in the mittimus that the offence was feloniously committed ; it is sufficient if it appear upon its face that the charge was one of felony." There is another reason why the commitment should show the cause for which the prisoner is committed. The statute requires the keeper of every county jail to present to every Court of Oyer and Terminer, and to every Court of Sessions held in his county, at the opening of such Court, a calendar, stating the name of every prisoner detained in such jail; the time when such prisoner was committed, and by virtue of what precept or process, and the cause of detention of every such pris- oner.' The keeper of the prison can only ascertain these particulars from the mittimus, which should, for that if for no other reason, be so precisely drawn that the keep- er may make out and return his calendar in compliance with the requirements of the statute.' There can be no ob- jection to incorporating in the mittimus the body ofthe com- plaint, as originally preferred by the complainant, if the J 3 Cranch, 448. * id. " 2 Wilson, 158. ' 1 Chitty's Criminal Law, 111. = 1 Chitty's Criminal Law, 110; Barlionr's • id. 118. Criminal Law, 5T0 ; 1 Burn's Justice, 276 ; Da- ' Laws of 1847, chap. 460, § 2S. ▼is' Justice, 108. s Dayis' Justice, 109. 616 KBW-TOEK JUSTICE. charge has been made out by the evidence. "Where the offence is created by statute, the Justice should pursue the terms of the statute in describing it.' The mittimus should point out the place of imprisonment, or the prison to which the prisoner is to be committed, as has been before remarked." Where the nearest jail, (if there are two in the same county,) is not sufficiently secure, the prisoner should be sent to the more distant one ; but of that sufficiency the magistrate, and not the officer conveying the prisoner, should be the judge. If the county jail is unsafe, it is the duty of the County Court, by an instrument in writing, to be filed in the county clerk's office, to designate the jail of some contiguous county to be used for the confinement of prisoners, and, in such case, the Justice must direct the mittimus to the keeper of the jail in the county designated.' The mittimus must have a proper and apt conclusion. If the offence is not bailable by a Justice, then the language of the conclusion is : to detain the prisoner " until he shall be discharged according to law." If the offence is bailable by a Justice, and the prisoner is committed for want of sureties, then the language of the conclusion is : " to keep the prisoner in his" (the keeper's) " custody, for want of sureties, or until he shall be discharged by due course of law."* These forms of conclusion are authorized by the common law ; the statute prescribing no particular form. If the conclusion is irregular, it will not, however, vitiate the mittimMS." The forms heretofore given for complaints will answer to guide the Justice in describing the offence in the m,ittimus. The mittimus should state at its commencement the juris- diction of the Justice, and be directed to the sheriff of the county, or his deputies, or to any constable of a to>vn named in the mittimus, and to the keeper of the particular jail to which the prisoner is to be committed, and should command the sheriff or constable to convey the prisoner into the custody of ' Bartour's Criminal Law, 671. tice, 2T6. » Ante, p. C18. » Barbour's Criminal Law, 672 ; Davis' Jna- » Laws of 1847, chap. 380, § 29. tloe, 114 * 1 cutty's Criminal Law, 114; 1 Burn's Jus. THE MITTIMUS. 617 the jailer, and the jailer to receive and keep liim in tlie jail, until lie be thence delivered by due course of law.' If the officer to whom the mittimus is directed, wilfully or corruptly refuses to execute it, or wilfully or corruptly exe- cutes it in such a manner that the prisoner escapes, or re- ceives any gratuity, reward, security or engagement for the same, from the prisoner, to procure, assist, connive at or per- mit the escape of such prisoner, he is liable, upon conviction, to be punished by imprisonment in the county jail, not ex- ceeding one year, or by fine, not exceeding one thousand dol- lars, or both." The keeper of the jail must receive and safely keep the pris- oner, and must not, without lawful authority, let him out of prison on bail or otherwise.' He must be kept in a room sepa- rate and distinct from the room in which persons convicted are confined.* While he is so detained in jail, he may con- verse with counsel, and with such other persons as the keeper in his discretion may allow.' If the keeper wilfully refuses to receive the prisoner, or permits him to escape after com- mitment, he is liable, upon conviction, to be punished by im- prisonment in the county j ail, not exceeding one year, or by fine, not exceeeding one thousand dollars, or by both." If the keeper of the jail will not receive the prisoner, it is said he may be kept in the house of the person who arrested him.' The officer, to whose custody he was committed on the Tnitti- mus, may, in such case, keep him until the j ailer can be induced or compelled to receive him." If the jailer should receive, by mistake, from the constable, a person whom it was not intended to confine, he is protected from liability." The constable must deliver the warrant of commitment to the jailer at the time of delivering the prisoner, for it is the jailer's authority for keeping him, and is the only return the jailer can make to a writ of habeas corpus, if one should be sued out. It is prudent for the constable to keep a copy of 1 1 Ohitty's Criminal Lair, 110, 116 ; Bar- » id. § T. hour's Criminal Law, 673; 1 Bum's Justice, '2 E. 8. 684, § 18. 276 ; Davis' JusHce, 107, 114. ' 1 Ohitty's Criminal Law, 117, a 2 E. S. 684, § 18. » Davis' Justice, IIB. 3 Laws of 1847, cliap. 460, § 8. » 1 Cliitty's Criminal Law, 117. •id. §4. 618 NEW-TOEK JUSTIOE. • the warrant, and to take a receipt for the prisoner from \he jailer.' The jailer is hound, under a penalty of two hundred dol- lars, to deliver a copy of the warrant to the prisoner, when- ever he shall demand the same, and tender the fees therefor.' If a Justice, acting within the scope of his jurisdiction, takes an erroneous view of the effect of the evidence, and comes to a wrong conclusion, and commits the defendant, and the latter is afterwards discharged on haheas corjnis, the Jus- tice is not liable to an action of trespass." If the prisoner is advised that his commitment is illegal, or that he is entitled to be discharged or bailed, he has his remedy by habeas corpus or certmra/ri. It is not, however, within the scope of this work to consider proceedings beyond the jurisdiction of Justices of the Peace. A prisoner may also be discharged upon giving bail. Thus, if he is not ready with bail, at the time he is apprehended or examined, he may afc any time be released from imprison- ment on finding sureties.' The fee allowed to a constable for taking a defendant into custody on a mittimus is twelve and a half cents ; for convey- ing him to jail, twelve and a half cents, if the jail is within one mile, and for every mile more, going only, six cents.' A sheriff is entitled to the same fees for like services, and to thirty-seven and a half cents as keeper of the jail, for receiv- ing the prisoner." These fees are to be audited by the board of supervisors, and paid in the same manner as other county charges.' § 150. Warrcmt of OommitTnent. County, ss : To the sheriff of the said county, and to his deputies, and to any constable of the town of in said county, and to the keeper of the common jail in the said county ; [add: at Waterloo, or other place, if there is more than one jail in the cov/niy /] Greeting : These are, in the name of the People of the State of New- I Bariour's Criminal Law, 678. » 3 E. 8. 760, § 4. » 2 K. 8. B78, § 72. « Id. 763, § 11. > 1 Chitty'B Criminal Law, 116; 14 East, 82. ' id. 763, § 12. < Barbour's Criminal Law, 676. BAIL AMD ITS INCIDENTS. 619 York, to command youj the said sieriff, deputies, and consta- bles, and each of you, forthwith to convey and deliver into the custody of the keeper of our said jail, [at Waterloo] the body of W. v., charged before me, the undersigned, a Justice of the Peace of the said county, on pAe date] on the oath of D. A., [and others,] for that [here insert the charge, as in the complaint,'] (contrary to the form of the statute in such case made and provided ;')the said W. V. having been regularly brought before me, the said Justice, to answer said charge, and it appearing to me, from the examination of the said X). A., [and others,] on oath, in presence of the said "W". Y., in regard to the offence charged, and from an examination of the said W. Y., without oath, in relation thereto, he having been by me previously informed of the charge made against him, and that he was at liberty to refuse to answer any question put to him, and having been allowed a reasonable time to send for and advise with counsel, and upon an examination of the whole matter, that the said offence has been committed, and that there is probable cause to believe the said "W. Y. guilty thereof, and the said W. Y. not having offered suffi- cient bail for his appearance at the next Court naving cogniz- ance of such offence, and in which he may be indicted, [or, the said offence not being bailable by me the said Justice,] and you, the said keeper, are hereby requii-ed to receive the said "W". Y. into your custody, in the said common jail, and him there safely keep, [if for want of sureties, in a case where the offence is hailMe hy the Justice, add: for want of sureties, and] until he shall be discharged according to law. Given under my hand and seal, at the town of in said county, the day of ,1852. J. H. B., [l. s.] Justice of the Peace. CHAPTER YIL or BAIL AND ITS rNQDENTS. If, says the statute," the offence with which the prisoner is charged is bailable by a Justice of the Peace, or an alderman ^ This part within the parentheses is not to be inserted except ■wkere the offence is against a statute or statutes. » Laws of 1880, chap. 820, § 61 ; 2 E. S. 709, § 2S. 620 NEW-TOEK JirSTIOE. of a city, and tlie prisoner offers sufficient bail, sucli bail may be taken and tbe prisoner discharged. This section of the statute, it will be seen, authorizes the Justice to hold the pris- oner to bail in all cases where the offence with which he is charged is bailable by a Justice of the Peace, or an alderman of a city. 1. WHAT OFFENCES ARE BAILABLE BY A JUSTICE. The first question which arises is, what offences are bailable by a Justice of the Peace or an alderman of a city ? The statute provides, that officers before whom persons charged with crime shall be brought, shall have power to let to bail as follows : 1. A Justice of the Supreme Court, in all cases ; 2. A Judge of the County Courts, in all cases triable in a Court of Sessions ; 3. A Justice of the Peace, or alderman of a city, and in the city of New-York, a Special Justice or an Assistant Justice, in all cases of misdemeanor, and in all cases of felony where the imprisonment in the state prison cannot exceed five years.' If, therefore, the crime charged is a felony not punishable by imprisonment in the state prison exceeding five years, the Justice, if sufficient bail be offered, is authorized to take it and discharge the prisoner. If the crime is a felony punish- able by imprisonment in the state prison exceeding five years, then the Justice, as we have seen, has no discretion; he rmist commit the prisoner. It becomes necessary, therefore, to as- certain the various crimes designated as felonies, in which the punishment cannot exceed five years imprisonment in the state prison. This includes the following offences : Ahduotion.] Any person who inveigles, entices or takes away any unmarried female of previous chaste character, under the age of twenty -five years, from her father's house, or wherever else she may be, for the purpose of prostitution at a house of ill-fame, assignation or elsewhere, and every person who aids or assists in such abduction for such purpose, is guilty of a misdemeanor, and is, upon conviction thereof, to be pun- ' 2 E. 8. 710, § 29. "WHAT OFFENCES AUE BAILABLE BY A JtTSTIOE. 621 ished by imprisonment in a state prison not exceeding two years, or by imprisonment in a county jail not exceeding one year ; but no conviction can be had on the testimony of the female so inveigled or enticed away, unsupported by other evidence, nor unless an indictment be found within two years after the commission of the offence.' Every person who takes away any female under the age of fourteen years, from her father, mother, guardian or other per- son having the legal charge of her person, without their con- sent, either for the purposes of prostitution, concubinage or marriage, is, upon conviction thereof, to be punished by im- prisonment in a state prison, not exceeding three years, or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment." Accessories after the fact.'] Every person convicted of having concealed any offender, after the commission of any felony, or of having given such offender any other aid, know- ing that he has committed a felony, with intent and in order that he may avoid, or escape from, arrest or trial, or convic- tion or punishment, and no others, is deemed an accessory af- ter the fact, and is, upon conviction, to be punished by im- prisonment in a state prison not exceeding five years, or in a county jail, not exceeding one year, or by fine, not exceeding five hundred dollars, or by both such fine and imprisonment." Assaults to commit feloniesi] -Every person convicted of an assault, with an intent to commit any robbery, burglary, rape, manslaughter, or any other felony, the punishment for which assault is not otherwise prescribed, is to be punished by imprisonment in a state prison, for a term not exceeding five years, or in a county jail, not exceeding one year, or by a fine, not exceeding five hundred dollars, or by both such fine and imprisonment.* Attemj)ts to commit offences.] Every person who attempts to commit an offence prohibited by law, and in such attempt 1 Laws of 1848, chap. 105, § 1. ' id. 669, § T. E. S 664, § 26. t id. 666, § 41. 622 KEW-TOEK JirSTIOE. does any act towards the commission of such offence, hut fails in the perpetration thereof, or is prevented or intercepted in executing the same, is, upon conviction thereof, in cases where no provision is made by law for the punishment of such attempt, to be punished as follows : If the offence so attempt- ed be punishable by imprisonment in a state prison for four years or more, or by imprisonment in a county jail, the per- son convicted of such attempt is to be punished by imprison- ment in a state prison, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of impris- onment prescribed upon a conviction for the offence so attempt- ed.' Attempts to induce perjwry.] Every person who, by the offer of any valuable consideration, attempts unlawfully and corruptly to procure any other to commit wilful and corrupt perjury, as a witness in any cause, matter or proceeding, in or concerning which such other person might by law be examin- ed as a witness, is, upon conviction, to be punished by im- prisonment in a state prison not exceeding five years.' JBigamy.] Every person having a husband or wife living, who marries any other person, whether married or single, is, except in the cases hereafter specified, to be adjudged guilty of bigamy, and is, upon conviction, to be punished by im- prisonment in a state prison, for a term not exceeding five years.' The foregoing provision does not extend to the following persons or cases : 1. To any person by reason of any former marriage, whose husband or wife by such marriage has been absent for five successive years, without being known to such person within that time to be living; nor, 2. To any person, by reason of any former marriage, whose husband or wife by such marriage has absented himself or herself from his wife or her husband, and has been continually remaining withoiit the United States for the space of five years together; nor, 3. To any person by reason of any former marriage which has > 2 R. S. 698, § 8. • Id. 687, § ». » Id. 682, § 8. WHAT OFEENCES AEE BAILABLB ET A JUSTICE. 623 been dissolved by the decree of a competent Court, for some cause other than the adultery of such person ; nor, 4. To any person by reason of any former marriage which has been pro- nounced void by the sentence or decree of a competent Court, on the ground of the nullity of the marriage contract ; nor, 5. To any person by reason of any former marriage contracted by such person within the age of legal consent, and which has been annulled by the decree of a competent Court ; nor, 6. To any person by reason of any former marriage with a hus- band or wife who has been sentenced to imprisonment for life.' If any unmarried person, knowingly marries the husband or wife of another, in any case in which such husband or wife would be punishable according to the foregoing provisions, such person is, upon conviction, to be imprisoned in a state prison, not more than five years, or in a county jail not more than one year, or to be fined, not more than five hundred dol- lars, or to be subject to both such fine and imprisonment, in the discretion of the Court." Burglary in the third degree.] Every person convicted of breaking and entering, in the day or in the night time, 1. Any building within the curtilage of a dwelling house, but not forming a part thereof; or, 2. Any shop, store, booth, tent, ware-house, or other building, in which any goods, wares, merchandize, or valuable thing, are kept for use, sale or de- posit, with intent to steal therein, or to commit any felony, is, upon conviction, to be adj iidged guilty of burglary in the third degree.' Every person convicted of breaking and entering into the dwelling house of another, in the day time, under such cir- cumstances as would have constituted the ofi'ence of bur- glary in the second degree,' if committed in the night time, is deemed guilty of burglary in the third degree." Punishment of Tyu/rglary in the third degree^ Burglary in ' 2 E. 8. 68T, § ». * Ante p. 599. « id. 688, § 11. "2 K. S. 669, § 18. • id. 669, § IT. 624 iraW-TOEK JTTSTICE. the third degree is to be punished by imprisonment in a state prison for a term not exceeding five years.' Buymg stolen property.'] Every person who buys or re- ceives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been feloniously taken away or stolen from any other, knowing the same to have been stolen, is, upon conviction, to be punished by im- prisonment in a state prison, for a term not exceeding five years, or in a county jail, not exceeding six months, or by a fine, not exceeding two hundred and fifty dollars, or by both such fine and imprisonment." Carnal hnowledge of women.] Every person who has car- nal knowledge of any woman above the age of ten years, without her consent, by administering to her any substance or liquid, which shall produce such stupor, or such imbecility of mind or weakness of body, as to prevent effectual resistance, is, upon conviction, to be punished by imprisonment in a state prison, not exceeding five years.' Compounding offences.] Every person having a knowledge of the actual commission of any offence punishable by death, or by imprisonment in a state prison for life, who takes any money or property of another, or any gratuity or reward, or any engagement or promise therefor, upon any agreement or understanding, express or implied, to compound or conceal any such crime, or to abstain from any prosecution therefor, or to withhold any evidence thereof, is, upon conviction, to be punished by imprisonment in a state prison, not exceeding five years." Every person having a knowledge of the actual commission of any offence punishable by imprisonment in a state prison for any other term than for life, who takes any money or pro- perty of another, or any gratuity or reward, or any engage- ment or promise therefor, upon any agreement or understand- ing, express or implied, to compound or conceal any such crime, or to abstain from any prosecution therefor, or to with- I 2 E. 8. 669, § 21. ' W- 668, § 23. » Id. 680, § 71. * ^^ '^^< § IT- "WHAT OFFENCES AKE BAILABLE BY A JUSTICE. 625 hold any evidence thereof, is, upon conviction, to be punished by imprisonment in a state prison, not exceeding three years, or in a county jail, not exceeding six months.' Conspiracy, c&e., iy persons disguised.} Every person con- victed upon any indictment for a conspiracy, or upon any in- dictment for a riot, or for any other misdemeanor, in which the offence is charged to have been committed by such per- son while armed with a sword, dirk, fire-arms, or other offen- sive weapon, and while having his face painted, discolored, covered, or otherwise concealed, or having his person disguised in a manner calculated to prevent him from being identified, is to be punished by imprisonment in the county jail, for a term not exceeding one year, or by fine, in a sum not exceed- ing two hundred and fifty dollars, or by both such fine and imprisonment, or by imprisonment in the state prison, for two years, in the discretion of the Couit before whom such con- viction is had.' Corrupting jurors.] Every person who corrupts or at- tempts to corrupt, any other drawn or summoned as a juror, appointed a referee, or chosen an arbitrator, by giving or of- fering to give any gift or gratuity whatever, with intent to bias the mind of such juror, referee or arbitrator, in relation to any cause or matter which may be pending in the court to which such juror has been summoned, or in which such ref- eree or arbitrator has been chosen or appointed, is, on con- viction, to be punished by imprisonment in a state prison, not exceeding five years, or in a county jail, not more than one year, or by a fine, not exceeding one thousand dollars, or by both such fine and imprisonment.' Death hy wrongful act, &g.\ In case the death of any per- son is caused by the wrongful act, neglect or default of any agent, engineer, conductor, or other person, in the employ of any corporation or person, under such circumstances as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof,. 1 2 E. S. 689, 5 IS- « 2 E. 8. 688, § 9. » Laws of 1845, chap. S, § 1. 41 626 NEW-TOEK JUSTICE. then, and in every such case, the agent, engineer, conductor, or other person, through whose wrongful act, neglect or de- fault the death of such person has been caused, is liable to be indicted therefor, and, upon conviction thereof, may be punished by imprisonment in a state prison, for a term not exceeding five years, or in a county jail, not exceeding one year, or by a fine, not exceeding two hundred and fifty dol- lars, or by both such fine and imprisonment.' Emlezzlement.'] If any clerk or servant of any private per- son, or of any co-partnership, (except apprentices, and per- sons within the age of eighteen years,) or if any officer, agent, clerk or servant of any incorporated company, embezzles or converts to his own use, or takes, makes way with, or se- cretes, with intent to embezzle or convert to his own use, without the assent of his master or employers, any money, goods, rights in action, or other valuable security or effects whatever, belonging to any other person, which have come into his possession, or under his care, by virtue of such em- ployment or office, he is, upon conviction, to be punished in the manner prescribed by law for feloniously stealing prop- erty of the value of the articles so embezzled, taken or secre- ted, or of the value of any sum of money payable and due upon any right in action so embezzled." If any carrier or other person, to whom any goods, money, right in action, or any valuable personal property or effects, has been delivered, to be transported or carried for hire, takes, embezzles, or converts to his own use, or makes way with, or secretes, without the assent of his employer, and with intent to embezzle or convert to his own use, such goods, money, right in action, property or effects, or any of them, in the mass, as they were delivered, without breaking the trunk, box, pack, or other thing in which they or any of them are contained, and before delivery of such articles at the place or to the person entitled to receive them, he is, upon conviction, to be punished in the same manner as if he had taken, em- bezzled, converted, or secreted such goods or other personal _property, after breaking the trunk, box, pack or other thino- » Laws of 1S49, ohap. 2D0, § 2. » 2 E. S. 6T8, § 59. WHAT OFFESrOES AEE BAILABLE BT A JUSTICE. 627 containing the same, or after separating any of them from the others.' Escajnng from county jails.] If any person confined in a county jail upon any conviction for a criminal offence, breaks such jail and escapes from thence, he is, upon conviction, to be punished by imprisonment in a state prison, not exceeding two years, or in a county jail, not exceeding one year, to com- mence from the expiration of his former sentence.'' Escaping from state prison.'] If any prisoner confined in a state prison for any term less than for life, breaks such prison and escapes from thence, he is, upon conviction, to be punished by imprisonment in such prison, for a term not ex- ceeding five years, to commence from and after the original term of his imprisonment.' Every person, lawfully imprisoned in a state prison for any term less than for life, who attempts, by force or violence to any person, to escape from such prison, whether such escape be effected or not, is, upon conviction, to be adjudged to im- prisonment in a state prison, for a term not exceeding five years, to commence after the termination of the imprison- ment to which such person was sentenced at the time of such attempt.* False toTicns and pretences.] Every person, who, with intent to cheat or defraud another, designedly, by color of any false token or writing, or by any other false pretence, obtains the signature of any person to any written instrument, or obtains from any person any money, personal property, or valuable thing, is, upon conviction thereof, to be punished by impris- onment in a state prison, not exceeding three years, or in a county jail not exceeding one year, or by a fine, not exceed- ing three times the value of the money, property or thing so obtained, or by both such fine and imprisonment,' This provision also applies to every person who, with intent to cheat or defraud another, designedly, by color of any false 1 2 B. S. 6T9, § 62. ■• id. § 23. " id. 685, § 22. »id. 67T, §(ia 'id. § 21. 628 NEW-TOEK JUSTICE. token or writing, or by any false pretence, obtains the signa- ture of any person to any written instrument, or obtains from any person any money, personal property or valuable thing, for an alleged charitable or benevolent purpose.' Forgery in the thu'd and fowrth degrees.] Every person who, with intent to injure or defraud, falsely makes, alters, forges, or counterfeits, 1. Any instrument or writing, being, or purporting to be, any process issued by any competent Court, magistrate or ofHcer ; or being, or purporting to be, any pleading or proceeding filed or entered in any Court of law or equity; or being, or purporting to be, any certificate, order or allowance by any competent Court or officer ; or being, or purporting to be any licence or authority authorized by any statute ; 2. Any instrument or writing, being, or pur- porting to be, the act of another, by which any pecuniary demand or obligation is, or purports to be, created, increased, discharged or diminished, or by which any rights or property whatever, are, or purport to be, transferred, conveyed, dis- charged, diminished or in any manner affected, the punish- ment of which is not otherwise prescribed ; by which false making, forging, altering or counterfeiting, any person may be affected, bound, or in any way injured in his person or property ; is, upon conviction thereof, to be adjudged guilty of forgery in the third degree." Every person who, with intent to' defraud, makes any false entry, or falsely alters any entry made in any book of accounts kept in the office of the comptroller of this State, or in the office of the treasurer, or of the State engineer and sm-veyor, or of any county treasurer, by which any demand or obligation, claim, right or interest, either against, or in favor of, the people of this State, or anjr county or town, or any individual, is, or purports to be, discharged, diminished, increased, crea- ted or in any manner affected, is, upon conviction, to be adjudged guilty of forgery in the third degree.' Every person who, with intent to defraud, makes any false entry, or falsely alters any entry made, in any book of accounts 1 Laws of 1851, chap. 144. > Id. § 84 2 2 K. 8. 678, § 83. WHAT OFFENCES AEE BAILABLE BY A JUSTICE. 629 kept by any moneyed corporation within this State, or in any book of accounts kept by any such corporation, or its officers, and delivered or intended to be delivered to any person deal- ing with such corporation, by which any pecuniary obligation, claim or credit is or purports to be, discharged, diminished, increased, created, or in any manner afiected, is, upon conviction, to be adjudged guilty of forgery in the third degree/ Every pierson who has in his possession any forged or counterfeited instrument, the forgery of which is herein- before' declared to be punishable, (except such as are enu- merated in 2 E. S. 674, §36,)' knowing the same to be forged, counterfeited or falsely altered, with intention to injure or defraud by uttering the same as true or as false, or by causing the same to be so uttered, is subject to the pun- ishment provided for forgery in the fourth degree." Every person who has in his possession any counterfeit of any gold or silver coin which is at the time current in this State, knowing the same to be counterfeited, with intention to injure or defraud by uttering the same as true or as false, or by causing the same to be so uttered, is, upon conviction, to be adjudged guilty of forgery in the fourth degree.' Every person convicted of having uttered and published a^ true, and with intent to defraud, any forged, altered or coun- terfeited instrument, or any counterfeit gold or silver coin, the forging, altering or counterfeiting of which is declared to be an offence, knowing such instrument or coin to be forged, altered or counterfeited, is to suffer the same punishment assigned for the forging, altering or counterfeiting the instru- ment or coin so uttered ; " except that, if it appears, on the trial of the indictment, that the accused received such forged or counterfeited instrument or coin, of another, in good faith and for a good or valuable consideration, without any circum- stances to justify a suspicion of its being forged or counter- feited, the jury may find the defendant guilty of forgery in the fourth degree.' 12E. 3. 673, §85. Md.§S3. 2 Ante, pp. 602 to 605. «id. §39. 3 Ante, p. 605. 'id. §40. *2E. S. 674, §3T. 630 NEW-TORK JUSTICE. If any one, witli intent to injure or defraud, makes any instrument in his own name, intended to create, increase, dis- charge, defeat or diminish any pecuniary obligation, right or interest, or to transfer or affect any property whatever, and utters or passes it, under the pretence that it is the act of another who bears the same name, he is, upon conviction, to be adjudged guilty of forgery in the same degree, as if he had forged the instrument of a person bearing a diiferent name from his own.' Punishment of forgery in tlve thi/rd am,d fov/rth degrees.] Persons convicted of forgery in the third and fourth degrees are to be punished as follows : 1. Those in the third degree, by imprisonment in a state prison, for a term not exceeding five years ; 2. Those in the fourth degree, by a like impris- onment, not exceeding two years, or by imprisonment in a county jail, not exceeding one year.' Grcmd la/roeny.] Every person convicted of the feloni- ous taking and carrying away the personal property of another, of the value of more than twenty-five doUai-s, is to be adjudged guilty of grand larceny, and to be imprisoned in a state *rison, for a term not exceeding five years.' If the property stolen consists of any bond, covenant, note, bill of exchange, draft, order or receipt, or any other evidence of debt, or of any public security issued by the United States or by this State, or of any instrument whereby any demand, right or obligation is created, increased, released, extinguished or diminished, the money due thereon or secured thereby, and remaining unsatisfied, or which in any event or contin- gency might be collected thereon, or the value of the property transferred or afi'ected thereby, as the case may be, is deemed the value of the article so taken." Injuries to rail-roads.] Every person who wilfully, with malicious intent, removes, breaks, displaces, throws down or destroys, any iron, wooden or other rail, or any branches or '2E. 8.6T4, §41. '10.679, §68. "id, 676, 42. * i. . ■WHAT OFFENCES AEE BAILABLE BY A JUSTICE. 631 branch-'ways, or any part of the tracks, or any bridge, via- duct, culvert, embankment, or other fixture, or any part thereof, attached to or connected with the tracks of any rail- road in this State, or who wilfully, with like malicious intent, places any obstructions upon the rails or tracks of such rail- roads, is, upon conviction, to be punished by imprisonment in the state prison, not exceeding five years, or in a county jail, not less than six months.' Jurors, (&c., accepting h'ihes.] If any person drawn or summoned as a juror, or if any person chosen an arbitrator, or appointed a referee, takes anything to give his verdict, award or report, or receives any gratuity or gift whatever, from any party to any suit, proceeding or prosecution, for the trial of which such person has been drawn or summoned, or for the hearing of which he has been chosen an arbitrator or appointed a referee, he is, upon conviction, to be punished by imprisonment in a state prison, not exceeding five years, or in a county jail, not exceeding one year, or by fine, not ex- ceeding one thousand dollars, or by both such fine and im- prisonment." Manslaughter in the third and fourth degrees.] The killing of another, in the heat of passion, without a design to efi'ect death, by a dangerous weapon, in any case except one wherein the killing of another is declared by statute to be justifiable or excusable, is deemed manslaughter in the third degree.' The involuntary killing of a human being, by the act, pro- curement, or culpable negligence of another, while such other person is engaged in the commission of a trespass or other injury to private rights or property, or engaged in an attempt to commit such injury, is deemed manslaughter in the third degree.^ If the owner of a mischievous animal, knowing its propen- sities, wilfully suflFers it to go at large, or keeps it without ordi- nary care, and such animal, while so at large, or not confined, » Laws of 1888, clap. 160. s Id. 661, § 12. !I2E. S.683, §11. Id. § 15. ° Id- § 18. ■Id. §16. «id. §19. WHAT OEPENCES AHE BAILABLE BY A JUSTICE. 633 Punishment of manslaughter in the third and fourth degrees.] Persons convicted of manslaugliter in the third degree, are to be punished by imprisonment in a state prison, for a term not more than four years, and not less than two years.' Every person convicted of manslaughter in the fourth de- gree, is to be punished by imprisonment in a state prison, for two years, or by imprisonment in a county jail, not exceeding one year, or by a fine, not exceeding one thousand dollars, or by both such fine and imprisonment." Poisoning cattle.] Every person who wilfully administers any poison to any horse, cattle or sheep, or maliciously ex- poses any poisonous substance, with intent that the same should be taken or swallowed by any horse, cattle or sheep, is, upon conviction, to be punished by imprisonment in a state prison, not exceeding three years, or in a county jail, not ex- ceeding one year, or by a fine, not exceeding two hundred and fifty dollars." Receiving ^operty emheszled.] Every person who buys or in any way receives any money, goods, right in action, or any valuable security or effects whatever, knowing the same to have been embezzled, taken or secreted contrary to the provisions of the statute defining embezzlement,* is, upon conviction, to be punished in the same manner and to the same extent as is prescribed by statute tipon a conviction of a servant for such embezzlement.' Second offences.] If any person convicted of any offence punishable by imprisonment in a state prison, is discharged, either upon being pardoned, or upon the expiration of his sentence, and is subsequently convicted of any offence com- mitted after such pardon or discharge, he is to be punished as follows : If such subsequent conviction is for petit larceny, or for any attempt to commit an offence which, if perpetrated, would be punishable by imprisonment in a state prison, then ' 2 E. 8. 662, § 20. « Ante, p. 626. Md. §21. » 2 K. S. 6T8, § 61. » id. 669, § 16. 634: NEW-TOEK JUSTICE. the person convicted of such subsequent offence is to be pun- ished by imprisonment in a state prison, for a term not exceed- ing five years.' Every person convicted of petit larceny, or of an attempt to commit an oifence which, if perpetrated, would be punishable by imprisonment in a state prison, and pardoned or otherwise discharged, who is subsequently convicted of any oifence com- mitted after such pardon or discharge, is to be punished as follows : If such subsequent conviction is for petit larceny, or for any attempt to commit an offence which, if committed, would be punishable by imprisonment in a state prison, then such person is to be sentenced to imprisonment in such prison, for a term not exceeding five years. ^ 8edMcUon under promise of mmriage.] Any man, who, under promise of marriage, seduces and has illicit connexion with any unmarried female of previous chaste character, is guilty of a misdemeanor, and is, upon conviction, to be pun- ished by imprisonment in a state prison, not exceeding five years, or by imprisonment in a county jail, not exceeding one year ; but no conviction can be had on the testimony of the female seduced, unsupported by other evidence, nor unless an indictment be found within two years after the commission of the offence ; and the subsequent marriage of the parties may be pleaded in bar of a conviction.' The provisions of this stat- ute are applicable to all Indians residing within the State of New-York." Severing produce from the soil, <&c.] If any person sev- ers from the soil of another, any produce growing thereon, of the value of more than twenty -five dollars, or severs from any building, or from any gate, fence, or other railing or enclo- sure, any part thereof, or any material of which it is formed, of the like value, and takes and converts the same to his own use, with the intent to steal the same, he is deemed guilty of larceny in the same manner and of the same degree, as if the articles so taken had been severed at some previous and dif- ferent time.' ' 2 R. B. C99, § 8. * Laws of 1849, chap. 420, § 8. » id. § 9. '2 E. S. 680, § 68. » Laws of 1848, cliap. 111. ■WHAT OFlfENCES AHE EAILAELE BY A JUSTICE. 635 Stealing records.] Whoever is convicted of having stolen and carried away any record, paper or proceeding of a Court of Justice, filed or deposited with any clerk or officer of such Court, or any paper, document or record filed or deposited in any public office, or with any judicial officer, is to be adjudged guilty of larceny, without reference to the value of the record, paper, document or proceeding so stolen, and is to be punish- ed by imprisonment in a state prison, not exceeding five years, or in a county jail, not exceeding one year, or by fine, not exceeding five hundred dollars, or by both such fine and im- prisonment.' Every officer having the custody of any record, paper or proceeding above specified, who steals, or fraudulently takes away, or withdraws, or destroys any such document or paper filed with him, is, upon conviction, to be punished by impris- onment in a state prison, for a term not exceeding five years." Threatening letters.] Every person who knowingly sends or delivers, or makes, and, for the purpose of being delivered or sent, parts with the possession of, any letter or writing, with or without a name subscribed thereto, or signed with a fictitious name, or with any letter, mark or other designation, threatening therein to accuse any person of any crime, or to do any injury to the person or property of any one, with a view to extort or gain any money or property of any descrip- tion, belonging to another, is, upon conviction, to be adjudged 'guilty of an attempt to rob, and to be punished by imprison- ment in a state prison, not exceeding five years.' Violating graves, c&c] Every person who removes the dead body of any human being from the grave or other place of interment, for the purpose of selling the same, or for the purpose of dissection, or from mere wantonness, is, upon con- viction, to be punished by imprisonment in a state prison, not exceeding five years, or in a county jail, not exceeding one •year, or by a fine, not exceeding five hundred dollars, or by both such fine and imprisonment.* Every person who purchases or receives the dead body of 1 2 E. 8. 6S0, § 69. » id. 678, § 58. ^ id- § TO. « id. 683, § 18. 636 KEW-TOEK JUSTICE. any human being, knowing the same to have been disinterred contrary to the foregoing provisions, is, upon conviction, to he subject to the same punishment above specified.' Every person who opens a grave or other place of interment, with intent, 1. To remove the dead body of any human be- ing, for the purpose of selling the same, or for the purpose of dissection ; or, 2. To steal the coffin or any part thereof, or the vestments or other articles interred with any dead body, is, upon conviction, to be punished by imprisonment in a state prison, not exceeding two years, or in a county jail, not ex- ceeding six months, or by fine, not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.'' The provisions of the Revised Statutes enumerating and de- fining the various crimes distinguished as misdemeanors, are too voluminous to be inserted in this work. Nor is it neces- sary that they should be. If the Justice does not find, within the enumeration of felonies given in the text, the particular crime with which the prisoner is charged, the presumption is that his oflfence is a misdemeanor, and therefore bailable by a Justice. 2. BAIL WHEN TO BE TAKEN. Bail, from the French word hailler, signifies the delivery of a man out of custody, upon the undertaking of one or more persons for him, that he shall appear at a day limited, to an- swer and be justified by the law.' This bail or undertaking every person may offer, who is brought before a Justice, charged with a criminal offence bailable by such Justice ; and, if sufficient bail be offered, it is presumed it must be ac- cepted.' The language of the statute is : " If the offence be bailable by a Justice of the Peace, and the prisoner offer suf- ficient bail, such bail may be taken, and the prisoner discharg- ed." " " May," it seems to be understood, is to be here con- strued " must ;" and this construction appears to be warranted by the language of the remaining portion of the section. If > 2 E. 8. 688, § It * Barbour's Criminal Law, 676. 'id. §16. ' Laws oflSSO, cliap. 820, § 61. » 1 Bum's Justice, 110. BAIL WHEN TO BE TAKEN. 637 the magistrate refuses to take bail, lie must commit the pris- oner ; and, in looking further through this section of the stat- ute, for his authority to do so, we find the following provision : " If 110 hail be offered, or the oflence be not bailable by a Jus- tice of the Peace, or an alderman of a city, the prisoner shall be committed to prison." This power to commit is, at most, hut a conditional authority, to be exercised only when the prisoner offers no sufficient bail, or when his offence is not bailable by a J ustice or an alderman. Nor does this con- struction facilitate the escape of offenders, or militate against the intention of the statute in authorizing bail to be taken. That intention is, that the appearance of the prisoner at the proper Court, to answer the charge preferred against him, shall be secured. How ? By exacting sufficient bail. The magistrate is the judge of its sufficiency, and has a discretion either to accept it or to refuse it ; but, if he refuses it, it must be for the reason that it is insufficient. The 8th amendment to the Constitution of the United States provides, that " ex- cessive bail shall not be required ;'" and the statute says, that if suficient bail be offered it may be taken. The Justice, therefore, must judge of the sufficiency of the bail offered. But, by what standard ? How is that sufficiency to be deter- mined and the provision of the Constitution to be adhered to ? Manifestly, by fixing the amoimt of the bail in view of the magnitude of the offence charged ; and of the other circum- stances connected with the case, which may affect the proba- bility of the prisoner's appearance to answer the charge. If the Justice is of opinion that the offence charged may, by the death of the person injured by the prisoner, or from some oth- er cause, become merged in an offence not bailable by him, and if he is also of opinion that he is not at liberty to refuse bail, he has the option, and it is his duty, either to detain the prisoner in custody until the person wounded shall have been pronounced out of danger,"" or to require bail in such a sum and with sureties of such unquestionable responsibility as will ensure the appearance of the prisoner.' If the Justice refuses or delays to bail any person who is I Sth Amdt. Constitution U. S.; 1 E, S. 94, = Barbonr's Criminal Law, 67T. § IT. ' Davis' Justice, 83. 638 NEW-TOEK JUSTICE. clearly entitled to be bailed, he is guilty of a criminal offence at common law, and is also liable in damages to the party in- jured.' It is not, however, the duty of the Justice to demand bail, but the prisoner is bound to tender it, otherwise the Jus- tice may commit him." If the offence is not bailable by a Justice, and he admits the prisoner to bail, he is guilty of a negligent escape.' Justices of the Peace have the power, also, under the act of Congress of September 24th, 1789, to admit to bail all persons arrested for any crime or offence against the United States, except where the punishment may be death. The process issued for the arrest of a criminal under this act, together with the recognizances taken by the Justice, are to be returned to the clerk's office of such Court of the United States as has cognizance of the offence. If the witnesses upon the exami- nation refuse to enter into a proper recognizance, the Justice has power to imprison them.* It has been held, that a Justice may take a recognizance, with sureties, for the appearance of a party charged with a bailable offence, at an adjourned examination ; and, if the party do not appear, he and his sureties must be called, and a proper entry of their default made ; but it is not necessary that the Justice should render judgment that the recognizance is forfeited.' If the offence is bailable, the refusal of the prisoner to be examined is not a ground for refusing bail. That examina- tion is a personal privilege, for the benefit of the accused, and a recognizance entered into after a waiver of the examination is valid." 3. BAIL, BY WHOM TO BE GIVEN. We have seen thafthe statute says : " If svfficient bail be offered, it may be taken." ' This sufficiency has reference not only to the responsibility of the sureties, but also to the amount of the penalty of the recognizance,' as the latter must ' Barbour's Criminal Law, 676 ; Da-vis' Jus- " 1 Day, 98. See 2 Wasliington's C. C. E. 422. tico, 88. • 2 Oomstodk, 82. " 1 Cliitty'8 Criminal Law, 108. ' Ante, p. 686. > id. 102. » Davis' Justice, 96. < lU. S. Statutes at Large, 91, S 83. BAIL, BY WHOM TO BE GIVEN. necessarily be determined before deciding upon the former. Plere, again, tbe Justice must exercise his best discretion, bearing in mind, that the intention of the statute is to secure the appearance of the prisoner. He may require an amount proportioned to the enormity of the offence and the improba- bility of the prisoner's appearance, provided he does not vio- late the provision of the Constitution against excessive bail.' If the prisoner is a man of property, and known to the Justice to be responsible for the amount of the penalty, he, with one surety of adequate responsibility, may be permitted to execute the recognizance." The common practice, however, appears to be to require two sureties of undoubted ability to answer the penalty of the recognizance. In order to satisfy himself of such ability, the Justice may require the sureties to answer on oath a^ to- the value of their property.' The criterion of responsibility, as laid down in the books, is the amount of unencumbered real estate possessed by the sureties within the county of the Justice. They should each own, in his own right, a quantity sufficient to answer, even if sold at a forced sale, the penalty of the recognizance.* A minor cannot become a surety, for he cannot bind him- self during his minority, nor can a married woman, because her bond cannot be estreated ; and therefore, when either a minor or a married woman is arrested, a recognizance can be taken only from the sureties. ° In a criminal case, an attorney may become bail for his client." , f . fi , f- i,t- iQH^ 4. CONTENTS OF THE RECOGNIZANCE. "^ The recognizance need not set forth the oflfence, with the particularity required in an indictment,' nor need it recite that the defendant was charged on oath with an offence, or that the magistrate adjudicated thereon.' The cause of taking it must, however, appear, and it must specify the charge ' Ante, p. 637. 236 ; 11 Leigh, 665. 2 1 Chitty'a Criminal Law, 99; Barbour's Grim- " Douglas, 466. InalLaw, 578; Davis' Justice, 96. '17 "Wendell, 252; 4 Denio, 630; 10 Bar- » id.; 2 E. S, 552, § 9. bour, 35. * Davis' Justice, 96. " 2 Comstock, 88. » 1 Chitty's Criminal Law, 104 ; 1 Blackford, 6iO NEW-TOKK JUSTICE. which the prisoner is to answer. If the latter is omitted, the defect is one which cannot be supplied by parol proof.' The recognizance should state in substance all the proceedings which show the authority of the magistrate to take it." A recognizance in general binds to three things — to appear and answer a specified charge, or such matter as may be objected; to stand to and abide the judgment of the Court ; and not to depart the Court without leave. Each of these particulars is distinct and independent." The statute does not prescribe the form of the condition of the recognizance, but it is presumed that it must be of the same tenor and effect as the condition of the bonds given by the prosecutor and witnesses, namely, that the prisoner will appear at the next Court having cognizance of the offence, and in which he may be indicted. /j~ /'^-tn.o /v 2.^/ In considering the form of the recognizance to be given by witnesses, we stated the rule which determines the Court at which they must be bound to appear." The same rule applies in determining the Court at which the prisoner must be bound to appear. If the condition be, to appear at a time when no Court is by law to be held, the recognizance is void." So also, if it be made returnable to a Court not having jurisdic- tion of the offence charged." 5. FORM OF THE RECOGNIZANCE. Tlie statute requires, that all recognizances in any criminal matter or proceeding, must be in writing, and be subscribed by the parties to be bound thereby ; ' and it is proper that they should be sealed, though a seal is said to be not essential to their validity.' It is not legally necessary that the princi- pal and sureties should unite in the same recognizance.' § 151. Recognizance. State of ISlew-York, ] County, f ^® • We, W. v., E. F., and G. H., of , in said county, acknowledge ourselves to be severally indebted to the people 1 2 Kelley, 863 ; 14 Vermont Eop. 64. Eop. 64 " 9 Massaoljusetts Eep, 520 ; 16 Id. 447. « 1 Sergeant & Eawlo, S2S ; Brayton, 140. 8 Hnlste»d, 124. ' 2 K, S. 746, § 24. j',,; /,; , ,-•{ / •- ' * Ante, p. 689. ' 2 Constitutional Court Eep. 123, • 12 Sineede & Marshall, 470 ; 14 Vermont ' 10 WendoU, 464 FOEM OF THE EECOGNIZANCE. 64:1 of the State of New- York ; that is to say : the said "W". V. in the sum of dollars, the said E. F. in the sum of dollars, the said Gr. H. in the sum of dollars, to be well and truly paid, if default shall be made in the condition following* The condition of this recognizance is such, that if the said W. Y. shall personally appear at the next Court of Oyer and Terminer, [or, Court of Sessions,] to be held in and for said county, then and there to answer to a complaint against him for, &c., [state the complaint,'] and to do and receive what shall, by the court, be then and there enjoined upon him ; and shall not depart the court without leave ; then this re- cognizance to be void ; otherwise, of force. Taken, subscribed, and acknowledged, ) W. Y. [l. s.] the day of j 18 , before me, f E. F. [l. s.] G. H. [L. s.] J. H. B., Justice, &c. This recognizance is to be certified by the Justice taking it, to the Court at which the witnesses are bound to appear, on the first day of the sitting thereof. If the prisoner is not ready with bail at the time he is apprehended, and the oflFence is bailable by a Justice, he may, at any time before conviction, be released from impris- onment on finding sureties ; and, after the recognizance has been entered into, the Justice before whom it is taken must issue his precept, formerly called a liberate, to the jailer, commanding him to liberate the prisoner.' § 152. Wa/rrant to liberate a prisoner. County ss : To the keeper of the common jail of said county : "W. Y., now in your custody in the said jail, by virtue of a warrant of commitment signed by me, [or, by J. H. B., a Justice of the Peace of the said county,] dated [date^ for having [state the offence^ having given bail before me to appear at the next [state the cov/rt,] you are hereby required forthwith to dis- charge the said W. Y. from your custody in said jail, unless he be detained by you therein for some other cause. Given under my hand and seal this [date.] H. T. C, [L. 8.J Justice of the Peace. ' Ohitty's Criminal Law, 101. 42 642 NEW-TOEK JITSTIOE. CHAPTER YIII. OF COURTS OF SPEQAL SESSIONS GENERALLY, AND TRIALS THEREIN. If no bail is oiFered for the prisoner, he is, as we have before seen, to be committed by the Justice, except in cases in which a Court of Special Session's is authorized to try him/ Formerly, Courts of Special Sessions were held by the magistrate before whom the prisoner was brought, associated with two Justices of the Peace of the county.' But now, they are required to be held by a single magistrate, authorized to sit as a member of a Court of Special Sessions." A Jus- tice of the Peace is such a magistrate. All the often ces triable by the former Court of Special Sessions may be tried by such single magistrate, with or without a jury at the election of the prisoner ; and all the provisions of law which were applicable to the powers, duties and proceedings of such Courts of Special Sessions, apply to the single magistrate and the proceedings before him.* 1. JURISDICTION OF COURTS OF SPECIAL SESSIONS. Courts of Special Sessions, except in the city and county of New-York, have power, subject to other provisions of the statute, to hear and determine charges for crimes arising within their respective counties, as follows : 1. All cases of petit larceny, charged as a first offence.' Petit larceny is the stealing, taking, and carrying away the personal property of another, of the value of twenty-five dollars and under.' There are no accessories in petit larceny ; all concerned in the commission of the offence are princi- pals.' > Laws of 18S0, chap. 820, § 61 ; 2 E. S. 709, «ld. S2r. "au. S.711,§1. »id. 712, §2. «ia.690,§l. » Laws of 1845, chap. 180. § 15. ' C Hill, 144. JTJEISDICTION OF COXTETS OF SPECUL SESSIONS. 643 2. Cases of assault and battery, not charged to have been committed riotously, or upon any public officer in the execu- tion of his duties. 3. Charges for poisoning, killing, maiming, wounding, or cruelly beating any animal.' This includes the maliciously killing, maiming or wounding any horse, ox, or other cattle, or any sheep belonging to another ; and the maliciously and cruelly beating or torturing any such animal." It also includes the wilfully administering any poison to any horse, cattle or sheep, and the maliciously exposing any poisonous substance, with intent that the same shall be taken or swallowed by any horse, cattle or sheep.' 4. Charges for racing animals within one mile of the place where any Court is held.* This includes the racing, running, or other trial of speed between any horses or other animals, within one mile of the place where any Court shall be actually sitting.' 5. Charges for committing any wilful trespass, or for sever- ing any produce or article from the freehold, not amounting to grand larceny." This includes the wilfully committing any trespass by, (1.) Cutting down or destroying any kind of wood or timber, standing or growing upon the lands of any other, or upon lands belonging to the people of this State ; or, (2.) Carrying away any kind of wood or timber that may have been cut down, and that may be lying upon such lands ; or, (3.) Maliciously cutting down, lopping, girdling, or otherwise injuring, any fruit or ornamental shrub-trees; or, (4.) Mali- ciously severing from the freehold any produce thereof, or anything attached thereto ; or (5.) Severing and carrying away from any freehold, any property or thing attached there- to, of the value of twenty -five dollars or less, under such cir- cumstances as would render the trespass a larceny if the thing so severed or carried away was personal property.' 6. Charges for selling poisonous substances, not labelled, as required by law." This includes the sale and delivery by >2E. S.Tll, §1. » id. 692, §18. "11695, §26. Md.Tll, §1. •id. 689, §16. 'id.69T, §40. Md.ni, §1. »id.711, §1. 6M NEW-TOEK JUSTICE. any apothecary, druggist, or other person, of any arsenic, corrosive sublimate, prussic acid, or any other substance or liquid usually denominated poisons, without having the word " poison" written or printed upon a label attached to the phial, box, or parcel, in which the same is so sold ; and also the sel- ling and delivering any tartar emetic, without having the true name thereof written or printed upon a label attached to the phial, box, or parcel containing the same.' For this of- fence, however, the party, if convicted, cannot be sentenced by the Justice to imprisonment, but can only be punished by a fine, not exceeding one hundred dollars." 7. Charges for maliciously removing, altering, defacing, or cutting down monuments, or marked trees.' This includes, (1.) Wilfully or maliciously removing any monuments of stone, wood, or other durable material, erected for the purpose of designating the corner or other point in the boundary of any lot or tract of land ; or, (2.) Wilfully and maliciously defa- cing or altering the marks upon any tree, post, or other mon- ument, made for the purpose of designating any point, course, or line, in the boundary of any lot or tract of land ; or, (3.) Wilfully and maliciously cutting down and removing any tree upon which any such marks shall be made for such purpose, with the intent to destroy such marks.* 8. Charges for maliciously breaking, destroying, or remov- ing mile-stones, mile-boards, or guide-boards, or altering or defacing any inscription thereon." This includes the wilfully or maliciously breaking, destroying, or removing any mile- stone, mile-board, or guide-board, erected upon any public highway or turnpike, and the wilfully or maliciously defa- cing or altering any inscription upon such stone or board." It also includes the destroying, removing, injuring, or defacing .any mile-board, or mile-stone, or guide-post, erected on any high-way.' But on a conviction for this last offence, the Justice cannot both fine and imprison the party, but can only fine him, not exceeding fifty dollars, or imprison him not exceed- ing three months, at his discretion.' > 2 E. S. 694, § !!3. » id. Til, § 1. s id. "Id. 696, § 88. • id. 711, § 1. 'Id. 626, §§ 128, 129. •*id.695, §82; ld.69T, §40. » Id. JURISDICTION OF COtTKTS OF SPEOIAi SESSIONS. 645 It is also provided by the non-imprisonment act, that any person who shall remove any of his property out of any county vrith intent to prevent the same from being levied upon by any execution, or who shall secrete, assign, or convey, or oth- erwise dispose of any of his property, with intent to defraud any creditor, or to prevent such property being made liable for the payment of his debts, and any person who shall re- ceive such property with such intent, shall, on conviction, be deemed guilty of a misdemeanor ; and, if the property be worth fifty dollars or less, the oifence may be tried by a Court of Special Sessions of the Peace.' Courts of Special Sessions have jurisdiction and power, also, to hear and determine charges for misdemeanors committed within their respective counties, in the violation of any stat- ute prohibiting the selling or giving to any Indian residing in their counties, any spirituous liquors or intoxicating drinks, and to proceed thereon in the same manner ' as upon a charge for an oflFence which, by the Revised Statutes, they have the power to try ; except, that they can exercise such jurisdiction and power, without requiring the party charged to give bail for his appearance at the next Criminal Court, and the giving of such bail will not deprive the Court of Special Sessions of its jurisdiction and power to proceed and try the offender.^ If the offender is convicted and fined, the costs and expenses of the prosecution must first be paid out of the fine, and then one moiety of the residue must be paid into the treasury of the nation to which the Indian to whom the liquor was sold, belongs, or with which he resides, or, if there is no treasury, then to the chiefs of such tribe or nation, to be applied to the public purposes of the tribe or nation ; and the other moiety, into the treasury of the county where such conviction is had.* The person convicted of selling or giving any liquors to any Indian, may be punished by a fine, of not less than twenty- five nor more than fifty dollars, or by imprisonment in the county jail, for not more than thirty days, or by both such fine and imprisonment.' 1 Laws of 1830, chap. 800, § 26. < id. § 6. » 2 K. S. 711.,, Md. $ 1. " Laws of 1849, chap. 420, § 5. 6i6 NEW-TOEK JUSTICE. There are various statutory provisions respecting Courts of Special Sessions in different cities and towns in the State, which will be noticed hereafter.' 2. BY WHOM HELD. We have already remarked, that Courts of Special Sessions must be held by a single magistrate, and that all the provis- ions of law applicable to the powers, duties, and proceedings of such Courts apply to such magistrate and the proceedings before him.' Turning then to the statute prescribing the mode of pro- ceeding in Courts of Special Sessions as formerly constituted, we find, that when a person charged with any of the offences above enumerated, requests to be tried by a Court of Special Sessions, it becomes the duty of the Justice, acting as such Court, to proceed and try him.' If the person charged does not make such request, but, after having been required by the magistrate, omits, for twenty-four hours after such require- ment, to give bail for his appearance at the next Court having jurisdiction of his offence, then the magistrate, acting as a Court of Special Sessions, must proceed and try him.* The statute, (2 R. S. T13, § 4,) says : " If the person making such request, or refusing to give bail, shall have been brought before a magistrate, not being a Justice of the Peace or a Judge of the County Courts, such magistrate shall certify the facts to three Justices of the Peace of the same county, and require them to meet to try such offender ; and it shall be the duty of such three Justices forthwith to meet for that purpose, at such time and place as shall be specified in such certificate. In view, however, of the provisions of the 15th section of the act to reduce the number of town officers," it is no longer necessary that the facts should be certified to three Justices of the Peace ; but it will be sufficient to certify them to a single Justice, who, under the provisions of the Revised Statutes and of the act of 1845 together, has authority to proceed and try the of- fender. > Post, Part II, chap. IX Md. 712, § a X^ 'V' -^ ^-«/ , Jl " Ante, p. 508. ' Law3 of 1S45, chap. ISO, § 16 ; Ante, p. 568. » 2 E. 8. 711, § 2. DISPOSITION OF PEISONER AWAITING TRIAL. 647 3. DISPOSITION OF THE PRISONER WHILE AWAITING TRIAL. During the twenty-four hours allowed to a prisoner to give bail, he may be committed to jail for safe-keeping, or be con- tinued in the custody of the officer arresting him, as the ma- gistrate issuing the warrant of arrest shall direct ; and, after the Court of Special Sessions has convened, the prisoner must be brought before it and be continued in the custody of the officer having him in charge, until the termination of the pro- ceedings.' The Court of Special Sessions must cause the prisoner to be brought before it, and as soon as may be, pro- ceed to his trial." If the Jiistice commits the prisoner till the expiration of the twenty-four hours, the following form may be used : § 153. Warrant of Commitment of Prisoner to await Trial hy Court of Special Sessions. County, ss : To any constable of the said county, and to the keeper of the common jail of said county, greeting : "Whereas, W. Y. has this day been brought before me, J. H. B., one of the Justices of the Peace of the said county, charged, on the oath of D. A., with [state the offence^ and the said W. Y. having been required by me to give bail, and having omitted so to do, [w, the said W. Y. having requested to be tried by a Court of Special Sessions :] These are, there- fore, in the name of the people of the State of New- York, to command you, the said constable, forthwith to convey and deliver the said W. Y. into the custody of the said keeper ; and you the said keeper are hereby required to receive the said W. Y. into your custody in the said jail, and him there safely keep, imtil he shall be required to be brought before a Court of Special Sessions for trial, or shall otherwise be dis- charged according to law. Given under my hand and seal [date.] J. H. B., [l. S.J Justice of the Peace. § 154. Order to Jailer to Tyring up Prisoner for Trial. County, ss: To the keeper of the common jail of the said county : You are hereby commanded forthwith to bring before me, J. H. B., a Justice of the Peace of the said county, now holding a Court '2E.S.T12,§5. !>id.§6. 648 NEW-TOEK JTSTICE. of Special Sessions at my office in [name of town,'] W. Y., now in yonr custody in said jail by virtue of a warranty of commitment signed by me, and dated [date,] together with the said warrant, to the end that he may be tried by me for the offence charged in the said warrant. Witness my hand, this [date.] J- H. B., Justice of the Peace. 4. THE TRIAL. The twenty-four hours allowed to the prisoner by statute, in which to give bail, having expired, and no bail being offer- ed, it becomes the duty of the Justice to proceed and try the prisoner. For this purpose, he issues his order, (the form for which has just been given,) to the jailer in whose custody the prisoner may be, commanding him to bring the prisoner be- fore the Court to be tried for the offence charged. (1.) The ^isoner's jplea. "When the prisoner appears, the charge made against him, as stated in the warrant of arrest or commitment, must be distinctly read to him, and he must be required to plead thereto. The Justice must enter the plea in the minute of proceedings to be kept by him.' The statute does not specify what plea shall be entered by the Justice when the prisoner refuses to plead, but, in analogy to the provision applicable to Courts of Record, it is presumed that when the prisoner stands mute the Justice must enter a plea of not guilty.' The prisoner is entitled to all pleas and matters of defence before a Justice for an offence within his jurisdiction, that he is by law entitled to in the higher Coiirts. He may, there- fore, plead to the jurisdiction of the Justice, or demur to the complaint, or plead in abatement, or put in any plea in bar, as well as that oinot guilty.' A plea to the jurisdiction of the Justice is proper, where the offence charged is one of which he has not cognizance. In such a case the prisoner may except to the jurisdiction of the Court, without answering at all to the crime charged." > 2 E. S. 712, § T. tlce, 86. ^ id. 730, § 70. * 4Blaokstone'5 Comm. 834. ' Barbour'i Criminal Law, 024 ; DaTis' Jus- THE PEISONEe's PLEA. 649 § 155. JPlea to the Jurisdiction. ^'^^'T/^''^'''' I Before J. H. B., a Justice of the Peace The People. ) ^^ ™^ ^^^ *^^ ^^^^^^^ °^" The said William Yantine, having heard the complaint against him read, says,* that this Court ought not to take cognizance of the burglary in the said complaint charged, be- cause, protesting that he is not guilty of the same, he says the crime of burglary in the second degree is not cognizable by this Court, but is only cognizable in a Court of Sessions or of Oyer and Terminer ; and this he the said defendant is ready to verify ; wherefore, he prays judgment, if this Court will or ought to take cognizance of the complaint aforesaid, and that he may be hence dismissed, &c. "William Yaktine. A demurrer to the complaint is incident to criminal as well as civil proceedings, and is interposed by the defendant when he admits the truth of the matters charged in the complaint, but insists that they do not amount to the crime alleged, or to any crime whatever.' This pleading, however, is seldom used, as the prisoner can make the objection with the same effect under the plea of not guilty. If the demurrer is sustained by the Justice, the prisoner must be discharged ; if it be overruled, the judgment is the same as in civil cases." § 156. Demurrer to the Complaint. [As in § 155 to the * and then add:'] that the said com- plaint, and the matters therein charged and contained, are not sufficient in law, and that he the said William Yantine is not bound by law to answer the same ; and this he is ready to verify ; wherefore, for want of a good and sufficient com- plaint in this behalf, the said William Yantine prays judg- ment, and that he may, by the Court now here, be dismissed and discharged from the premises in the said complaint specified. William Yantine. A plea in abatement is generally for a misnomer.' But little advantage accrues to the prisoner from a plea in abate- ment, because, if it be allowed, a new process may be issued, according to what the prisoner avers in his plea to be his true 1 4 Blackatone's Comm. 384 * Blackatone's Comm. 834. ' Barbour's Criminal Law, 84T ; Ante, p. 214. 650 NEW-TOEK JUSTIOE. name." A plea in abatement to an indictment in a higher criminal Court is required bj statute to be verified, and it is presumed it must be verified, if interposed to a complaint in a Court of Sessions." § 157. Plea m Abatement. ^^^*^a& ^°*'''^ I Before J. H. B., a Justice of the Peace The People. j "^ ^"^^ ^°^ *^^ *^«^^*y «^ William Vantine, who is complained of here by the name of "Walter Vantine, having heard the said complaint read, says, that he was baptized by the name of "William Vantine, and by the Christian name of "William hath always since his baptism hitherto been known and called, and that he has never been called or known by the name of Walter, as in said complaint supposed ; and this he the said defendant is ready to verify ; wherefore, he prays judgment of the said complaint, and that the same may be quashed, &c. William 'Ykstysz. County, ss : William Vantine, who is complained of by the name of Walter Vantine, being sworn, says, that the above plea is true in substance and in matter of fact. Sworn, &c., \as in § 86.] Wiluam Vajstttne. A special plea in bar goes to the merits of the complaint and prosecution, and gives a reason why the party ought not to answer at all, or be put on trial for the crime alleged.' Special pleas in bar in criminal cases may be classed under two heads : 1. Former acquittal ; and 2. Former convic- tion. If the prisoner in either case proves his plea, it is a bar to any other or further proceedings against him for the same offence.* The reason for allowing these pleas is found in the provision of the Constitution of the State of New York, which declares, that no person shall be subject to be twice put in jeopardy for the same offence.' If the plea is deter- mined against the prisoner, the Justice should permit him to plead anew.' ' 4 BlaokBtone's Oomm. 886 ; Davis' Justice, 80. 80. * id. 81 ; 4 Bladcstone's Comm. 385, 8S " 2 B. 8. 781, % 71. ° Constitution of 1846, Art. t Sec 6. s 4 BlaokBtone's Comm. 885 ; Davis' Justice. • Davis' Justice, 81. TEIAL BT THE JUSTICE. 651 § 158. Special Plea in Bar. \_As in % 155 to the *, and then add .•] that the said People ought not further to prosecute the said complaint against him, the said W. V., because he saith that [insert the special plea /] and this he the said William Vantine is ready to verify ; wherefore, he prays judgment, and that, by the court here, he may be discharged, &c. William Vantine. (2.) Trial hy the Justice. Tlie prisoner may be tried with or without a jury, at his election ; and, if no jury be demanded, the Justice must pro- ceed and himself try the issue raised by the plea, and deter- mine the same according to the evidence which may be pro- duced against and in behalf of the defendant.' (3.) Trial ly a Jury. After the issue is joined, and before the Court has proceed- ed to an investigation of the merits of the case by the hear- ing of any testimony, the defendant may demand that he be tried by a jury." This demand must be made before the hear- ing of any testimony, that is, before any witnesses have been examined, and when so made the Justice is bound to comply with it. It is not absolutely necessary, to support a convic- tion, that the Justice should inform the prisoner of his right to be tried by a jury, or that the prisoner should expressly waive it.' As, however, there can be no object in keeping from the prisoner the knowledge of his right to be tried by a jury, it seems to be proper that the Justice should inform him of the privilege granted him by statute. It may be that he will be glad to exercise it ; if otherwise, he can waive it.* If the prisoner demands to be tried by a jury, his demand is to be complied with in the following manner : The Justice must issue a veni/re, directed to any constable of the county, or marshal of the city, where the offence is to be tried, com- manding him to summon twelve good and lawful men, quali- fied to serve as jurors, and not exempt from such service by .1 Laws of 1845, chap. 180, § 15; 2 E. S. 224, » 5 "Wendell, 261. §4; id.n2,§8. 4 1 Hill, 343. Md. §9. 652 NEW-TOEK JUSTICE. law, and who shall be in no wise of kin either to the com plainant or the defendant, to be and appear before such Jus- tice, at a time not more than three days from the date of the vem/re, and at a place to be named therein, to make a jury for the trial of such offence.' (As to what persons are ex- empt from service as jurors, see ante, p. 289.) § 159. Venire. Town [or, city] of , County,' [ ^^ '• To any constable of the said county, [or, to any marshal of the said city,] greeting : The People of the State of New York command you to summon twelve good and lawful men in the town [or, city] of , qualified to serve as jurors, and not exempt from such service by law, and who are in no wise of kin either to David Abbott or to William Yantine, to be and appear before me, now holding a Court of Special Sessions, at my office in the town [or, city] of , on the day of instant, at o'clock in the noon, [or, forthwith,] to make a jury for the trial of said William Vantine on a charge [as tlie cha/rge may ie /] and have you then there this precept, with a certified list of the persons you have summoned, annexed to the same. Witness my hand this [Date.] J. H. B., Justice of the Peace. The officer to whom a venire is delivered, must execute the same fairly and impartially, and must not summon any person whom he suspects to be biased or prejudiced for or against the defendant. He must summon the jurors personally, and must make lists of the persons summoned, which he is to cer- tify, and annex to the venire, and return with it to the court.' The names of the persons so returned are to be respective- ly written on several and distinct pieces of paper, as nearly of one size as may be ; and the officer by whom the venire was served, must, in the presence of the Court, roll or fold up such pieces of paper as nearly as may be in the same man- ner, and put them together in a box or other convenient thing. The Court is then to draw out six of such papers, one after another, and, if any of the persons whose names are drawn > 2 E. S. 712, § 9, ' id. ns, § 10. TEIAL BY A JUET. 653 do not appear, or are challenged or set aside, then such fur- ther number is to be drawn as will be sufficient to make up the number of six after all legal causes of challenge have been allowed. If a sufficient number of competent jurors is not drawn the Court may supply the deficiency by directing the constable to summon any of the bystanders, or others, who may be competent, and against whom no cause of chal- lenge appears, to act as jurors in the cause.' The Court has no authority to try a person on a criminal charge, by a jury of less than six." If the officer to whom the venire was delivered does not return the same as thereby required, the Court must issue a new venire, upon which the same proceedings are to be had as in respect to the first venire.' The prisoner is entitled to challenge peremptorily two of the jurors drawn,* and to challenge for cause as many as he may see fit. (As to challenges of jurors for cause, and to the powers of Courts to discharge and excuse jurors, see ante, p. 29i.) The jurors are not entitled to any fees. If they fail to ap- pear, they are subject to like penalties, and may be proceeded against in the same manner, as jurors who refuse to appear in a Justice's Court.' To each juror the Justice must administer the following oath or affirmation : You do swear, in the presence of Almighty God, [or " you do solemnly affirm," as the case may ie,'] that you will well and truly try this traverse between the People of the State of New York and the defendant, and a true ver- dict give according to the evidence, unless discharged by the Court.' After the jury are sworn, they are to sit together and hear the proofs and allegations in the case, which are to be deliv- ered in public and in presence of the defendant.' 1 2 E. S. 713, |§ 11 to 14. • a E. S. 716, § 86, 87 ; Ante, p. S ' 1 Hill, 848. « 2 E. 8. 713, § 15. > 2 E. S. 718, 5 14. ' id. § 17. * Laws of 1847; ehap. 134. 654 NEW-TOEK JUSTICE. (4.) Witnesses. At the time of issuing the venire, the Justice, if he has not before done so, should issue subpoenas for the witnesses, and deliver them to the ofBcer to be served.' He must endorse upon the back of each subpoena a memorandum, showing whether the same was issued for the people or for the prison- er." Every officer or person who inserts the names of wit- nesses intended for the prisoner, in a subpoena issued for the people, with intent thereby to deceive any person, or to ob- tain any pay as for services in subpoenaing witnesses for the people, is guilty of a misdemeanor." The Justice is not enti- tled to charge for more than six subpoenas in any one crimi- nal ease, and the board of supervisors are not to allow any charge for issuing or serving any subpoena, in any criminal case or proceeding, issued or served on behalf of a defendant.' The witnesses are not entitled to any fees. If they refuse to obey the subpoena, they may be proceeded against in the same manner as witnesses who refuse to appear in a Justice's court." § 160. Su'bj)cena. County, ss : The People of the State of New York, to [witnesses' names,] greeting : We command and enjoin you, and each of you, that, all business and excuses being laid aside, you and each of you be and appear before the undersigned, one of the Justices of the Peace of the said county,' now holding a Court of Special Sessions, at his office in , in said county, on the day of , at o'clock in the noon, [or, forth- with,] then and there to testify to those things which you or either of you know, in a certain matter then and there to be tried, between the people of the State of ISTew York, and W. Y., on the part of the said people, [or, W. Y.] Hereof fail not at your peril. "Witness my hand this day of , 1853. J. H. P., Justice of the Peace. The Justice must administer the proper oath to the witness- 1 2 K. 8. 716, § 35. , « id. a Laws of 1845, chap. 188, § 13. "2 E. S. 716, §§ 86, 87; Ante, pp. 874, 27& >id. ■wrriTESSEs. 655 es.' The provisions of law as to the mode of administering oaths have been heretofore cited, {cmte, pp. 299, 300.) The following form may be used where the person who swears lays his hand upon and kisses the Gospels :" § 161. Oath to Witness. You do swear that the evidence yoxi shall give on this issue of traverse between the people of the State of New York, and W. v., the defendant, shall be the truth, the whole truth, and nothing but the truth, so help you God. Where the witness desires to swear without laying his hand upon or kissing the Gospels,' or is permitted to afhrm ;* the foregoing form may be varied as in Forms § 58 and § 59, {ante^ p. 299.) (5.) Evidence. The subject of evidence has already been considered in a former part of this work, but it may not be improper here to state a few of the general rules which should govern the Jus- tice in the admission or rejection of testimony in criminal proceedings. The prosecution cannot give evidence of the prisoner's character, unless the prisoner has himself called witnesses in support of it ; and even then the prosecution cannot call wit- nesses as to particular facts.' Evidence of a good character is of no avail in a clear case.° "Where the prisoner pleads not guilty, the prosecution must prove every fact and circumstance which is material and ne- cessary to constitute the offence.' And the offence must be proved to have been committed in the county of the Justice holding the Court, or he has no jurisdiction.' A particular time, unless where it enters into the essence of the offence, as in burglary, need not be precisely proved, though stated in the charge." If the offence charged relates to the taking of certain spe- cified goods, the evidence must correspond with the descrip- 1 2 E. S. T16, § 35. " Barboui'8 Criminal Law, 395. 2 id. 40T, § 83. ' id. s id. § 83. 8 2 E. S. Til, § 1 ; 1 Ohitty's Crimiiial Law, 4 id. § 84 559. s 14 Wendell, 111, » Barbour's Criminal Law, 89T. 656 NEW-TOEK JTTSTICE. tion of goods charged in the warrant of arrest or commitment.' A charge of stealing boots is not supported by evidence of stealing a pair of shoes.' Proof of a particular value or sum charged, is not necessary, unless it forms the essence of the oflPence, or is matter of de- scription, as in forgery.' The identity of the prisoner must be established, and this is a question for the jury.* It lies upon the prosecution to prove the commission of the offence, and not upon the prisoner to prove his innocence.' As a general rule, a husband and wife cannot be witnesses either for or against each other." The credibility of witnesses is governed by rules similar to those which apply in civil cases,' which have already been stated.' (6.) Verdict of the Jury. After hearing the proofs and allegations, the jury are to be kept together, in some convenient place, until they agree on a verdict, or are discharged by the Court ; and a constable or marshal must be sworn to keep them, in like manner as upon a trial in a Justice's Court." The constable is bound to take charge of the jury, and may, if he refuses, be punished by a fine not exceeding twenty-five dollars." § 162. ConstcibMs Oath on retiring with Jury. You do swear, in the presence of Almighty God, that you will, to the utmost of your ability, keep the persons sworn as jurors on this trial, together, in some private and convenient place, without any meat or drink, except such as shall be or- dered by me ; that you will not suffer any communication, orally or otherwise, to be made to them ; that you will not communicate with them yourself, orally or otherwise, unless by my order, or to ask them whether they have agreed on their verdict, until they shall be discharged ; and that you will not, before they render their verdict, communicate to any person the state of their deliberations, or the verdict they agreed on. 1 Aroliibflld'8 Criminal Pleadings, 66. • Ante, p. 86a a id. '1 Ohitty's Criminal Law, 463. » 6 Term. Eep. 265. " Ante, p. 8TT. « Barbour's Criminal Law, 893. • 2 K. S. T13, § IT ; Ante, p. 305. « 1 Chitty'a Criminal Low, 664. >» 2 E. S. 668, § B. GENEEAL EtTLES. 657 (7.) Oeneral Rules. When the jurors have determined upon their verdict they are to deliver the same to the Court, publicly, and the Justice must enter it in the minute of the proceedings to be kept by him.' The Court has the power, and it is its duty, to issue a sec- ond venire for a jury to try a defendant in a criminal case, if the first jury are discharged because they cannot agree upon a verdict." ISTo Court can be opened, or transact any business, on Sun- day, unless it be for the purpose of receiving a verdict or dis- charging a jury ; and every adjournment of a Court on Saturday to another day, must always be to some other day than Sunday, except such adjournment as maybe made after a cause has been committed to a jury.' Where a cause was submitted to a jury at two o'clock in the morning of Sunday, and the jury rendered their verdict about three o'clock, it was held, that the conviction was erroneous, and it was reversed.* A case may be adjourned from Saturday until Monday and such adjournment will not be a keeping of the Court open on Sunday, within the meaning of the statute." "If, after the trial is commenced, it is postponed at, the re- quest of the prisoner, for several days, and the jury are allowed to separate, under instructions from the Court not to converse with any one in relation to the case, such postpone- ment constitutes no reason for reversing the conviction." 6. PEOCEEDINGS SUBSEQUENT TO THE TRIAL. When the defendant is convicted, the Court must render judgment, and award such punishment, by fine or imprison- ment, or both, as the nature of the case may require ; but such fine can in no case exceed fifty dollars, nor such impris- onment six months.' On a conviction of any of the ofiences heretofore specified,' as within the jurisdiction of Courts of Special Sessions, the Justice may fine or imprison, or both, (always, however, > 2 E. B. ns, § 18. »5WenaeU,t)80. • 6 "Wendell, 580. • 5 Hill, 82. » 2 E. B. 275, § T. ' 2 E. B. T14, § 19. ■' ' ■ ■ « 8 Barbour, 884. » Ante, pp. 642 to 645. 43 658 NBW-TOEK JUSTICE. within the limit of a fine not exceeding fifty dollars, and im- prisonment not exceeding six months,) except in the cases of selling poisons without labels, and of defacing or destroying mile posts, &c., in regard to which the punishment that may he awarded by the Justice has been heretofore stated.' If the prisoner is acquitted, he must be immediately dis- charged." It is not necessary that a defendant in a criminal proceeding should be present in Court when judgment is pronounced, except when corporal punishment is to be awarded.' The Justice must keep minutes of the proceedings had be- fore him on the trial. They may be in the following form : § 163. Minutes of Proceedings. County, ss : Minutes of a Court of Special Sessions held at [city, or town,']m said county, before J. H. B., Esquire, a Justice of the Peace of the said county, for the trial of William Vantine, charged before the said Justice, by D. A., with [state the offence.] " December 16th, 1852. The Court convened at the office of the said J. H. B., at 10 o'clock A: M., the said complainant and defendant being both present. The defendant was ar- raigned, and the complaint was read to him, [or, the charge , made was stated to him ;] whereupon he pleaded not guilty, and demanded a trial by jury. A venire was issued to Nor- man Parker, constable, returnable forthwith, and the persons summoned as jurors appearing, six were drawn and sworn as jurors, as follows: [insert names.] The following witnesses were sworn on behalf of the people : [insert names ;] and the following on the part of the prisoner : [insert names.] After hearing the proofs, the jury retired under the charge of the said Parker, and at 12 M. returned into Court, and declared that they found the prisoner guilty. Whereupon, the said William Yantine was sentenced by me to pay a fine of [ten dollars,] and to be imprisoned in the county jail for [ten] days. J. H. B., Justice of the Peace. After the prisoner has been convicted, the Justice must make up and sign a certificate of conviction, in which he must state briefly the offence charged, the conviction, and the ' Ante, p. CM. • 12 Wendell, 844. J 2 E. 8. 714, §20. PEOCEEDINGS SUESEQTIENT TO THE TEIAl. 659 judgment thereon, and, if any fine has been collected, the amount thereof, and to whom paid. This certificate is to be filed, within twenty days after the conviction, in the oQice of the clerk of the county in which the conviction was had.' § 16i. Certifioate of Conviction at /Special Sessions. State of I^ew-Tork,) , County, f^^ = i3e it remembered, that at a Court of Special Sessions, held bjr the undersigned, a Justice of the Peace of the said county, this day of j 18 , at his ofiice in the town of , in said coimty, "W. V. was brought before the said Court, charged on the oath of J). A., with having, on the day of 5 18 , at the town of , in said county, &c., [state the offence .•] which charge, [or, char- fes,] being stated in the warrant by me issued, [or, issued by . T., Esq., one of the Justices of the Peace of the said county,] was [or, were] distinctly read to the defendant in open Court, to which he pleaded not guilty, [w, guilty :] whereupon such proceedings were had in the said Court, that the defendant was convicted of the charge [or, charges] above specified,* and the Court rendered Judgment thereon, that the said W. Y., &c., [as the judgment may 5e.] In witness whereof, I have subscribed these presents, the day of , 18 . ^5^1 , -^ * ^ J. H. B., Justice of the Peace. This certificate, or a duly certified copy thereof, is evidence in all Courts and places, of the facts stated therein,' and will be received as such, in a collateral proceeding, although it does not show that the Court had obtained jurisdiction of the person of the prisoner.' It should, however, state sufficient to show an oflfence within the jurisdiction of the Justice,* and the place where the offence was committed should appear.' The fine imposed by the Justice, if paid before commitment, must be received by him and applied to the payment of the charges of apprehending and prosecuting the offender ; and, after deducting the sums allowed therefor, the remainder, if any, must be paid by the Justice, within thirty days after the receipt thereof, to the county treasurer, for the use of such J 2 E. 8. TIT, §§ 88, 39. / ^ /^.>» > v • ;' . M Johnson, 292. Hid. §41. » 14 id. 374. »TBailioui,462. 660 NEW-TOEK JUSTICE. county.' If the defendant is acquitted, lie is to be discharged without being required to pay any fees.'' The judgment of the Court must be executed by the sheriff, constables, and marshals of the county, or city and county, in which a conviction is had, by virtue of a warrant, under the hand of the magistrate who held the Court, to be directed to such oificers, or to such of them as may be necessary, and specifying the particulars of the judgment.^ A Court of Special Sessions before which a conviction is had, may cause its judgment to be executed, notwithstanding notice of an intention to remove the convidtion to a higher Court, and the entering into a recognizance by the defendant, if a certiora/ri is not actually sued out.' A warrant of commitment issued by a Justice of the Peace upon a conviction for petit larceny, is void, unless it be di- rected to the officer, or class of officers, by whom it is to be executed ; and will afford no protection to the constable who executes it. The Legislature, by the section of the statute relative to warrants of commitment issued by Courts of Spe- cial Sessions, did not intend to prescribe a form for such warrants, or to vary the common law rule respecting them. Hence a warrant which would be good at common law is \ 165. Wa/rrant of Commitmient from Sjpecial Sessions. State of New-York, ) County, p^ = To any Constable of the said County, greeting : At a Court of Special Sessions, duly held by the under- signed, &c., [as in § 164, to the*, mid then add .•] and the Court having rendered judgment thereon, that the said W. v., &c., [as the judgment mayle;'\ Therefore the people of the State of New-York command you to convey the said W. Y. to the common jail of the said county, the keeper whereof is hereby required to keep him in safe custody in the said jail, until the judgment so rendered be satisfied, or he be dis- charged by due course of law. "Witness my hand, this day of , 18 . J. H. B., Justice of the Peace. > 2 E. 8. 716, § 82. < 6 Wendell, 110. > Id. T47, § 88. '6 Barbour, 654. > Id, T16, § 81. PEOCEEDnSTGS SUBSEQUENT TO TITE TEIAL. 661 This warrant must be executed by tbe officer to whom it is directed and delivered ; and if he refuses, he is liable to a fine not exceeding twenty-five dollars.' If a fine is imposed upon the defendant, and he does not pay it until after he is committed to prison, he must pay it to the sheriff of the county, by whom it is to be paid to the coimty treasurer, to be applied in the same manner as if it had been paid to the Justice holding the Court." If the Justice or the sheriff neglect to pay to the county treasurer the fines received by them respectively, or the part that is to be paid to him after deducting the charges before mentioned,^ it is his duty immediately to commence a suit therefor, and prosecute it to effect.' The prisoner may apply to the County Court of the county in which he was convicted, for the remission of the fine imposed upon him, and that Court may remit the fine, but cannot discharge him from the imprisonment.' If the fine, however, was imposed for a contempt of Court, it cannot be remitted." Whenever any person under the age of sixteen years is convicted of any crime in the first, second and third judicial districts, the Court, instead of sentencing such person to im- prisonment in the county jail, may order that he be removed to and confined in the House of Hefuge established by the society for the reformation of juvenile delinquents in the city of New-York.' The several Courts having criminal jurisdiction, and who shall hold Courts, within the limits of the fourth, fifth, sixth, seventh and eighth judicial districts, are required to order all juvenile delinquents by them respectively sentenced, to be removed to the western House of Eefuge for juvenile delin- quents in the city of Rochester.' The Courts of criminal jurisdiction, and the several magis- trates, of the county of Monroe, may also, in their discretion, send to the House of Eefuge in Eochester, any male under 1 2 K. S. 5S2, § 3. 5 Code, § 80 ; 2 E. S. 486, § 3T. 2 id. 716, §88. 8 id. §88. 8 Ante, p. 659. 'id. TOl, § IT ; Laws of 18i0, chap. 100. 1 2 E. S. 716, § 84 e Laws of 1850, chap. 24, § 1. 662 NEW-TOEK JUSTICE. the age of sixteen years wlio may be convicted before tliem as a vagrant.' Every Court so sending a juvenile delinquent to a house of refuge, must ascertain, by such proof as may be in its power, the age of every person so sentenced, and insert such age in the order of commitment." 6. JUDGMENT WHEN THE COMPLAINT "WAS MALICIOUS. , ' The Eevised Statutes provide that -whenever a defendant, tried by a Court of Special Sessions, is acquitted, he shall be immediately discharged, and, if the Court before which the trial was had, certify in its minutes that the complaint was wilful and malicious, and without probable cause, it is the- duty of the complainant to pay all costs that shall have accrued to the Court and constable, in the proceedings had upon such complaint, or to give satisfactory security, by a bond to the people of this State, to pay the same in thirty days after the trial. If the complainant refuses or neglects to pay such costs, or to give the security, the Court may forth- with enter judgment against him for the amount of the costs, and commit him to the jail of the county where the trial was had, there to remain in like manner, and for the same time, as if committed on a Justice's execution in a civil cause, until he shall satisfy such judgment, with the costs of the commit- ment, or until he shall be discharged by due course of law.' But these provisions of the statute, are, it is supposed, virtu- ally repealed by the 16th section of the act of May 10th, 1845, which is in these words : " Whenever a magistrate or jury before whom a criminal cause shall be tried, under the provisions of this act, shall be satisfied from the evidence and proceedings had before them, that the person or persons charged and tried, were complained of and proceeded against without probable cause, and with malicious intent to injure or harrass, they may render a verdict for costs against the complainant ; whereupon the magistrate shall enter judgment for the amount of such costs, upon which an execution may I Laws of 1846, chop. 143, §16; laws of = Laws of 1S52, chap. SST, §2. 16D0, chap. 804. = 2 K. S. T14, §§ 20, 21. SPECIAL SESSIONS m PAETICULAE LOCALITIES. 663 issue against the property or person of such complainant, in the same manner as upon a judgment rendered for a tort by a Justice of the Peace/ As to executions forjorts, see ante. CHAPTEE IX. OF COURTS OF SPECIAL SESSIONS IN PARTICULAR LOCALITIES. Albany.] The act of March 27th, 1849," provides as fol- lows : § 1. "There shall be held in the city hall of Albany, on Tuesday of each week, by the recorder of the said city, or in case of his absence or inability, by the county judge of the city and county of Albany, together with one or more of the Justices of the Peace of the said city, to be associated with such recorder or judge, a Court of Special Sessions, which shall have power to hear and determine all cases of petit larceny charged as a first offence, and all misdemeanors not being infamous crimes ; and which may be held and continued for such length of time as the said court shall deem proper. § 2. Upon charges for offences triable by the said Court, the police magistrate and other magistrates in the said citj^ hearing the same, may take recognizances in the cases provi- ded by law, returnable at the said Court ; and all such recog- nizances as shall have been so taken, shall be returned to and filed with the county clerk of Albany county, who shall be the clerk of the said Court, and shall attend the same in per- son or by deputy. § 3. All complaints and examinations taken by such magis- trates shall, on or before Saturday of the week preceding any term of the said Court, be delivered to the district attorney of the county of Albany. 1 Laws of 1845, cbap. 180, § 16. » Laws of 1849, ciap. 150, §§ 1 to 6. 664: NEW-TOEK JUSTICE, §4. It shall be the duty of the district attorney in person, or by his assistant, to attend the said Court and conduct the proceedings and trials therein, in behalf of the people of this State ; and he shall have the same power to issue subpoenas for witnesses to attend the said Court, as in cases triable in the Court of Oyer and Terminer, and disobedience thereto may be punished by the said Court of Special Sessions in the same manner as the Court of Oyer and Terminer in like cases. § 6. The complaint and charge against the accused shall be tried, and the proceedings thereon shall be had in all respects as provided in articles first and third of title third, chapter two, of the fourth part of the Eevised Statutes, except as herein otherwise provided, and except that the party accused shall not be required to give bail to appear at any other Court of criminal jurisdiction ; nor shall the giving of any such bail deprive the said Court of the jurisdiction herein conferred, unless the county judge, or a Justice of the Supreme Court, shall certify that the charge is one which ought to be tried in some other Criminal Court." The charge made against the defendant, as stated in the warrant of arrest or commitment, or in the complaint preferred before the magistrate who issued the warrant or commitment, must be distinctly read to such defendant, who must be required to plead thereto.' • The act of 1849" further provides : " § 6. Tlie clerk of the said Court shall enter all its proceed- ings and its sentences or all convictions had therein, in full, in a book of minutes to be by him kept for that purpose, and he may administer all oaths and affirmations required by law to be administered in the said Court. § 7. The clerk of the said Court shall make out and deliv- er to the sheriff of the said county, or to any constable of the said city, a transcript of the entry in the said book of min- utes, of every conviction made by the said Court, and of the sentence thereon, which being duly certified by the said Clerk, shall be sufficient authority to such sheriff or other of- J Laws of 1851, chap. 4M, § 2. « Laws of 1849, chap. 150, §§ 6 to 10. SPEOtAl SESSIONS DT PAETICULAE LOCALITIES. 665 ficer to execute such sentence, and he shall execute the same accordingly. § 8. All fines imposed by the said Court shall be paid to the clerk thereof, or to the sheriif of the said city and county, who shall within ten days after the receipt thereof, pay the same to the chamberlain of the said city, in the same man- ner and subject to the same penalties for neglect, as provided in respect to fines imposed by Courts of General Sessions. § 9. It shall not be necessary to file any certificate of a conviction made by the said Court, but a duly certified copy of the entry of any such conviction, made by the clerk of the said Court in the said book of minutes, shall be evidence in all Courts and places, of the facts stated therein." The Court of Special Sessions, as thus organized, has power to take recognizances to appear before the said Court at any succeeding term or session, from any person charged with any crime or misdemeanor triable therein, and also to enforce sentence of fine, or imprisonment, or both, in the discretion of the Court, in all cases within its jurisdiction, upon convic- tion, to the same extent that is conferred by law upon the Court of Sessions of Albany county, upon conviction for like offences.' Whenever any person recognized to appear at the said Court of Special Sessions, to answer for a complaint for any criminal offence triable therein, neglects to appear agreeably to the requirements of such recognizance, or at any term of such Court to which the trial of such person upon such com- plaint may have been postponed, said Court has power to is- sue a warrant for the arrest of such person, which warrant must command the officer executing the same, to bring the party forthwith before such Court, if it be in session at the time of such arrest, and if not, then to commit him to the common jail of the county, there to remain till delivered by due course of law.' No Court of Special Sessions of the Peace organized in any town adjoining the city of Albany, has jurisdiction of any criminal offence charged to have been committed within the 1 Laws of 1851, chap. 481, § 1. ' Laws of 1852, chap. 2B5. 666 NEW-TOEK JUSTICE. limits of that city, unless a majority of such Court consist of magistrates of the said city residing within the same.' Un- der the provisions of the statute requiring Courts of Special Sessions to be held by a single magistrate, it is supposed that the foregoing restriction takes away from magistrates residing out of the city of Albany all jurisdiction over offences charged to have been committed within the limits of that city. "Whenever any person, being a resident of the city of Al- bany, is arrested anywhere in the county of Albany, for any criminal offence charged to have been committed in the city of Albany, it is the duty of the ofl&cer making such arrest, to carry the person so arrested before some magistrate residing in said city, there to be dealt with according to law ; and ev- ery warrant issued in any such case must be made returnable before some magistrate residing in said city, and not else- where." BraoUyn.} The act of March 24th 1849,' provides as fol- lows : " Either of the Justices of the Peace, or the Police Justice, of the city of Brooklyn, shall have power to hold a Court of Special Sessions alone, and shall have jurisdiction also other than that heretofore given them, to try any person arrested in said county, who may be brought before them or either of them, charged with an affray, riot, malicious mis- chief, or cruelty to any animal, committed -within said coun- ty ; and in all cases which are triable in such Court of Spe- cial Sessions, the party accused shall not be required to give bail to appear at any other Court of criminal jurisdiction, un- less the city judge of said city, the county judge of said county, or a Justice of the Supreme Court, shall certify that the charge is one that ought to be tried in some other crimi- nal Court ; and the said Justices, except the Police Justice, shall have the like jurisdiction in all civil cases as is now ex- ercised by the Justices of the Peace of the towns in this State, in addition to the powers and jurisdiction given them under the said act hereby amended ; and no Justice of the Peace, other than the Police Justice and the Justices elected 1 Laws of 18il, cliap. 156, § 2. ' Laws of 1S49, chap. 125, § S3, as amended by 2 id. § 8. La-ivs of 1850, chap. 102, § 16. SPECIAL SESSIONS IK PAKTICULAB LOCALITIES. 667 in the city of BrooHyn, shall have or exercise any civil or criminal jurisdiction in said city." JVew-Yorh'] Any three judges of the Court of Common Pleas for the city and county of ISTew-Tork, of whom one of the elected Judges of said Court, the mayor, city judge, or recorder, must always be one, are required to hold a Court of Special Sessions in said city as often and at such times as the judges may deem expedient ; and it is the duty of the recor- der or the city judge to preside therein, except when actually engaged in the Court of General Sessions. The common council are, from time to time, to designate aldermen to assist in such Court." The city judge is authorized to perform and discharge, concurrently with the recorder, all judicial duties imposed upon the latter." "When any person charged with having committed petit larceny, or assault and battery not riotously, is, upon his ex- amination before any Police Justice in the city, required to enter into a recognizance, with sureties, to appear at the pro- per Court to answer the charge and demands, at any time, to be tried by the Court of Special Sessions, that Court is to proceed to hear and determine the accusation.' If the person so charged does not require to be thus tried, and does not, within twenty-four hours after being committed on such charge, enter into a recognizance, with sureties, to appear at the next Court of General Sessions to be held in the said city and county, and answer to such charge, the said Court of Special Sessions may proceed to hear and determine upon such accusation ; and, in hearing and determining such charge, the Court is to proceed in all respects as Courts of Special Sessions held in other counties of the State, except as to the summoning of a jury. If the offender is convicted, the Court must sentence him to the punishment prescribed by law.' The jury, it is supposed, are to be summoned in the manner prescribed by the act regulating the selection and drawing of jurors generally in the city of !N"ew-Tork.^ 1 2 E. 8. 716, § 24; Laws of 184T, chap. 285, s 2 e. 8. T14, § 22. § 7 ; Laws of 1851, chap. 441, § 2. * id. 715, §§ 23 to 25. > Laws of 1850, chap. 205, § 3. 6 Lj^g of 1847, chap. 495, §§ 2 to 4. 668 NEW-TOEK JTJSTICE. Any person tried and sentenced, without having demanded a trial, may appeal from such sentence to the Court of Gen- eral Sessions of the city and county of ITew-York. Such ap- peal must be made at the time the sentence is pronounced, and the conviction is thereupon void. The Court of Special Sessions must enter the appeal in its minutes, and proceed as if no trial had been had, and take a recognizance from the accused, with sufficient sureties, to appear at the General Sessions of the said city and county. If the prisoner does not or cannot give the recognizance, he is to be committed to prison ; and the same measures are to be taken to secure the attendance of witnesses in behalf of the prosecution, as in cases where a complaint is made before, a magistrate.' The Court of General Sessions is to proceed in the same manner as though no trial or conviction had been had." An account is to be rendered every thirty days by the Court to the city comptroller, of the expenses attending the Court, and the fines imposed or collected.' The clerk of the Court of General Sessions is clerk of the Court of Special Sessions, and it is his duty to enter all pro- ceedings of the latter Com*t, and the sentences on all convic- tions had therein, in full, in a book of minutes to be kept by him for that purpose, and to administer the oaths or affirma- tions required by law to be administered in the Court. When- ever sentence is pronounced upon any person convicted, the clerk is to make and deliver to the sheriff, or his deputy, a certified transcript of the entry of such conviction in the min- utes of the Court, and of the sentence thereupon. Such tran- script is a sufficient authority to the sheriff or deputy to exe- cute such sentence, and he must execute the same accordingly. All fines imposed by the Coiu-t are to be received by the sheriff, who is to pay the same, within thirty days, to the city treasurer, in the same manner and under the same require- ments as fines imposed by the Court of Special Sessions. Transcripts of convictions had in the said Court are not re- quired to be certified by the magistrates holding the said Court, 1 Ante, p. 681. » id. T16, § 8 = 2 E. S. 715, §§ 26 to 29. SPECIAL SESSIONS IS PAETICITLAE LOCALITIES. 669 or filed ; but a duly certified copy of any such conviction, made by the clerk of tlie said Court, is evidence in all Coui'ts and places, of the facts contained therein.' Oswego.] The act of March 26th, 1849," provides as fol- lows : " The recorder of Oswego, as Police Justice, shall, in addition to his other powers, have all the powers of Justices of the Peace, in criminal matters and proceedings, and while holding Courts of Special Sessions, shall, in addition to, and including the cases now specified, have power, and it shall be his duty to try, unless for good cause shown he shall order the same to be put over, the following ofi'ences committed within his jurisdiction: all cases of malicious mischief or injury; all offences against public decency ; selling unwholesome provis- ions ; cheats ; breaches of the peace ; cruelty to animals ; dis- obeying commands of ofl&cers to render assistance in criminal cases ; violating the laws and ordinances relating to health, applicable to said city ; obstructing officers in discharge of their duties; adulterating distilled spirits, or selling such adulterated spirits ; cheating at play ; winning or losing twenty- five dollars within twenty-four hours ; not delivering marked property; driver of carriage running his horses; defacing marks, or putting false marks on floating timber ; all offences against the laws and ordinances relating to excise, and the regulation of taverns and groceries, applicable to said city ; all cases of drunkenness ; all violation against the laws and ordinances of the city of Oswego, when such violation is a misdemeanor; all attempts to commit any of the offences herein named or referred to, when such attempt shall be a misdemeanor." PoughTceepsie.] The recorder of the village of Poughkeep- sie has exclusive jurisdiction as a Court of Special Sessions, to try all criminal matters.' Eoehester and Sa/ratoga /Springs.] There are no especial statutory provisions relating to the organization and proceed- 1 Laws of 1880, chap. 43, §§ 4 to T. ' Laws of 1849, chap. 86 ; Ante p. 620. 2 Laws of 1849, chap, 134, § 2. 670 NEW-TOEK JtrSTIOE. ings of Courts of Special Sessions in these two places, except such incidental provisions as occur in the acts authorizing the election of Police Justices, to which reference has been made.' UlMa.] The act of May 7th, 1844,° provides as follows : " All Courts of Special Sessions of the Peace in said city, shall be held by said recorder and two aldermen of the said city, who shall be notified to attend said Court by said recorder ; and said Court is hereby invested with all the authority de- volved upon Courts of Special Sessions, for the trial, convic- tion and punishment of offences, and in the summoning of ju- rors for such trial. The said recorder is hereby invested with all the authority possessed by any Justice of the Peace in hearing complaints, issuing process, causing arrests, compel- ling the attendance of witnesses, taking examinations and re- cognizances, letting to bail, binding over and committing in criminal cases. If the recorder shall be absent or unable to attend on the return of any warrant issued pursuant to this act, in such case any judge of the County Courts of said county or the mayor of said city may perform any of the powers vest- ed in said recorder, for the examination, trial and punishment of the defendant arrested on said warrant. It shall be the duty of the aldermen of said city to attend such Courts of Special Sessions when notified to do so by said recorder, or said judge or mayor in the cases provided for by this section." In view of the statute so freqiiently referred to, requiring Courts of Special Sessions to be held by a single magistrate, it is presumed that either of the officers alluded to in the above section would be authorized to hold a Court of Special Sessions." WatervUet.'] The act of April 2d, 1850,' provides as follows : " Section second, article first, title third, chapter second of the fourth part of the Eevised Statutes,' in its application to the town of Watervliet, in Albany county, is so amended as to read as follows : When any person charged with any offence, as is specified » Ante, pp. 521, 522. * Laws of 18B0, chap. 139, §§ 1 to 8. » LawB of 1844, chap. 819, § 6. " 2 E. 8. Til, § 2 ; Ante, p 646. » Laws of 1846, chap. 180, § 4 SPECIAL SESSIONS DT PAETIOULAE LOCALITIES. 671 in the first section of said article/ or with the commission of any of the acts or offences designated in the first section of title five, chapter twenty of part first of the Eevised Statutes," or shall be charged with habitual drunkenness and disorderly conduct, shall be brought before any Justice of the Peace of said town of "Watervliet, such Justice shall, upon conviction of such ofl'ender, have power to punish by fine not exceeding fifty dollars, or by imprisonment in the penitentiary of said county not exceeding six months, or by both such fine or im- prisonment. When any person charged with any offence, as specified above, shall be brought before such Justice, it shall be his duty forthwith to hear, try and determine such complaint or pros- ecution according to the provisions of said article first, title third, chapter second of the fourth part of the Revised Stat- utes," whether the person charged with such offence requests to be tried or not ; and before entering upon such trial, such Justice may, in his discretion, adjourn the hearing or trial thereof from time to time, for the purpose of procuring mate- rial testimony, either on the part of the people or the accused, for a period not exceeding ninety days ; and such Justice may commit the accused to jail until such day, or suffer such ac- cused to go at large upon his or her executing to the people of the State of ISTew-Tork, and filing with said Justice, a bond, to be approved by him, in the penalty of not exceeding three hundred dollars, conditioned for the personal appearance of said accused before such Justice on the day to which the hearing or trial shall be adjourned, and that he will not depart there- from without the leave of the Court. Every bond so given, which shall be forfeited, shall be re- turned to the next Court held in and for said, county of Alba- ny, exercising criminal jurisdiction, and shall be prosecuted, collected and applied as if the same had been originally made returnable to said Court." Williamsburgh.'] The Police Justice of this city is author- i2E.S.ni,§l; Ajite,p.642. s 2 E. S.711, § 1; Ante, p. » 1 E. S. 688, § 1 ; Post, Part III, Chap. XL 672 NEW-TOEK JTrSTIOE. ized to try all criminal cases as a Court of Special Sessions, that might formerly be tried by a Court of Special Sessions in the town of "Williamsburgh.' CHAPTER X. OF THE"COMPROMISE OF OFFENCES. The statute provides, that where any person shall be bound by recognizance to appear, or shall be committed to prison, on any charge for an assault and battery, or other misdemean- or, for which the injured party shall have a remedy by civil action, except when such assault and battery or misdemeanor is charged to have been committed by or upon any officer or minister of Justice whilst in the execution of the duties of his office, or riotously, or with an intent to commit a felony, if the injured party appears before the rt^agistrate by whom the recognizance was taken or the commitment made, or before any judge of the County Courts, and acknowledges in writing that he has received satisfaction for such injury and damages, the magistrate or judge may, in his discretion, on payment of the costs which have accrued, by an order under his hand, discharge such recognizance, or supersede the commitment of the offender ; and may, in like manner, discharge every rec- ognizance which may have been taken for the appearance of any witnesses in such case. Every such order discharging any recognizance is to be filed in the office of ihe county clerk ; and the order suspending the commitment of the offend- er, is to be delivered to the keeper of the jail where he is con- fined, who, upon receiving it, must immediately discharge him.' There can be no compromise, however, after a con- viction.' 1 Laws of 1851, chap. 91 ; Ante, p. 527. > 6 Wendell, 111. » 2 E. S. 780, §§66, 67. COMPEOMISE OF OFFENCES. 673 The compounding or compromising of offences which are punishable with death, or by imprisonment in the state prison for any term, is expressly forbidden by statute.' § 166. Aoknowledgment of Satisfaction. County, Bs : I hereby acknowledge that I have received from "William Vantine, live dollars, in full satisfaction and compensation for all injury and damage done to me by the said William, on the day of , 1853, by assaulting and beating me, whereof I complained to J. H. B., Esq., a Justice of the Feace of the said county, on the day of , 1853 ; and I pray that the said William Vantine may be released from his imprisonment, and that no further proceedings may be had against him. Dahiel Abbott. § 167. Order Superseding the Oommitment of the Prisoner. County, ss : To the keeper of the common jail of the said county: Daniel Abbott, for assaulting and beating whom, William Vantine was committed by me to your custody on the day of , 1853, having this day acknowledged in writing that he has received satisfaction for the injury and damage he sustained by reason of such assault and beating, you are here- by required, on the receipt of this order, to discharge the said William Vantine from your custody in the said jail, unless he be therein detained by' you for some other cause. Witness my hand and seal this day of , 1853. J. H. B., [l. s.] Justice of the Peace. § 168. Order discharging the SecognizoMces of the Prisoner and the Witnesses. County, 8S : Daniel Abbott, the complainant within named, having ap- peared before me, the Justice by whom this recognizance was taken, and acknowledged in writing that he has received sat- isfaction for the injury and damage therein complained of, I hereby order this recognizance to be discharged. Witness my hand, this day of , 1863. J. H. B., Justice of the Peace. This discharge is to be endorsed upon each of the several recognizances. » 2 E. S. 689, §1 IT, 18 ; Ante, p. 624. 44 674 NEW-YOEK JUSTICE. CHAPTER XL OF PROCEEDINGS TO REVERSE JUDGMENTS IN CRIMINAL CASES. If the prisoner is dissatisfied with the judgment of the Justice, or believes that he has been erroneously convicted, he is permitted to remove his conviction into the Supreme Court by a writ of certiorari. A writ of certiorari, to remove into the Supreme Court any conviction had before a Court of Special Sessions, may be allowed, on the application of the party convicted, by any Justice of the Supreme Court, or by any officer authorized to perform the duties of such Justice in vacation ;' that is by a county judge," or by a local officer elected to discharge the duties of county judge, or of county judge and surrogate, or of a surrogate.^ The party desiring such certiorari, or some one in his be- half, must apply for the same within ten days after the con- viction shall have been had, and must make an affidavit specifying the supposed errors in the proceedings or judgment complained of.* § 169. Affidavit to oitaim, a Writ of Certiorari. County, ss : "William Vantine, being duly sworn, says, that on the day of , 1853, he was tried and convicted by a Court of Special Sessions held at [city or town,] in said county, by J. H. B., Esquire, a Justice of the Peace of the said county, of an assault and battery upon the person of one Daniel Abbott, and that he was adjudged and sentenced by the said Justice therefor to pay a fine of [ttn] dollai's, and to be imprisoned in the county jail of said county for [twe^ity] days. And this deponent further says, that he was tried by said Justice and a jury ; that the said jury were summoned by one Norman Parker, a constable, without the issuing of any venire 1-2 E. 8. 717, § 42. ' Laws of 1841, chap. 108, § 1. " Code, § 403. < 2 E. S. 717, § 48. PEOCEEDINGS TO EEVEESE JUDGMENTS. 675 by the said Justice ; that the persons so requested to act as a jury, assembled before the said Justice, heard the testimony, and rendered a verdict of guilty against this deponent. This deponent specifies the manner in which the said jury were summoned as an error which he supposes renders the said proceedings and the said judgment void. William Yamtine. Sworn, &c., [as in § 86.] The certiora/ri should be prepared and presented to the officer who is to allow it, at the time of presenting the affidavit. § 170. Certiorari to remove a Conviction to the Supreme Court. [l. s.] The People of the State of Few-York to J. H. B., a Justice of the Peace of county, greeting : We, having been informed by the affidavit of William Yan- tine, that he was, lately, "In a Court of Special Sessions held by you, convicted of an assault and battery upon the person of Daniel Abbott ; and we being willing, for certain reasons, that the complaint, proceedings and judgment against the said William Yantine should be certified by you to our Supreme Court, do command you, that you send, under your hand and seal, the said complaint, proceedings, conviction and judg- ment, to our Justices of the said Supreme Court, and that you cause this writ, and the affidavit accompanying the same, together with your return, to be filed in the office of the clerk of the said Supreme Court, at , in said county, within twenty days after the service upon you of this writ. Witness the Honorable \nam6 of officer allowing writ.'] J. E. C, Attorney. E. B. 0., Clerk. If the officer to whom the application is made is satisfied that any error has been committed in the proceedings or judg- ment, he must endorse upon the writ his allowance, and cer- tify the affidavit upon which the same is allowed. But the certiora/ri cannot be granted, if the defendant, having been tried by a jury, assigns as error that their verdict was against evidence.' The statute expressly forbids its allowance upon that ground; and the Supreme Court will refuse to reverse a conviction for that reason.' The writ and the original affidavit are to be delivered to the magistrate before whom the conviction was had, within 1 2 E. 8. ns, § 44 8 Barbour, 884. a ii ; 5 WendeU, 581 ; 12 Id. 844; 19 id. 481; 6Y6 msw-TOEK jttstice. ten days after the allowance/ The magistrate to whom the writ is directed must make a special return to all the matters specified in the affidavit accompanying the writ, and must file the writ, affidavit and return in the clerk's office of his county, within twenty days after the service of the writ." The return may be compelled by mcmdwmus.' The return, it seems, should be under the seal of the inferior Court, or of the Justice, to whom the writ is directed. The Justice may make such return as he thinks best, and the Court will not stop the filing of it, on an affidavit of its falsity, ex- cept only where the public good requires it, or for some other special reason. Regularly, the only remedy against such a false return, is an action on the case by the party injured, or an information.'' If matters are inserted in the retufti, by way of explanation or otherwise, besides those which are expressly ordered to be certified in response to the affidavit, they will be no more re- garded by the Court above, than if they had been wholly omitted.' §171. Return endorsed on Certiora/ri. The execution of this writ appears by the schedule hereto annexed. J. H. B., Justice of the Peace. § 172. Schedule annexed to Return. County, ss : I, J. H. B., the Justice named in the annexed writ, do certify and return to the Supreme Court, that "William Yan- tine of said county was, on the day of , 1853, brought before me, by virtue of a warrant hereto annexed marked A, which was issued on a complaint made by Daniel Abbott, on oath, (which complaint was in writing, and is hereto annexed marked B^ and the said Vantine demanded to be tried by Court of Special Sessions. I, therefore, acting as such Court, read over the said complaint, as stated in the said warrant, to the said Vantine, to which he pleaded not guilty, and demanded a trial by jury. The plea was duly entered by me in the minutes of the Court, a venire was issued according to the statute in such case made and provi- » 2 E. B. 718, §45. < Dunlap's Justice, 6T. a ii S sl6. "2 Hawkins' P. 0. cbap. 2T, § 70 ; 2 Oaines, Md..|A7. 179. PEOCEEDINGS TO EETEESE JUDGMENTS. 677 ded, and a jury was summoned by Norman Parker, constable, and drawn and sworn. The said jury sat together, and heard the proofs and allegations, which were delivered in public, and in presence of the defendant. \If the affidmit calls for the testimony say here : and thereupon one V. L., a witness on the part of the complainant was sworn by me, and testified, &c.] And, after hearing the said proofs and allegations, the jury retired, and were kept together in a convenient place, under the charge of the said Parker, who was duly sworn for that purpose, until they had agreed upon their verdict. And the said jury, when they came into Court, said they had agreed upon their verdict, and then and there delivered the same pub- licly, by which they said they found the said William Vantine guilty of the offence wherewith he was charged. Whereupon the said Court did adjudge and order that the said William Yantine should pay a fine of {teti] dollars and be imprisoned in the county jail of said county for [twenty] days. With respect to the facts set forth in the annexed affidavit, not hereinbefore answered, I hereby certify and return as follows : [Here set out the other matters responsive to the affidavit.] All of which is returned, as by the said writ is commanded. Given iinder my hand and seal, this day of , 1853. J. H. B. [L.S.] Justice of the Peace. A certified copy of the certiora/ri, affidavit and return, must be served on the district attorney of the county in which the conviction was had, with at least four days' notice of the ar- gument thereof.' It is not necessary for the party convicted to appear per- sonally in the Supreme Court upon the argument on the cer- tiorari ; nor is any assignment of errors or joinder in error required, but the Supreme Court must proceed to hear the parties, and give judgment on the return to the writ." If the defendant, at the time of his conviction, notifies the magistrate that he intends to remove such conviction by writ of certiora/ri, and offers to become bound by a recognizance, with sufficient sureties, to appear at the next Court of Ses- sions to be held in the same county, and to abide the judg- ment or order of that Court in the premises, it is the duty of the magistrate to take the recognizance, and to suspend the 1 Laws of 1848, chap. 867, § 1. > 2 B. S. 718, § 49. 678 NEW-TOEK JtrSTIOE. execution of any sentence upon the conviction. But tlie sen- tence must be pronounced, and entered in the minutes of the proceedings.' A Court of Special Sessions before whom a conviction is had, may, however, proceed and cause its judg- ment to be executed, notwithstanding notice of an intention to remove the copviction, and the entering into a recognizance by the defendant, if a certiorari is not sued out." § 172. Recognizance to ie entered into hy a Defendant on the Removal of the case into the Swpreme Cov/rt hy Certiora/ri. County, ss : We, W. Y., C. D. and E. F., of _ in said county, acknowledge ourselves to be severally indebt- ed to the people of the State of New-Tork ; that is to say, the said W. V ., in the sum of dollars, the said C. D., in the sum of dollars, and the said E. F., in the sum of dollars, to be well and truly paid if default shall be made in the condition following : Whereas, at a Court of Special Sessions, held this day be- fore me, J. H. B., a Justice of the Peace of the said county, for the trial of William Yantine, for an assault and battery, upon the complaint of Daniel Abbott, the said William Yan- tine was convicted of said offence by said Court. And where- as the said William Yantine intends to re^nove the said conviction into the Supreme Court by certiorari : Now, therefore, the condition of this recognizance is such, that if the said William Yantine shall appear at the next Court of Sessions to be held in the said county, and abide the judgment or order of that Court in the premises, then this recognizance to be void ; otherwise, of force. Taken, subscribed and acknowledged ) W. Y. [l. s.J the day of , 1853, before \ C. D. [l. s.] me, ) E. F. [l. s.] J. H. B., Justice of the Peace. If the party convicted has been committed to prison, he is entitled to be discharged, upon entering into a recognizance with a condition as above specified, with such sureties as shall be approved by the officer allowing the certioraH. The cer- tificate of the officer, stating the facts, and ordering the jailer to discharge the prisoner, is a sufficient authority for his discharge." 1 2 E. S. 718, § 60. "2 K, S. 718, § 51. . ! 5 Wendell, 110. PKOCEEDINGS TO ItETEESE JUDGMENTS. 6T9 The magistrate or the officer by whom the recognizance is taken, must file the same with the clerk of the county.' The Court of Sessions in which the party recognized is bound to appear, may continue the recognizance, or may require a new recognizance, with further or other sureties, until the decision of the Supreme Court is had in the premises ; and, in default of compliance with any such requisition, may commit the party convicted to close custody." The Supreme Court, as we have seen,' will not reverse the judgment of the Special Sessions, on the ground that the ver- dict of the jury was against the weight of evidence. It will examine any other errors, however, which are alleged in the affidavit, or appear on the face of the return. If the convic- tion is reversed, and the defendant is in prison, the Supreme Court awards a supersedeas for his discharge. If the defend- ant has been let to bail, the judgment of the Supreme Court, whether the conviction be reversed or affirmed, must be remitted to the Court of Sessions of the proper county, to be by that Court carried into effect.* Upon receiving the judgment of the Supreme Court, the Court of Sessions, if the conviction is reversed, must discharge the defendant ; if the conviction is affirmed, and the defend- ant has already been sentenced by the Court of Special Ses- sions, the Court of Sessions must order that the sentence be executed. If the defendant has been let out of prison, as above provided, he must be remanded to such prison for the remainder of the term for which he "was sentenced. If the conviction is affirmed, and the defendant has not been sentenced, the Court of Sessions must proceed and sentence him upon the conviction, in the same manner and with like effect as if the conviction were had in that Court.' If it appears to the Supreme Court that the person prose- cuting the certiorari has unreasonably delayed to notice or bring on for argument the return to the writ, the Court may enter a rule to quash the certiorari / and the same being cer- tified to the Court of Sessions in which the defendant is >2E.S.n9,§52. <2E.S.T19,§54 Md. §58. Ma.§§65, 66. 'Ante, p. 6T5. 680 KEW-TOEK JUSTICE. bound to appear, tliat Court must proceed thereon in the same manner as if the judgment of the Court of Special Ses- sions had been affirmed by the Supreme Court.' CHAPTER XII. OF SUKETY OF THE PEACE. Under the title, " Of proceedings to prevent the commis- sion of crimes," the statute provides, that Justices of the Peace, and Police Justices, shall have power to cause to be kept all laws made for the preservation of the public peace, and, in the execution of that power, to require persons to give security to keep the peace, in the manner therein prescribed. The power thus conferred has evoked from Mr. Justice Blackstone a glowing encomium, and he esteems it an honor to the English laws that they furnish a preventive remedy similar to that just quoted from our own statute. In his language, " Preventive justice is, upon every principle of reason, of humanity, and of sound policy, preferable in all respects to jnmishing justice." " We will now proceed to consider how this " preventive justice" or security is to be obtained. Whenever a complaint is made in writing and upon oath, to a Justice of a Justice's Court, a Police Justice, or a Justice of the Peace, that any person has threatened to commit any offence against the person or property of another, it is their duty to examine the complainant, and any witnesses he may produce, on oath, and to reduce the examination to writing, and cause it to be subscribed by the parties examined.^ Under this section of the statute, it was decided, that where i2E.S.n9,§6T. »2E.S.T04,§2. ' i Blockstone'g Comm, 2B2. •SUEETT OF THE PEACE. 681 the examination of the complainant, reduced to writing, and subscribed and sworn to by him, contained matter sufficient to authorize the issuing of a warrant of arrest, the Justice who issued it has jui'isdiction, although no complaint in writing, separate and distinct from the examination, was made.' This decision, however, was reversed by the Court for the Correc- tion of Errors, to which Court the case was carried, and it was there held, that on an application to a magistrate for sure- ties of the peace, there must be a formal complaint, in writing and upon oath, besides the examination in writing required by the statute, to justify the magistrate in issuing a warrant against the party complained of; and that it was not enough that the complaint was embraced in the examination.' If, however, the warrant of arrest recites that there was a com- plaint in writing and upon oath, it is prima facie evidence that such proceedings were had, and will protect the magis- trate in an action against him, until it is affirmatively shown on the other side that there was not such a complaint.' All persons, being of sane memory, whether citizens or aliens, have a right to make a complaint, and to deman^d sureties of the peace. A wife may demand it against her hiisband when he threatens to beat her ; and a husband may have it against his wife. And, on the other hand, there can be no doubt that any person whatever, being of sane memory, may be required to give security to keep the peace, whether he be of full age or under age, whether he be a magistrate or a private person. But, infants under age, and married wo- men, must, as we have already seen,' find security by their friends ; for they are incapable of binding themselves.' The first step, then, is to make a complaint in writing, upon oath, before the Justice, stating the threatened offence against the person or property, which complaint may be in these words : § 173. Complaint to obtain Bwrety of the Peace. County, ss: A. B., of said county, being duly sworn, says, that on the 1 IT WendeU, 181. * Ante, p. 639. "23 id. 638. 5 4 Blackstotte'a Comm. 250, 251; Davia' ' id. JUBtlce, 400. 682 NEW-TOEK JUSTICE. day of ) 18 , one D. A., of tlie town of , in said county, did threaten to beat and wound [or, kill, as the case moAj be,] him, the said A. B. ; and that he hath just cause to fear that the said D. A. will beat and wound [or, kill, as the case may he] him, the said A. B. ; * wherefore this deponent prays that the said offender may be bound by recognizance, to answer the said offence at the next Court of Sessions to be held in the said county, and in the meanwhile to keep the peace. A. B. Sworn, &c., [as m § 86.] If it appears from the examination, that there is just reason to fear the commission by the person complained of, of any such offence as that sworn to by the complainant, it is the duty of the Justice to issue a warrant under his hand, with or without seal, reciting the complaint, and commanding the officer to whom it is directed, forthwith to apprehend the person so complained of, and bring him before the Justice.' § 174. Peace Warrant. Town of , } g. County, j To any Constable of the said County, greeting : Whereas, A. B. hath this day made complaint, upon oath, before me, Gr. H., one of the Justices of the Peace of the said town, that on the day of j 18 , one D. A., of, (fee, [as in 173 to the,* aiidthen add:] and the said A. B. hath thereupon prayed surety of the peace : Therefore, the people of the State of New- York command you forthwith -to apprehend the said D. A., and bring him before me, at my office in said town of , to be dealt with according to law. Witness my hand, this day of , 18 . G. H., Justice of the Peace. It is not necessary, that the warrant should contain a for- mal adjudication that there is reason to fear the commission of the offence charged.' When the defendant is brought before the Justice, the c omplaint and examination should be read over to him, and he should then be asked what he has to say in his defence, or what he can allege against the finding of sureties." After he ' 2 K. 8. T04, § 3. ^ Barbour's Criminal Law, 610. » 17 •Wendell, 181. StnEETT OF THE PEACE. 683 has been so interrogated, the Justice may require him, if he think the case demand it, to enter into a recognizance in such sum, not exceeding one thousand dollars, as he may deem proper, with one or more sufficient sureties, to appear at the next Court of Sessions to be held in the coiinty where the complaint is made, and not to depart the same without leave, and, in the meanwhile, to keep the peace towards the people of this State, and particularly towards the person requiring the security.' § 175. Recognizance to Keep the Peace. State of E'ew-Tork. | County, j^®- "We, C. D., E. F., and D. A., of , in said county, do hereby acknowledge ourselves to be severally indebted to the people of the State of ISTew-Tork ; that is to say, the said D. A. in the sum of dollars, the said C. D. in the sum of dollars, and the said E. F. in the sum of dollars, to be well and truly paid if default shall be made in the condition following : The condition of this recognizance is such, that if the said D. A. shall personally appear at the next Court of Sessions to be held in and for the said county, and shall not depart the Court without leave, and, in the meanwhile, shall keep the peace towards the people of this State, and particularly tow- ards A. B., then this recognizance to be void, otherwise of force. C. D. [l. s.] Taken, subscribed, and acknowledged, ) E. F. [l. s.] this day of , 1853, before \ D. A. [l. s.1 me, G. k, j ^ Justice of the Peace. If the recognizance is given, the party complained of must be discharged. If he refuses to iind the secvirity, it is the duty of the Justice to commit him to prison until he does find it, and to specify in the warrant the cause of commitment, and the sum in which security is required." It is not neces- sary, however, to state in the warrant of commitment the crime for the prevention of which the application for security of the peace was made ; it is enough to state that the party is committed for refusing to give sureties." 12E. 8. T04,§4 =23 Wendell, 63a 2 id. § 5. 684 ISTEW-TOEK JUSTICE. § 176. Commitment for not Finding Sv/reUes. County, ss: To any Constable of the said County, greeting : Whereas, A. B. this day made complaint to me in writing, on oath, that D. A., on the day of instant, [or, last past,'] threatened to, &c., [as in the comjploMit;'] And whereas, it appeared to me, upon the examination of the said complainant, and of E. F., and 0. P., witnesses, duly made on oath, reduced to writing, and subscribed by them, that there was just reason to fear the commission of the said of- fence by the said D. A.; and he, having been brought before me, on my warrant, was required to enter into a recognizance in the sum of dollars, with sufficient surety, to appear at the next Court of Sessions to be held in the said county, and not to depart the same without leave, and in the mean- time to keep the peace towards the people of this State, and Particularly towards the said complainant ; and the said D. A. aving refused, [or, neglected,] to find such security, you are therefore commanded, in the name of the people of the State of New-York, forthwith to convey him to the common jail of the said county, and to deliver him to the keeper thereof, who is hereby required to receive the said D. A. into his custody, and him safely keep in the said jail, until he shall find such security, or be discharged by due course of law. Witness &c., [as in § 174.] Any person committed for not finding sureties as thus pro- vided, may be discharged by any two Justices of the Peace of the county, upon giving such security as was originally re- quired of him.' § 177. Warrant to Discharge Prisoner on Finding Sureties. County, ss: G. H. and S. T. Esqrs., two of the Justices of the Peace of the said county, to the keeper of the common jail of the said county, greeting : These are to command you forthwith to discharge out of your custody D. A., if detained by you in said common jail, for no other cause than what is specified in his warrant of com- mitment, made by the said G.H., dated the day of , 18 , for not finding sureties of the peace ; he hav- ing, since his said commitment, found such sureties before us. Given under our hands and seals, this day of , 1853. G. H., Justice, [l. s.] S. T., Justice, [l. s.] 1 2 E. S. TO4, % 6. FEES EST OEBUNAl OASES. 685 The recognizance taken by the Justice must be transmitted to the next Court of Sessions of the county.' Every person who, in the presence of a Justice of the Peace or Police Justice, makes any affray, or threatens to kill or beat another, or to commit any offence against his person or property ; and every person who, in the presence of any such magistrate, contends with hot and angry words, may be ordered by such magistrate, without any other proof, to give security as above specified ; and, in case of his refusal to do so, may be committed in the manner above described.' The statute further provides, that every court of criminal jurisdiction, before which any person shall be convicted of any criminal offence not punishable with death or imprison- ment in the State Prison, shall have power, in addition to such sentence as may be prescribed or authorized by law, to rec[uire such person to give security to keep the peace, or to be of good behavior, or both, for any term not exceeding two years, or to stand committed until such security be given. But this provision does not extend to convictions for writing or publishing any libel ; nor can any such security be requir- ed by any Court, upon any complaint, prosecution or convic- tion, for any such writing or publishing.' No security to keep the peace, or to be of good behavior, can be required, nor can any person be committed to prison, for not giving the same, in any cases except such as are au- thorized or prescribed by statute." CHAPTER XIII. OF FEES IN CEIMINAL CASES. All fees and accounts of magistrates and other officers for criminal proceedings, including cases of vagrancy, are to be 1 2 E. S. 704, § T. » id. T3T, § 1. ' Id. T05, § 8. * id. T05, § 14. NEW-TOEK JUSTIOE. paid by the several towns or cities wherein the offence was committed. All accounts rendered for such proceedings must state where the offence was committed, and the board of su- pervisors must assess such fees and accounts upon the several towns or cities designated by the accounts. But, when any person is bound over to the Oyer and Terminer, or Court of Sessions, or committed to jail to await a trial in either of said Courts, the costs of the proceedings had before the single magistrate are chargeable upon the towns or cities aforesaid, and the costs of the proceedings had after the person has been so bound over or committed, are chargeable to the county.' 'So account can be audited by any board of town auditors, or supervisors, or superintendents of the poor, for any servi- ces or disbursements, unless the account is made out in items, and accompanied with an affidavit, (which is to be attached and tiled with such account,) made by the person presenting or claiming the same, that the items of such account are cor- rect, and that the disbursements and services charged therein have been in fact made or rendered, or are necessary to be made or rendered at that session of the board, and stating that no part thereof has been satisfied." § 178. Affidavit to accoTnpcmy Account. County, ss : J. H. B., of , in said county, being duly sworn, says, that he is a Justice of the Peace in and for said county, that the items of the account hereto annexed are correct, and that the disbursements and services charged in the said ac- count have in fact been made and rendered by him, or are necessary to be made ilnd rendered by him at the present session of the Board of of said county, and that no part of the said account has been paid or satisfied. J. H. B. Sworn, &c., [as in § 86.] For the following services in criminal cases, performed in in the cases authorized by law, by the officers hereinafter named, the following fees are allowed : 1 Laws of 184T, clap. 180, § 26, as amended ' Laws of 1845, ciap. 180, § 24, as amended by Laws of 1847, chap. 465. by Laws of 184T, chap. 490. FEES OF JUSTICES OF TEE PEACE. 687 Fees of Justices of the Peace^ For administering every oath, six cents ; A warrant, nineteen cents ; but no Justice is obliged to issue any warrant on any complaint for an assault and battery, unless tbe person making such complaint and requiring such warrant, pays the fee therefor ; A bond or recognizance, twenty-five cents ; A subpoena for each witness, six cents ; but fees cannot be charged for more than six subpoenas in any one criminal case, and no fee can be charged for issuing or serving a subpcena on behalf of a defendant." A commitment for want of bail, nineteen cents : But no board of supervisors can allow any account in favor of any Justice of the Peace, for any warrant on any com- plaint for an assault and battery.' Fees of a Justice holding a Court of Special Sessions.' For a venire to summon a jury, twenty-five cents ; For swearing a jury, twesnty-five cents ; For swearing each witness, six cents ; A subpoena for each witness, six cents ; but fees cannot be charged for more than six subpoenas in any one criiriinal case, and no fee can be charged for issuing or serving a subpcena on behalf of a defendant.' For trial fee or attendance, one dollar ; For a warrant of commitment on conviction, twenty-five cents; For drawing up a record of conviction, and causing the same to be filed in the clerk's office, seventy-five cents ; But all such charges, in any one case, cannot exceed five dollars ; For taking security from any one person to prosecute a certiorari, upon any conviction made by such Court, twenty- five cents ; For a return to any such writ of certiorari, two dollars, to be paid by the county." 12E.S.T49,§1. 4id.§2. 2 Laws of 1845, chap. ISO, § 18. « Laws of 1845, chap. 180, § 18. 32B.S.749,§1. • 2 E. S. 749, § 2. 688 NEW-TOEK JUSTICB. The Eevised Statutes provide, that the fees just specified shall be divided equally between the persons composing a Court of Special Sessions.' This provision is not directly changed by the §,ct to reduce the number of town oiHcers, before referred to," whereby those Courts are required to be held by a single magistrate. It is presumed, therefore, that a single magistrate holding a Court of Special Sessions is en- titled to the same compensation that the three magistrates by whom the Court was formerly held, were entitled to. The fees of Justices of the Peace given by 2 E. S. 637, § 29, do not apply to criminal cases." Fees of Constables* Serving a warrant or other process for the arrest of any person, issued by any magistrate or Court, fifty cents ; and the same fees for traveling to make such service as are allowed for serving a warrant in civil cases.' Taking a defendant in custody on a mittimus, twelve and a half cents ; Conveying a person to the magistrate or Court before whom he is to be brought, or to jail, twelve and a half cents, if within one mile, and for every mile more, going only, six cents ; Serving a subpoena, twelve and a half cents, for each wit- ness, and the like mileage as above provided, but mileage can be allowed only the distance actually and necessarily trav- eled ;° and no fee is allowed for serving any subpoena on be- half of a defendant.' Whenever a subpoena for witnesses in criminal cases or complaints, containing one or more names, is served by a constable or other officer, such officer can be allowed for mileage, only for the distance, going and returning, actually traveled to make such service upon all the witnesses in such cases of complaint, and not separate mileage for each witness, unless the board of supervisors auditing accounts for such services deem it equitable to make a further allowance." 1 2 E. B. 749, § 2. » Ante, p. 474. « Ante, p. 668. « 2 E. 8. 760, § 4. » 2 E. 8. 660, § 1. ' Laws of 1846, chap. ISO, § 18. « Id. 760, § 4' ° ^"^^ "f l^^i '^•"'P- 506. FEES OF CONSTABLES. 689 The board of supervisors may allow such further compensa- tion for the service of process, and the expenses and trouble attending the same, as they deem reasonable. Tor other services in criminal cases, for which no compen- sation is specially provided by law, such sum as the board of supervisors of the county shall allow.' The provisions of law prohibiting the taking of any fees for services in civil cases, other than such as are allowed by statute, apply to the taking of fees for services in criminal cases beyond the amount allowed by law for such services." The taking of fees not allowed by law is a misdemeanor.' 1 2 E. 8. T50, § 4. ! id. 651, § T. ' id. 753, § IT. 45 PART III. OF THE SPECIAL POWERS AND DUTIES OF JUSTICES OF THE PEACE. PART III. OF THE SPECIAL POWERS AND DUTIES OF JUSTICES OF THE PEACE. Having considered, as fully and particularly as the limits of this work would permit, the civil and criminal jurisdiction of Justices of the Peace, we come now to the consideration of the third and last division of our work, which embraces the powers and duties conferred upon Justices by special statutory provisions. It is proper to say, with reference to all these powers and du- ties, that the statute conferring or requiring them must be strictly pursued. Indeed, the only safety that a Justice can have in exercising these powers, especially in summarily con- victing offenders, which, as we shall see, he may do in certain cases, is in following the precise commands of the statiite. Thus, if the statute requires two Justices of the Peace to exe- cute a judicial power, they must meet and execute it together;' and if authority is given to the next Justice, he alone can ex- ercise it.^ Justices, before rendering any service which they are re- quired to perform, may demand the fee allowed by law for such service.' Every sheriff, constable, marshal, or other officer, to whom is directed and delivered any attachment, summons, precept to summon a jury, warrant to apprehend a witness or any oth- er person, or any other process authorized by law to be issued by a Justice of the Peace, in any special proceeding or mat- ter before him, except civil actions, must execute such pro- cess, as therein commanded ; and, for any wilful neglect so to 1 S Term Eep. 88. " 2 E. S. 650, § 6. " 1 Saunders, 26S. 694 NEW-TOEK JUSTICE. do, may be fined by the Justice issuing the same, in a sum not exceeding twenty-five dollars." When any person has been personally summoned to attend as a juror, to inquire into any matter or thing, or to hear and try any controversy, in any special proceeding or matter above specified, and -wilfully neglects to attend in obedience to such summons, he may be fined by the Justice issuing the same, in a sum not exceeding twenty-five dollars. But this section does not extend to any case where special provision is made by law, for punishing the default of any juror.' When any sheriff, constable or other ofiicer, who has sum- moned any jury, in the cases mentioned in the two last sec- tions, is required by the Justice issuing the summons, to at- tend such jury and take charge of them, he is bound to do so ; and, for any wilful neglect to obey such order, or for any misconduct while attending such jury, by which the rights or remedies of any party to such proceeding may be impaired or prejudiced, such sheriff, constable, or other officer is liable to be fined by the Justice before whom such jury has appear- ed, in a sum not exceeding twenty-five dollars.' Upon such fine being imposed in any of the cases above specified, notice thereof must be given to the person fined, to the end that he may render. any excuse to the Justice, or show cause why such fine should be remitted.* K no such excuse be rendered, or cause shown, within thirty days after the service of such no- tice, and such fine be not remitted by the Justice, the Justice must make a special return of the delinquency or misconduct for which such fine was imposed, with the amount thereof, to the next County Court of the county in which such delin- quent resides." In case of the death, sickness, resignation, removal from of- fice, absence from the county of his residence, or other disa- bility, of any officer before whom any special proceedings authorized by any statute may have been commenced, and where no express provision is made by law for the continu- ance of such proceedings, the same may be continued by the > 2 B. 8. 661, 1 8. * id. § 0. Md. S 4 Md. § T. = id. § 6. SPECIAL POWEES AKD DTTTIES OP JUSTICES OF THE PEACE. 695 successor in office of such officer, or by any other officer resi- ding in the same county who might have originally instituted such proceedings ; or, if there be no such officer in the same county, then by the nearest public officer in any other county who might have originally had jurisdiction of the subject matter of such proceedings, if such matter had occurred or existed in his own county.' At the same time and place speci- fied in any notice or order which may have been given for parties to appear, or for any other proceeding to be had, the officer substituted according to the foregoing or any other pro- vision of law, to continue proceedings commenced before another, may make any order, and do and perform any act, in relation to such proceedings, as if the same had been ori- ginally commenced before him.' But, before any proceedings can be had before any such substituted officer, at any other time or place than such as was specified in the notice or order requiring parties to appear, notice of such substitution must be given to the parties who may be afi'ected thereby, either by personal service, or by publication, in such manner and for such time as the substituted officer shall direct. Such sub- stituted officer will thereupon be authorized to make every order, and to do and perform every act, in relation to such proceedings, as if the same had been originally commenced before him.' "With these general remarks, we now proceed to consider in detail the special powers and duties conferred upon Justices of the Peace. I 2 E. 8. 284, § 51. » id. § 58, ' id. 285, § 52. 696 NEW-rOEK JUSTICE. CHAPTER I. OF THE ACKNOWLEDGMENT AND PROOF OF CONVEY- ANCES AND OTHER WRITTEN INSTRUMENTS. To entitle any conveyance of real estate to be recorded, it must be acknowledged by the parties executing it, or be proved by a subscribing witness thereto, before a proper officer.' By the act abolishing the office of commissioner of deeds in the several towns of this State, its powers and duties were confer- red upon Justices of the Peace in towns,' who have power, therefore, at any place within the counties in which they reside, 1. To take the proof and acknowledgment of convey- ances of real estate, and of the discharge of mortgages ; 2. To take the acknowledgment of satisfaction of judgments in the County Court of the county for which they are elected, or in the Supreme Court.' Although, prior to the amend- ments made to the Code in 1849, Justices of the Peace in towns had power to take the acknowledgment of bail in any action in the Supreme Court, and in the County Court of the county for which they were elected,* yet it is believed that that pow- er is taken away from them by the 193d section of the Code, as amended in 1849. A Justice cannot take an acknowledgment of a conveyance unless he knows, or has satisfactory evidence, that the person making it is the individual described in, and who executed the conveyance.' Where the execution of a conveyance is proved by a sub- scribing witness thereto, he must state his own place of resi- dence, and that he knew the person described in and who execu- ted the conveyance ; but such proof cannot be taken, unless the Justice is personally acquainted with the witness, or has sat- 1 1 U. 8. T56, § 4. * id. ' Laws of 1840, chap. 283. » 1 id. 7D3, § 9. ' 2 K. S. 282, § 41. ACKNOWLEDGMENT AND PEOOF OF CONVEYANCES. 697 isfactory evidence that lie is the same person who was the subscribing witness.' The identity of a grantor, on an acknowledgment by him, need not be proved by a subscribing witness, but may be proved by any one, so that the evidence be satisfactory to the officer." On taking proof of execution, the Justice should be careful to ascertain, either that the subscribing witness saw the execution of the deed, or that the execution was acknowl- edged to him by the grantor.' The acknowledgment of a married woman residing within this State, to a conveyance purporting to be executed by her, cannot be taken, unless, in addition to the knowledge or satis- factory evidence of her identity, which the Justice must have, she acknowledges, on a private examination, apart from her husband, that she executed the conveyance freely, and with- out any fear or compulsion of her husband.* But, when any married woman, not residing in this State, joins with her husband in any conveyance of any real estate situated within this State, the acknowledgment or proof of the execution of such conveyance by her, may be the same as if she were sole.' Where a married woman executes a power by grant, the grant is not a valid execution of the power, unless it be ac- knowledged by her on a private examination, in the manner above prescribed in regard to conveyances by married wo- men." Whenever erasures or interlineations occur in a conveyance, they should be noted previous to the execution, or be men- tioned in the certificate of the officer taking the proof or acknowledgment.' The Justice taking the acknowledgment or proof of any conveyance, must endorse a certificate of the proof or ac- knowledgment, signed by himself, on the conveyance. In such certificate, he must set forth the matters before specified as required to be done, known or proved on such acknowl- 1 1 E. 8. T58, § 12 ; 2 Wendell, 655 ; T Id. 864 ; n E. 8. 768, § 10. IHUl, 121. Md. §11. s 18 Wendell, 536. » id. 786, § 117. » 2 id. 555 ; 17 id. 186. ' 8 Cowen, 71 ; 7 WendeU, 864. 698 HE-W-TOEK JUSTICE. edgment or proof, together with the names of the witnesses examined before him, their places of residence, and the sub- stance of the evidence given by them.' The Justice has power to administer all oaths that may be necessary in the course of taking any acknowledgment or proof." The certificate need not be in the precise words of the statute, but it must show a substantial compliance therewith ; ' nor is it necessary that the Justice should certify that the witness who identifies a subscribing witness is known to him.* A certificate that a married woman acknowledged that she executed a conveyance without any fear, threat or corrvpulsion of herhMsbamd, is sufiScient. The word freely, in the statute, does not import that the wife should execute the instrument without a motive, as a mere act of generosity, and without any hope of present or future benefit, but that she should execute it without constraint, or coercion, or fear of injury from her husband.' It is not necessary that the certificate should be endorsed on the deed ; it may be on any part of it. And, if it state that the Justice knew the grantor to be the person who exe- cuted the deed, it will be sufficient, although it do not state that he knew iim to be the person described in the deed." The Justice should state, after his signature, his official title, and the name of the county in which he is a Justice. Any Justice who is guilty of any malfeasance, or fraudu- lent practice, in the execution of any duty prescribed by law in relation to the taking, or certifying the proof or acknowl- edgment, of any conveyance, mortgage, or instrument in writing, is guilty of a misdemeanor, and, upon conviction, may be punished by fine or imprisonment, and is also liable in damages to the party injured.' The term conveyance, as used in this chapter, and in the statutory provisions in regard to taking the proof and ac- knowledgment of conveyances, embraces every instrument > 1 E. 8. 759, § 15. * 1 id. 406 ; 11 Johnson, 4Si. . ' 2 id 294, § 49 ; Laws of 1940, chap. 288. » 2 Barbour's CU. E. ISf^-X^^^^^ Jp ' 2 Barbour's Oh. E. 282 ; 18 WendoU, 686 ; » 24 'Wendell, 8T. 14 id. 662. 'IE. 8.762, §SS. ACKNOWLEDGMENT AND PEOOF OF CONTETANCES. 699 in writing by which any estate or interest in real estate is created, aliened, mortgaged or assigned, or by which the title to any real estate may be affected in law or equity, except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale or purchase of lands.' A Justice can also take the acknowledgment or proof of the execution of any written instrument, except a promissory note, a bill of exchange, or the last will of a deceased person, in the same manner that he can take the proof or acknowl- edgment of a conveyance of real estate, and, when he does so, must endorse on the instrument a like certificate.' The docket of a judgment rendered in any Court of Record may be cancelled and discharged by the clerk thereof, upon filing with him an acknowledgment of satisfaction, signed by the party in whose favor such judgment was obtained, or by his executors or administrators, duly authenticated.' Such acknowledgment may be made before Justices of the Peace in towns.'' The ofiicer must certify that the party making the same was known, or made known to such officer, by compe- tent proof.' Such acknowledgment may also be made by the attorney on record of the party in whose favor the judgment was rendered, within two years after the filing of the record of the judgment.' § 179. Certificate of Acknowledgment J/y a Pa/rty known to the Officer. County, ss : ' On the first day of June, in the year of our Lord one thousand eight hundred and fifty-three, before me personally came A. B., to me known to be the individual described in, and who executed the within [or, above, or, annexed] convey- ance {or, bond ; or, letter of attorney ; or, instrument in writing,] and acknowledged that he execiited the same. J. H. B., Justice of the Peace, in and for said county. > 1 E. S, 763, § 38. * id. S 28 J Laws of 1840, chap. 288. » Laws of 1833, efcap. 271, § 9. « 2 E. S. 862, § 28 ; Laws of 1834, chap. 262. 3 2E.S. 362, §22. •2E.8. 862, §24. ^ If a conveyance or instrament is proved or acknowledged in this State, bnt is to be nsed or recorded in another State, the same of the State should he inserted tn the heading of the certiS- cate, as well as that of the coimtjr. 700 NEW-TOBK JUSTICE. § 180. By a Pa/rty, where his Identity is proved to the Officer. County, ss : On the first day of June, &c., before me personally came A. B., proved to me satisfactorily to be the same person described in, and who executed the within conveyance, by the oath of C. D., subscribing witness thereto^ who, being by me duly sworn, did depose and say, that he resided in the of , in said county, that he was acquainted with the said A. B., and that he knew him to be the individual described in and who executed the within conveyance ; and, thereupon, the said A. B. acknowledged that he executed the same. J. H. B., Justice, fee." § 181. By Husbcmd cmd Wife, both Jmown to the Officer. County, ss : On the first day of June, &c., before me personally came A. B., and Mary his wife, to me known to be the individuals described in, and who executed the within conveyance, and severally acknowledged that they executed the same ; and the said Mary, on a private examination by me made, apart from her husband, acknowledged that she executed the same freely, and without any fear or compulsion of her husband. J. H. B., Justice, &c. § 182. By Husband and Wife, both ^proved to the Officer. County, ss : On this first day of June, &c., before me personally came A. B., and Mary his wife, both proved to me satisfactorily to be the individuals described in, and who executed the within conveyance, by the oath of C. D., subscribing witness thereto, who, being by me duly sworn, did depose and say, that he resided in the of , in said county ; that he was acquainted with the said A. B., and Mary his wife ; that he knew them to be the individuals described in, and who execiited the within conveyance ; and, thereupon, they sev- erally acknowledged that they executed the same ; and the said Mary, &c., \_as m § 181, to the end.] J. H. B., Justice, &c. I If the person by whose oatb the identity is established, is not a subscribing witness, the words in italic, in the above and subsequent forms, must be omitted. 'The ofiicial title of the Justice should always be written in full, as in Form § 179, and not be abbreviated. ACKNOWLEDGIVIENT JlND PROOF OF CONVETANOES. 701 § 183. By Husband and Wife — Husband hnown, and Wife proved to the Officer. Coniity, ss : On the first day of June, &c., before me personally came A. B., and Mary his wife ; the said A. B. being known to me to be one of the individuals described in, and who executed the within conveyance ; and the said Mary being proved to me satisfactorily to be one of the individuals described in, and who executed the within conveyance, by the oath of 0. D., subscribing witness thereto, who, being by me duly sworn, did depose and say, that he resided in the town of , in said county, that he was acquainted with the said Mary, the wife of the said A. B., and knew her to be one of the individ- uals described in, and who executed the said conveyance ; and, thereupon, the said A. B. and the said Mary his wife, sever- ally acknowledged that they executed the same ; and the said Mary, &c., \_as in § 181, to the end.] J. H. B., Justice, &c. § 184. _By txoo Husbamds and their Wives, all known to tlie Officer. County, ss : On the first day of June, &c., before me personally came A. B., and Mary his wife, and 0. D., and Lucy his wife, known to me to be the individuals described in, and who executed the within conveyance, and severally acknowledged that they executed the same ; and the said Mary and Lucy, severally, each for herself, on a private examination by me made, apart from her husband, acknowledged that she executed the same freely, and without any fear or compulsion of her husband. J. H. B., Justice, &c. § 186. By Wife, in sepwrate Oertificate. County, ss: On the first day of June, &c., before me personally came M. B., wife of A. B., described in the within conveyance, the said M. B. being known to me to be one of the individuals de- scribed in, and who executed the said conveyance ; and she, on a private examination by me made, apart from her hus- band, acknowledged that she executed the same freely, and without any fear or compulsion of her husband. J. H. B., Justice, &c. § 186. By two or more Pa/rties. County, ss : On the first day of June, &c., before me personally came 702 KEW-TOEK JUSTICE. A. B. and 0. D., to me known to be the individuals described in, and who executed the within conveyance, and they sever- ally, each for himself, acknowledged that they executed the same. J. H. B., Justice, &c. § 187. By one of several Pa/rties. County, S8 : On the first day of June, &c., before me personally came A. B., to me known to be one of the individuals described in, and who executed the within conveyance, and acknowledged that he executed the same. J. H. B., Justice, &c. § 188. By an Attorney. County, 83 : On the first day of June, &c., before me personally came A. B., known to me to be the individual described in, and who executed the within conveyance, and acknowledged that he executed the same as the act and deed of 0. D., therein de- scribed, by virtue of a power of attorney, duly executed by the said 0. D., bearing date the day of , in the year , and recorded in the office of the clerk of on the county of , in book of , page , the day of , in the year J. H. B., Justice, &c, § 189. By am, Executor, or Trustee. County, S3 ; On this first day of June, &c., before me personally came A, B., known to me to be the Executor of the last will and testament \or, Trustee of the estate] of C. D., mentioned and described in the within conveyance, and also known to me to be the same individual described in and who executed the said conveyance, and acknowledged that he executed the same, as such Executor [or, Trustee] as^foresaid. J. H. B., Justice, &c. § 190. CertiflGate of Proof hy a Subscribing Witness hnown to the Officer. County, S3 : On this first day of June, &c., before me personally came C. D., subscribing witness to the within conveyance, to me known, and he, being by me duly sworn, did depose and say, that he resided in the of in said county ; that he knew A. B., the individual described in, and who executed the said conveyance ; that he was present and saw the said ACKNOWLEDGMENT AND PEOOF OF CONTBTANCES. 703 A. B. execute the same ; that the said A. B. acknowl- edged to him the execution thereof ; and that thereupon he, the said G. D., became the subscribing witness thereto. J. H. B., Justice, &c. § 191. By a Subscriling Witness where his Identity is proved to the Officer-. County, ss : On this first day of June, &c., before me personally came M. ISr. and C. D., and the said M. N., to me known, having been by me duly sworn, did depose and say, that he resided in the of in said county ; that he was acquainted with the said 0. D., the subscribing witness to the within con- veyance, and that he knew him to be the same person, which is to me satisfactory evidence thereof; and the said C. D., being by me duly sworn, &c., \as im, § 190, to the end.'] J. H. B., Justice, &c. § 192. JBy Subscribing Witness — Grantors residing in another State. County, ss : On this first day of June, &c., before me personally came C. D., to me known, and he, being by me duly sworn, did de- pose and say, that he resided in the of in said county ; that he knew A. B., and E. his wife, the individuals described in, and who executed the within conveyance ; that they sev- erally resided in the town of in the State of ; that he was present and saw them execute the said conveyance ; that they severally acknowledged to him the execution thereof ; and that he thereupon became the subscribing witness thereto. J. H. B., Justice, &c. §193. The same, by Subscribing Witness proved to the Officer. County, ss : On this first day of June, &c., before me personally came M. N. and C. D., and the said M. W., to me known, having been by me duly sworn, did depose and say, that he resided in the of in said county ; that he was acquainted with the said C. D., the subscribing witness to the within conveyance, and that he knew him to be the same person, which is to me satisfactory evidence thereof ; and the said C. D., being by me duly sworn, on his oath, said, that he resided in the of in the State of , that he knew A. B., and E. his wife, &c., \_as in § 192, to the end.] J. H. B., Justice, &c. 704 NEW-TOEK JUSTICE. § 194. By Subscribing Witness as to the Ruslcmd, and Ac- hnowledgment by the Wife, both being known to the Officer. County, BS : On this first day of June, &c., before me personally came C. D., to me known, and he, being by me duly sworn, did depose and say, that he resided in the of in said county ; that he knew A. B., one of the individuals described in, and who executed the within conveyance ; that he was present and saw the said A. B. execute the same ; that the said A. B. acknowledged to him the execution thereof ; and that thereupon he, the said 0. D., became the subscribing witness thereto. At the same time, also appeared before me E. B., the wife of the said A. B., to me hiown to be one of the indi- viduals described in, and who executed the said conveyance, and she, on a private examination by me made, apart from her husband, acknowledged that she executed the within convey- ance freely, and without any fear or compulsion of her said husband. J. H. B., Justice, &c. § 196. JBy Subscribing Witness as to the JSusband, and Ac- hnowledgment by the Wife, both jgroved to the Officer. County, ss : On this first day of June, &c., before me personally came C. D., and he, being by me duly sworn, &c., \as in § 194, to the end, omitting the words in italic, am,d then add:'] And at the same time also appeared before me M. 'S., to me per- sonally known, and he, being by me duly sworn, did depose and say, that he resided in the of in the county of ; that he knew the said 0. D. to be the same person who was a subscribing witness to the within conveyance, which is to me satisfactory evidence thereof ; and that he also knew the said E. B., who made the aforesaid acknowledgment, to be one of the individuals described in, and who executed the said conveyance, which is to me satisfactory evidence thereof. J. H. B., Justice, &c. § 196. By Subscribing Witness to Deed executed by an Attorney. County, ss : On this first day of June, &c., before me personally came C. D., to me known, and he, being by me duly sworn, did depose and say, that he resided in the of in said county ; that he knew A; B., the individual described in, and who executed the within conveyance as the Attorney in fact of M. IT. therein named ; that he was present and saw the said A. B. execute the same as such Attorney ; that the said ACKNOWLEDGMENT AND PROOF OE CONVEYANCES. 705 A. B. acknowledged to him that he executed the same as such Attorney; and that thereupon he, the said C. D., became the subscribing witness thereto. J. PI. B., Justice, &c. § 197. Proof of Deed, iy a Religious Co7'poration. County, ss : On this first day of June, &c., before me personally came A. B., subscribing witness to the within conveyance, to me known, and he, being by me duly sworn, did depose and say, that he resided in the of in said county, and was the Clerk of the Corporation of the Hector, Churchwardens, and Vestrymen of the Protestant Episcopal Church of St. Peter's \or, the Corporation of the Trustees of the first Meth- odist Episcopal Society,] in the of aforesaid ; that the seal affixed to the within conveyance was the corporate seal of the said corporation ; that it was affixed by order of the said corporation ; and that he, the said A. B., becaine the subscribing witness to the execution of the said conveyance. J. H. B., Justice, &c. § 198. Satisfaction of Mortgage and Acknowledgment, hy Individual known to the Officer. I, A. B., of the town of in the county of and State of , do hereby certify, that a certain mortgage, bearing date the day of , in the year one thou- sand eight hundred and , made and executed by C. D., of the first part, to me the said A. B., of the second part, and recorded in the office of the Clerk of the county of , in book of mortgages, at page , on the first day of June, 1852, \_if the mortgage has heen assigned, insert the name of the assignee, instead of A. B.,at the commencement of the cer- tificate, omit the words, " me, the said," in italic, and insert here: and which said mortgage was duly assigned to me by the said A. B», the mortgagee above named, by assignment dated the day of , in the year , and record- ed in the office of the Clerk of the county of aforesaid, in book of mortgages, at page , on the tenth day of June, A. D., 1852,] is fully paid, satisfied and discharged. Dated the first day of June, 1853. A. B. In presence of G. H. County, ss : On this first day of June, in the year one thousand eight hundred and fifty-three, before me came A. B., known to me to be the individual described in, and who executed, the above certificate, and acknowledged that he executed the same. J. H. B., Justice, &c. 46 706 NEW-TOEK JUSTICE. § 199. Certificate of Satisfaci/ion to he written on a Mortgage. I, A. B., the mortgagee within named, {or, the assignee of the within named mortgagee,] do hereby certify that the within named mortgage is fully paid, satisfied and dis- charged. Dated the first day of June, A. C, 1853. •^ A. B. {Add achnowledgment, as in § 198.] § 200. Satisfaction ly an Executor, Admivnist/rator or Trustee. I, A. B., executor of the last will and testament of C. D., deceased, [or, administrator of the goods, chattels and credits, which were of C. D., deceased ; or, trustee of the estate of C. D., &c.,] do hereby certify that a mortgage made and execu- ted by E. F. to the said C. D., in his lifetime, \or, to me as such as aforesaid,] bearing date, &c. [Follow the pre- ceding forms, as the case may require.'] A. B. In presence of G. H. § 201. Satisfaction of Judgment in a Justices Court, where a Transcrijpt is filed in the County Cleric's office. County Clerk's Office : A. B. ^ Judgment rendered in favor of the plaintiff, against y against the defendant, before J. H. B., Esq., a Jus- C. D. ) tice of the Peace in and for said county, for dollars and cents, damages and costs. Transcript filed and judgment docketed, the day of , in the year 1852. Satisfaction of the above mentioned judgment is hereby ac- knowledged. A. B. Subscribed and acknowledged before me, the day of , in the year 1853, by A. B., known to me [or, made known to me by the oath of E. F.] to be the plaintifl' above named \or, to be one of the plaintiff's above named.] J. H. B., Justice, etc. § 202. Satisfaction of Judgment in a Court of liccord. Supreme Court, \or. County Court.] A. B. I Of the day of January, one thousand eight against > hundred and forty -seven. C. D. ) Satisfaction for $ Satisfaction is acknowledged between A. B., plaintiff", and 'C. D., defendant, for dollars. Judgment docketed the tenth day of January, one thousand eight hundred and forty- five, in the office of the clerk of county. A. B. \or, T. S., Attorney for plaintiff".] ACKNOWLEDGMENT AND PEOOF OF CONVEYANOEa. 707 Subscribed and acknowledged before me, the day of , 1853, lyy- A. B., known to me [or, made known to me by the oath of E. F.] to be the plaintiff in the above entitled cause [or, the Attorney for the plaintiff in the above entitled cause, or, one of the plaintiffs in the above entitled cause.] J. H. B., Justice, &c. § 203. Oath to he administered to a Subscribing Witness. You do solemnly swear, that you will true answers make, to such questions as shall be put to you, touching the execu- tion of this deed ; So help you God : [or, You do swear in the presence of the ever-living God, that, &c., as above, omit- ting the words : So help you God ; or. You do solemnly, sin- cerely, and truly declare and affirm, that, &c., as above, omitting the words as aforesaid.^l % 204. Oath to a Witness ^proving the identity of the Pa/rties, or of the Subscribing Witness, to a Conveyance. You do solemnly swear, that you will true answers make to such questions as shall be put to you, touching the identity of the parties [or, of the subscribing witness] to this conveyance ; So help you God. [If necessa/ry, va/ry as in the foregoing Form.'] Fees. Justices are entitled, for taking the proof or acknowledg- ment of a conveyance or mortgage of real estate, or of any written instrument, to be read in evidence, and drawing and signing the certificate — for one person, to a fee of twenty- five cents ; for each additional person having executed the same instrument, twelve and a half cents ; for swearing each witness, six cents ;" For taking the acknowledgment of satisfaction of a judg- ment in the Supreme Court or County Court, thirty-seven and a half cents.'' 1 For the cases in which these various forms of oath are proper, see ante, p. 299. 2 Laws of 1840, chap. 238, § 2. = 2 K, S. 637, § 28. 708 NEW-TOEK JUSTICE. CHAPTER II. OF AFFIDAVITS AND OATHS. "Whenever any oath or affidavit is or may be required or authorized by law, in any cause, matter, or proceeding, (ex- cept oaths to jurors and witnesses in the trial of a cause, oaths of office, and such other oaths as are required by law to be taken before particular officers,) the same may be taken before any Justice of the Peace in a town. The oath or affidavit must be certified by the Justice to have been taken before him.' A Justice has power to administer an oath and take an affi- davit only in a case where such oath or affidavit is or may be required or authorized by law in some cause, matter or pro- ceeding. Justices should, therefore, be careful not to admin- ister oaths or take affidavits in regard to any and every conceivable matter where an oath or affidavit is desired by a party ; for, unless the oath or affidavit be authorized or re- quired by law, the action of the Justice will be wholly extra- official. And such action may be the source of annoyance and trouble to him ; as, if he should swear a person to a libel- lous paper, where the oath was not required by law, he might perhaps make himself liable for assisting in the publication of the libel. Justices are specially authorized to administer oaths to ar- bitrators, swearing them faithfully and fairly to hear and ex- amine the matters in controversy before them, and to make a just award, according to the best of their understanding." They are also specially authorized to administer to any su- pervisor, town clerk, assessor, overseer of the poor, commis- sioner of highways, or town sealer, the oath or affirmation of office prescribed in the 12th article of the Constitution, thus: 1 2 E. 8. 284, § 49 ; Laws of 1840, cbap. 288. 1818, chap. 1S7, ' 2 K. S. B41, § 6, a3 amended by Laws of APFIDAVITS AND OATHS. 709 " I do solemnly swear, [or, affirm, as the case may he,] that I will support the Constitution of the United States, and the Constitution of the State of ISTew-York, and that I will faith- fully discharge the duties of according to the best of my ability." This oath or affirmation must be in writing, and be sub- scribed by the party.' And the Justice must also certify in writing the day and year when the oath was taken, and de- liver the certificate to the party making the oath.' Justices are also authorized to administer the Constitutional oath to any commissioned officer of the militia.' The Justice must endorse a certiiicate of the oath on the officer's com- mission.' It is further provided, that whenever application is made to any public officer to do any act in an official capacity, and such officer requires information or proof, to enable him to decide on the propriety of doing such act, such information or proof may be required to be given by affidavit, and such offi- cer may administer all necessary oaths for that purpose.' As to the various modes of administering oaths, see ante, p. 299, where the Forms are given. The following is the usual form of swearing a person to an affidavit : § 205. Oath to a Deponent. You do solemnly swear, that the contents of this affidavit, by you subscribed, are true ; so help you God. [ Vary as in § 58 and § 59, when necessary.'] Fees. For administering an oath or affirmation, in cases where no fee is specially provided by law, and certifying the same when required, twelve and a half cents.' But a Justice is not entitled to any fee for administering the oath of office to any military officer, or to any town officer, or for certifying the same.' 1 1 E. 8. 345, § 13. • 2 id. 652, § 11. 2 id. § 14 « id. 687, § 28. ' id. 290, § 29. ' id. 652, § IT ; 1 id. 290, § 31 ; id. 345, § 14. 1 id. § 80. TIO NEW-YOEK JTSTICE. CHAPTER III. OF APPEENTICES. EvEET male infant, and every unmarried female under the age of eighteen years, with the consent of the persons or of- ficers hereinafter mentioned, may, of his or her own free will, bind himself, or herself, in writing, to serve as clerk, appren- tice, or servant, in any profession, trade, or employment ; if a male, until the age of twenty-one years ; and if a female, until the age of eighteen years ; or for any shorter time. Such binding will be as valid and effectual as if the infant were of full age at the time of making the engagement.' Such consent must be given : 1. By the father of the infant. If he be dead, or be not in a legal capacity to give his con- sent, or if he has abandoned and neglected to provide for his family, and such fact be certified by a Justice of the Peace of the town, and endorsed on the indenture, then, 2. By the mother. If the mother be dead, or be not in a legal capacity to give such consent, or refuse, then, 3. By the guardian of such infant duly appointed. If such infant have no parent living, or none in a legal capacity to give consent, and there be no guardian, then, 4. By the overseers of the poor, or any two Justices of the Peace of the town, or the County Jiidge of the county where such infant resides." Such consent must be signified in writing, by the person entitled to give the same, by a certificate at the end of, or en- dorsed upon, the indentures, and not otherwise." No partic- ular form of words is necessary for the certificate." An infant cannot be bound as an apprentice, unless he is a party to and executes the deed or indenture." The executors of any last will of a father, who are directed 1 2 E. S. 154, § 1. « 2 Hill, 696. .^ ^ » id. § 2; 5 Oowen, 268. » 8 Johii3on,««li J,'?"^ AT /.J.^v^-', »2B.8.164,§8. af->^../i :>^r>' APPEENTICES. 711 in sucli will to bring up his child to some trade or calling, may bind such child to service, as a clerk or apprentice, in like manner as the father might have done, if living.' The county superintendents of the poor in the several coun- ties may bind out any child, under the ages above specified, who is sent to any county poor-house, or who is, or whose pa- rents are chargeable to any county, to" be. clerks, apprentices, or servants, until such child, if a male, shall be twenty-one years old, or if a female, shall be eighteen years old ; which binding will be as effectual as if such child had boimd him- self with the consent of his father." The overseers of the poor of any town or city may, in like manner, bind out any such child, who, or whose parent or parents, is or are chargeable to such town or city, or who has been sent to any poor-house other than a county poor-house, with the consent in writing of any two Justices of the Peace of the town, or of the mayor, recorder, and aldermen, of any city, or of any two of them.' When a person is relieved, on his own application, by an overseer of the poor, without a previous order for that pur- pose, that is sufficient to authorize the overseers to bind out the children of such person as poor apprentices." If one over- seer of the poor bind a pauper child to the other overseer, the indenture will be defective ; the statute declaring that the overseers may bind out a child. '^ IsTo child of an Indian woman can be bound as an appren- tice under the foregoing provisions, except in the presence, and with the consent of a Justice of the Peace, a certificate of which consent, signed by the Justice, must be filed with the clerk of the town in which the indenture of apprentice- ship is executed." The age of every infant so bound, must be inserted in the indentures, and must be taken to be the true age, with- out further proof thereof; and, whenever any public offi- cers are authorized to execute any indentures, or their consent is required to the validity of the same, it is their 1 2 E. 8. 154, § 4. < 13 Johnson, 2r0. > id. § 5. 6 6 Cowen, 668. s Id. 155, § 6. ]^ = 2 E. 8. 155, § T 712 NEW-TOEK JUSTICE. duty to inform themselves fully of the infant's age.' The in- denture is only prima facie evidence of the age of the ap- prentice, and he may go behind it, and show what his true age is." Every sum of money paid, or agreed for, in relation to the binding out of any clerk, or apprentice, must be inserted in, the injientures. ftW-'^&^f*]- ^jlr^ ^^mrmf&r: ^ cM{& is'bound out by the county superin- tendents of the poOT of any county, or by the overseers of the poor of any city or town, the indentures must contain an agreement on the part of the person to whom such child is bound, that he will cause such child to be instructed to read and write, and, if a male, will cause him to be instructed in the general rules of arithmetic ; and every such indenture must also contain an agreement that the master will give to such apprentice, at the expiration of his or her service, a new bible.* The counterpart of any indentures executed by the county superintendents of the pooi", must be deposited by them in the office of the clerk of the county ; and the counterpart of such indentures executed by any overseers of the poor, must be deposited by them in the office of the clerk of their city or town.' The statute does not require any particular business to be specified, and it is sufficient that the master agrees to bring up the apprentice, and teach him such manual employment as shall be found best adapted to his talents and capacity. Therefore, in a case where the master was described as trus- tee of a society, and the apprentice was to be under his 'care and in his employment, in whatever might be for his present good, or tend to his future welfare, it was held to be suf- ficient." Any person coming from any foreign country beyond sea, may bind himself to service, if an infant, until the age of twenty-ono years, or for a shorter term. Such contract of ser- vice, if made for the purpose of raising money to pay his > 2 K. 8. 155, § 8. < id. § 10. 2 1 Bandford, Til. "id. §11. . » 2 E. S. 165, § 9. « 1 Sandford, 672. • />.v i- ^ f~^' APPEENTICES. 713 passage, or for the payment of sucli passage, may be for the term of one year, although such term may extend beyond the time when such person will be of full age ; but it can in no case be for a longer term.' ISTo contract made as aforesaid will bind the servant, unless it be acknowledged by him be- fore some mayor, recorder, or alderman of a city, or some Justice of the Peace ; nor unless a certiiicate of such ac- knowledgment, and that the same was made freely, on a pri- vate examination, be endorsed upon such contract.' And such contract may be assigned by the master, by an instru- ment in writing, endorsed thereon, executed in the presence of two witnesses, if such assignment be approved of, in wri- ting, by any such magistrate, and such approbation be also endorsed on the contract.' ^0 indenture or contract for the service of any apprentice is valid as against the person whose services may be claimed, unless made in the manner above prescribed." It is the duty of county superintendents and overseers of the poor, to take care that the terms of the contract of ser- vice be fulfilled, and that the apprentice be properly used.' The voluntary continuance of the infant in the service of his master, after he has attained his majority, is a continuance of his apprenticeship with his own consent, and the law will not imply a promise by the master to pay the apprentice for his services.^ If any person lawfully bound to service, wilfully absents himself from such service without the leave of his master, he can be compelled to serve double the time of his absence, un- less he otherwise makes satisfaction for the loss and injury sus- tained by his absence ; but he cannot be compelled to serve more than three years after the expiration of his original term of service.' If any such person refuses to serve according to law, or to the terms of his indentures, his master may apply to any Justice of the Peace of the county where he resides, who is 1 2 E. S. 155, § 12. • id. § 2T. " id. 156, § 18. 8 2 BariouT, 208. /' » id. § 14 '2 E. 8. 168, § 28. < id. 168, § 26. 714 NEW-TOEK JUSTICE. authorized, by warrant or otherwise, to send for the person so refusing, and, if such refusal be persisted in, to commit such person, by warrant, to the common jail of the county, there to remain until he consents to serve according to law." On complaint being made on oath, by any master, touching any misdemeanor or ill-behavior of any such person, to any two Justices of the Peace of the county, it is their duty to cause the person complained of to be brought before them, and to hear, examine and determine the complaint. If the complaint appears to be well founded, they may, by warrant, commit the offender to the common jail of the county, for any term not exceeding one month, there to be employed in hard labor, and to be confined in a room with no other per- son ; or they may, by a certificate under their hands, discharge the offender from his service, and the master from all obliga- tions to him." If any master is guilty of any cruelty, misusage, refusal of necessary provisions or clothing, or any other violation of the provisions of law in regard to masters, apprentices and ser- vants, or of the terms of the indentures, towards any such person so bound to service, such person may make complaint to any two Justices of the Peace of the county, who must summon the parties before them, and examine into, hear and determine the complaint, and, by certificate under their hands, discharge such person from his obligation of service.' The statutory provisions just referred to in relation to ap- prentices who wilfully absent themselves, or refuse to serve, or are guilty of any misdemeanor or ill-behavior, and in rela- tion to masters who are guilty of any cruelty, &c., do not ex- tend to any apprentice whose master or mistress has received or is entitled to receive any sum of money with him, as a compensation for his instruction." In cases where money was paid, or agreed to be paid, on the binding out of any clerk or apprentice, the like complaint may be made by any person so bound to service, to any Jus- tice of the Peace of the county in which he resides, who must inquire into the matter, and make such order and direc- 12E. S.158,§29. Md.§32. " id. 159, §§ 80, 81. Md. § 88. APPEENTICES. ' Y15 tion between the master and the person bound to service, as the equity of the case may require." If the difficulty cannot be compounded or reconciled, the Justice must take a recogni- zance from the master for his appearance at the next Court of Sessions of the coiinty, in such sum and with such sureties as he approves.' The master of any person so bound to service, where any money was paid, or agreed to be paid, on such binding out, may, in the same manner, make complaint of the misbehavior of any such person, to any such Justice, who must proceed in the same manner to inquire into the same ; and he may take a recognizance from the person bound to service, for his appearance at the next Court of Sessions.' Upon the death of any master, to whom any person may have been bound to service, as clerk, apprentice, or other- wise, by the county superintendents of the poor, or by the overseers of the poor, the executors or administrators of such master may, with the consent of the person bound to service, signified in writing, and acknowledged before a Justice of the Peace, assign the contract of such service to any other peiTson.* The above provisions apply to masters, mistresses, and male and female guardians, apprentices and wards." If the apprentice is employed by a third person, without the knowledge or consent of his master, the master is entitled to all the earnings, whether the person who employed him did or did not know that he was an apprentice." But, in an action for enticing away and harboring an apprentice, it is essential for the master to prove that the defendant knew the fact of the apprenticeship.' (^ ^j^j.^l^ a -t^^^^^^-y, ^i^l::^^^ '^'^'^*^^^P06. Afjyrmtice's Indenture. This indenture witnesseth : That 0. B., of the town of , in the county of , and State of , now aged fourteen years, by and with the consent of A. B., his father [or, mother, his father being dead, or, being legally incapaci- 12E. 8.159, §34. Md. 161, §43. 5 id. 160, § 35. « 6 Johnson, 274. » id. § 37. '1 Wendell, 276. 4 id. §41. 716 NEW-TOEK JUSTICE. tated, or, having abandoned and neglected to provide for his family] endorsed hereupon, hath voluntarily, and of his own free will and accord, put and bound himself apprentice to E. F., of the town of, &c., to learn the art, trade, and mystery of a hatter, and, as an apprentice, to serve from this date for, and during, and until the full end and term of, five years next ensuing, \or, until the said 0. B. shall have attained the age of twenty-one years, which will be on the day of , in the year 18 ,] during all which time the said apprentice shall serve his master faithfully, honestly, and industriously ; his secrets keep, and lawful commands every where readily obey ; and at all times protect and preserve the goods and property of his said master, and not suffer or allow any to be injured or wasted. He shall not buy, sell, or traffic, with his own goods, or the goods of others, nor be absent from his said master's service, day or night, without leave ; but in all things behave himself as a faithful apprentice ought to do, during the said term. And the said master shall clothe and provide for the said apprentice in sickness and in health, and supply him with suitable food and clothing ; and shall use and employ the utmost of his endeavors to teach, or cause him, the said apprentice, to be taught or instructed, in the art, trade, or mystery of a hatter; and also cause the said apprentice, within such term, to be instructed to read and write, and in the general rules of arithmetic ; and at the end of the said term, give the said apprentice a new bible. [7/-' necessa/ry, insert here : And the said E. F. acknowledges that he has received, with the said 0. B., from A. B., his father, \or, mother,] the sum of dollars, as a compensation for his instruction, as above mentioned ; or, And the said E. F. further agrees to pay to the said C. B. the following sums of money, viz : for the first year of his service, dollar's ; for the second year of his service, dollars ; and for every subsec^uent year, until the expiration of his term of service, dollars ; which said payments are to be made on the first day of January in each year.] And, for the true, performance of all and singular the covenants and agree- ments aforesaid, the said parties bind themselves, each unto the other, firmly by these presents. In witness whereof, the parties aforesaid have hereunto set their hands and seals, the day of , in the year one thousand eight hundred and Signed, sealed, and delivered, \ 0. B. [l. s.J in presence of I E. F. [l. s.l G. H. ) §207. Consent ly Father or Mother. I do hereby consent to, and approve of, the binding of my APPEENTICES. 717 son, 0. B., as in the above [or, within] indenture mentioned. Dated the day of , in the year 18 . A. B. § 208. Justice's Certificate, where the Father does not give ttoe Consent. I. G. H., a Justice of the Peace of the town of , in the county of , do certify, that A. B., the father of the infant named in the within indenture, is dead, [or, is not in a legal capacity to give his consent thereto ; or, has abandoned and neglected to provide for his family.] Dated the day of , 18 . Gr. li., Justice of the Peace. § 209. Consent hy Guardian. I, S. T., the guardian, duly appointed, of 0. B., the infant in the within indenture named, do certify, that the father and mother of the said C. B. are dead, [or, that the father of the said C. B. is dead, and that the mother of the said C. B. refuses her consent to the said indenture of apprenticeship, or, is not in legal capacity to give her consent to the said indenture of apprenticeship ;] and that I do hereby consent, as his guardian, that he, the said C B., may bind himself in and by the said indenture. Dated the day of , 18 . S. T., Guardian of the said 0. B. § 210. Consent ly the Oveo-seers of the Poor, or two Justices of the Peace of the town, or the County Judge of the county where the Infant resides. "We, the undersigned, Overseers of the Poor of the town of , [or, two Justices of the Peace of the town of , , or, I the undersigned County Judge of county,] where the within named C. B. resides, do certify, that the said 0. B. has no parent living, [or, no parent in a legal capacity to give consent to the within indenture ; or, no father living, and that his mother is not in a legal capacity to give consent to the within indenture,] and that he has no guardian, and that we, the said Overseers, [or, Justices ; or, I, the said Judge,] do con- sent that the said 0. B. may bind himself in and by the said indenture. G. H. M. P. § 211. Complaint ly Master against Apprentice for refusing to serve. To G. H., a Justice of the Peace of the County of : I, E. P., of the town of , in said county, hatter, 718 NBW-TOEK JTJSTIOE. hereby make complaint to you, that 0. B., an apprentice law- fully bound to serve me, the said E. F., whose term of service is still unexpired, and with whom I have neither received, nor am entitled to receive, any sum of money as a compensation for his instruction, refuses to serve me, as by law and the terms of his indenture of apprenticeship he is required. Dated the day of , 18 . E. E. County, ss : E. E., the person named in the foregoing complaint, being duly sworn, deposes and says, that the foregoing complaint, and the facts and circumstances stated and set forth therein, are true. Sworn to before me, this ) -c -r? day of ,18 _. ] ^■^■ G. H., Justice of the Peace. § 212. Woj'rant on the foregoing Complaint. County, ss : To any Constable of said County, greeting : "Whereas complaint has been made to me, Gr. H., one of the Justices of the Peace of said county, upon the oath of E. F., of , in said county, hatter, that C. B., an apprentice lawfully bovind to serve the said E. F., whose term of service is still unexpired, and with whom the said E. E. has neither received, nor is entitled to receive, any sum of money as a compensation for his instruction, refuses to serve the said E. E., as by law and the terms of his indenture of apprentice- ship he is required : ISTow, therefore, you are commanded, in the name of the people of the State of l^ew-Tork, forthwith to apprehend the said C. B., and bring him before me at my office in , to answer to the said E. F., and to be dealt with according to law. Given under my hand, this day of , 18 . G. H., Justice of the Peace. § 213. Commitment of am, Apprentice refusing to serve. County, ss : To any Constable of said county, greeting : Whereas complaint on oath was made to me, the iinder- signed, G. PL, a Justice of the Peace of said county, by E. F., of , in said county, hatter, that C. B., an apprentice lawfully bound to serve the said E. F., whose term of service was still unexpired, and with whom the said E. F. had nei- ther received, nor was entitled to receive, any sum of money as a compensation for his instruction, refused to serve the said E. F., as by law and the terms of his indenture of appren- ticeship he was required ; And whereas the said C. B., by APPEENTICES. Y19 virtue of my warrant thereupon issued, has been brought be- fore me to be dealt with according to law ; And whereas, after due proof before me of the facts as above stated and set forth, the said C. B. still persists in such refusal to serve the said E. F.: Now, therefore, you are hereby commanded, in the name of the people of the State of New-York, to take and convey the said 0. B., to the common jail of said county, and deliver him to the keeper thereof, who is commanded to re- ceive the said C. B. into the said common jail, there to re- main until he shall consent to serve the said E. F. according to law. Given, &c., [as in § 212.] § 214. Complaint to two Justices concerning any Jfisde- meanor or HI Behavior of an Apprentice. To G. H. and S. T., Esquires, Justices of the Peace of the county of : I, E. F., of the town of , in said county, hatter, hereby make complaint to you, that C. B., an apprentice law- fully bound to serve me, the said E. F., whose term of ser- vice is still unexpired, and with whom I have neither receiv- ed, nor am entitled to receive, any sum of money, as a com- pensation for his instruction, has been guilty of misdemeanors and ill behavior towards me, the said E. F., as follows, viz : {describe the particulars of the offences.'] E. F. County, ss: E. F., the person named in the foregoing complaint, being duly sworn, &c., {as in § 211.] § 215. Warrant on the foregoing Complaint. County, ss : To any Constable of said county, greeting : "Whereas complaint has been made to us, the undersigned, Justices of the Peace in and for the said county, upon the oath of E. F., of , in said county, hatter, that C. B., an apprentice lawfully bound to serve the said E. F., whose term of service is still unexpired, and with whom the said E. F. has neither received nor is entitled to receive, any sum of money as a compensation for his instruction, has been guilty of misdemeanors and ill behavior towards him, the said E. F., as follows, viz : {give tlie particulars^ as in the complaint .•] Now, therefore, you are hereby commanded, in the name of the people of the State of New-York, forthwith to apprehend the said C. B., and bring him before us, at the office of G. H., in the town of , that we may hear, examine into, and 720 NEW-TOEK JUSTICE. determine the said complaint, and deal with the said C. B. according to law. Given under our hands, this day of , 18 . G. H., Justice of the Peace. S. T., Justice of the Peace. § 216. Commitment of am, Apprentice on the foregoing Complaint. County, ss : To any Constable of said county, greeting : Whereas complaint on oath was made to us, G. H. and S. T., Justices of the Peace in and for the said county, by E. F., of , in said county, hatter, that C. B., an apprentice lawfully bound to serve the said E. F., whose term of service was still unexpired, and with whom the said E. F. had nei- ther received nor was entitled to receive, any sum of money as a compensation for his instruction, had been guilty of mis- demeanors and ill behavior toward him, the said E. F., as follows, viz : [as in the complaint j"] And whereas the said C. P., by virtue of our warrant thereupon issued, has been brought before us, and, upon due examination of the proofs and allegations of the parties, it satisfactorily appears to us, that, the said C. B. is guilty of the premises charged against him, as aforesaid :* Now, therefore, you are hereby command- ed, in the name of the people of the State of New- York, to take and convey the said C. B. to the common jail of said county, and deliver him to the keeper thereof, who is com- manded to receive the said 0. B. into the said common jail, there to be employed in hard labor, and to be coniined in a room with no other person, for the term of \not exceeding one month.~\ Given, &c., [as in^ 215.] § 217. Discha/rge of the Apprentice from his Service, and of the Master from his Obligations. County, ss : Whereas complaint on oath was made to us, &c., [as in § 216 to the *, and then add .•] Now, therefore, we do hereby discharge the said C. B. from the service of the said E. F., and the said E. F. from all and every of his obligations to the said C. B., incurred under and by virtue of the indentures of apprenticeship of the said C. B. Given, &c., [as in § 215.] § 218. Complaint ly an Apprentice to two Justices, for the Cruelty orMisu^sage of his Master, or his refusal to furnish him with necessary Provisions or Clothing. To G. H. and S. T., Esquires, two of the Justices of the Peace of the county of : APPKENTICES. 721 I, 0. B., apprentice to E. F., of the town of , in said county, hatter, hereby make complaint to you, that the said E. F., to whom I am lawfully bound by indentures of appren- ticeship, the term of service under which has not yet ex- pired, and who has neither received, nor is entitled to re- ceive, any sum of money as a compensation for my instruc- tion, has cruelly beat, bruised, and wounded me, the said C. B., being his apprentice, as aforesaid ; [or, has misused and ill treated me, the said C. B., being his apprentice, as afore- said, by refusing to furnish me with necessary provisions and clothing ;] to wit, at , aforesaid, on the day of , 18 . C. B. " County, ss : C. B., the person named in the foregoing complaint, being duly sworn, &c., [as m§ 211.] § 219. Summons on the foregoing Complaint. County, ss: To any Constable of said county. Greeting : Whereas complaint has been made to us, the undersigned. Justices of the Peace, in and for the said county, upon the oath of C. B., apprentice to E. F., of , in said county, hatter, that the said E. F., to whom the said C. B. is lawfully bound by indentures of apprenticeship, the term of service under which has not yet expired, and who has neither receiv- ed, nor is entitled to receive, any sum of money as a compen- sation for the instruction of the said C. B., has cruelly beat, &c., [as in § 218, substiUoti/ng himybr me :] Now, therefore, you are hereby commanded, in the name of the people of the State of New- York, to summon the said E. F. and C. B. to appear before us, at the office of G. H., in the town of , on the day of instant, at two o'clock in the after- noon of that day, that we may examine into, hear and deter- mine the said complaint. Given, &c., [as in § 215.] § 220. Discha/rge of ApprenUce on the foregoing Convplaint. County, ss : Whereas complaint on oath was made to us, the undersign- ed, G. H. and S. T., Justices of the Peace in and for said county, by C. B., apprentice to E. F., of , in said county, hatter, that the said E. F., to whom the said C. B. was law- fully bound by indentures of apprenticeship, the term of service under .which was still unexpired, and who had neither received, nor was entitled to receive, any sum of money as a compensation for the instruction of the said C. B., had cruelly 47 722 NEW-TOEK JUSTICE. beat, &c., [as in § 219 ;] And whereas the said E. F., by virtue of our summons thereupon issued, has appeared before us, and, upon due examination of the proofs and allegations of the parties, it satisfactorily appears to us, that the said E. F. is guilty of the premises so charged against him, as aforesaid : Now, therefore, we do hereby discharge the said C. B. from the service of the said E. F., anything in his indentures of apprenticeship, as aforesaid, to the contrary, notwithstanding. Given, &c., [as in § 215.] § 221. ComplaAnt ly an Apprentice against his Master, where Money has heenpaid, or agreed to he paid. To G. H., a justice of the Peace of the county of : ■ I, C. B., apprentice to E. F., of the town of , in said county, hatter, hereby make complaint to you, that the said E. F., to whom I am lawfully bound by indentures of appren- ticeship, the term of service under which has not yet expired, and who has received the sum of fifty dollars, [or, who is en- titled to receive the sum of fifty dollars, on the day of , 18 ,] as a compensation for my instruction, has cruelly beat, bruised, and wounded me, the said C. B., being his ap- prentice, as aforesaid, [or, has misused and ill treated me, «fec., as in § 218.] County, ss : 0. B., the person named in the foregoing complaint, being duly sworn, &c., [as in § 211]. § 222. Summons on the foregoing Complaint. County, ss : To any Constable of said county. Greeting : Whereas complaint has been made to me, one of the Jus- tices of the Peace in and for the said county, upon the oath of C. B., apprentice to E. F., of , in said county, hatter, that the said E. F., to whom the said C. B. is lawfully bound by indentures of apprenticeship, the term of service iinder which has not yet expired, and who has received the sum of fifty dollars, [or, as in § 221,] as a compensation for the in- struction of the said C. B., has cruelly beat, bruised and wounded him, the said C. B., being his apprentice, as afore- said, [or, has misused and ill treated him, &c., as in § 218 :] Now, therefore, you are hereby commanded, in the name of the people of the State of New- York, to summon the said E. F. and 0. B. to appear before me, at my ofiice, in the town of , in said county, on the day of instant, at two o'clock in the afternoon of that day, that I may in- quire into the matter and make such order and direction be- APPEENTICES. 723 tween the said E. F. and the said C. B., as the equity of the case may require. Given, &c., [asm% 212.] § 223. Heoognizomce of Master and Surety, on the foregoing CoTTvplamt. State of New-York, ) ^^ . County, j We, E. F. and L. M., of , in said county, acknowledge ourselves to be severally indebted to the People of the State of New-York, that is to say : The said E. F. in the sum of dollars, and the said L. M. in the sum of dol- lars, to be well and truly paid, if default shall be made in the condition following :* Whereas complaint on oath was made to the undersigned, G. H., a Justice of the Peace of the said county, by C. B., an apprentice, against E. F., his master, above named, and the parties were summoned and appeared before the said Justice, and, after due examination into the premises, the difficulty between the said parties could not be compounded or recon- ciled : Now, therefore, the condition of this recognizance is such, that if the said E. F. shall personally appear at the next Court of Sessions, to be held in and for said county, then and there to answer to the complaint aforesaid, and to do and re- ceive what shall by the Court be then and there enjoined upon him, and shall not depart the Court without leave, then this recognizance shall be void, otherwise, of force. Taken, subscribed, and acknowledged, ) E. F. [l. s.J the day of , 18 , before me, j L. M. [l. s.] G. H., Justice of the Peace. § 224. Complaint hy Master against Apprentice refusing to serve, where Money has heenpadd, or agreed to he paid. To G. H., a Justice of the Peace of the county of : I, E. F., of the town of , in said county, hatter, hereby make complaint to you, that C. B., an apprentice lawfully bound to serve me, the said E. F., whose term of service is still unexpired, and with whom I have received the sum of dollars, [or, with whom I am entitled to receive the sum of dollars, on the day of ,18 ,] as a compensation for his instruction, refuses to serve me, as by law and the terms of his indenture of apprenticeship he is required. Dated, &c., \_as in% 211, with the verification.'] § 225. Summons on the foregoing Complaint. County, ss : To any Constable of said county. Greeting : Whereas complaint has been made to me, G. H., one of the 724 NEW-TOEK JUSTICE. Justices of the Peace of said county, upon the oath of E. F., of , in said county, hatter, that C. B., an apprentice lawfully bound to serve the said E. F., whose term of service is still iinexpired, and with whom the said E. F. hath received the sum of dollars, [or, with whom the said E. F. is entitled to receive the sum of dollars, on the day of , 18 ,] as a compensation for his instruction, refuses to serve the said E. F., as by law and the terms of his inden- ture of apprenticeship he is required : Now, therefore, you are hereby commanded, &c., \_as m § 222.] § 226. Recognizance of Apprentice md Swreiy on the foregoing Complai/nt. State of New-York, [ County, f ^^• We, C. B., and E. B., of, &c., \_as m § 223 to the *, and then add .■] Whereas complaint on oath was made to the un- dersigned, G. H., a Justice of the Peace of the said county, by E. F., the master, against C. B., his apprentice above named, and the parties were summoned, &c., [as in § 223 to the end, suhstiiMi/mg the ncmie of the apprenticefor that of the master.'] Fees. The fees allowed by law for services under the statute re- lating to masters and apprentices, are as follows : To Justices.^'] Drawing, copying and certifying a recog- nizance, twenty-five cents ; A warrant of commitment, nineteen cents ; Taking and certifying the acknowledgment of any instru- ment which is required to be acknowledged before a Justice, twenty-five cents ; For administering any oath or affirmation, twelve and a ialf cents ; For issuing a summons, twenty-five cents ; For a warrant of arrest, nineteen cents. To Constables. '1 Serving a summons, twelve and a half ;cent8 ; Mileage, going only, for each mile, six cents ; Arresting and committing any person pursuant to process, £fty cents ; Mileage, going only, for each mile, six cents. ■i2E.,S,68T,§§28,a9. » Id. 647, §40. BASTAUDS. 725 CHAPTEH lY. OF BASTARDS. EvEET child is deemed a bastard, within the meaning of ,this Chapter, who is begotten and born, 1. Out of lawful matrimony ; 2. ' While the husbau'd of 'its" mother continue'd absent out of this State, for one whole year previous to such birth, separate from its mother, and leaving her during that time continuing and residing in this State; 3. During the separation of its mother from her husband, pursuant to a decree of any Court of competent authority.' The statute provides, that if any woman shall be delivered of a bastard child, which shall be chargeable, or likely to become chargeable, to any county, city or town, or shall be pregnant of a child likely to be born a bastard, and to become chargeable to any county, city or town, some one of the super- intendents of the poor of the county, or of the overseers of the poor of the town or city, where such woman shall be, must apply to some Justice of the Peace of the same county to make inquiry into the facts and circumstances of the case.' § 227. Amplication of a Superintendent, or Overseer, of the Pom', in a case of Bastardy. County, ss: To G-. H., Esq., a Justice of the Peace of said county : E. B. having been delivered of a bastard, which is charge- able \or, likely to become chargeable] to the said county \or, to the town of , in said county ; or, E. B., being preg- nant of a child likely to be born a bastard, and to become chargeable, &c.,] the undersigned E. F., a Superintendent of the Poor of the said county, \or, the Overseer of the Poor of said town,] pursuant to' the statute in such case made and provided, applies to you to make enquiry into the facts and circumstances of the case. Dated, this day of ,18 . E. F. 1 1 E. 8. 641, § 1. na.642,§6. 726 NEW-TOEK JUSTICE. The Justice so applied to must, by an examination of the woman on oath, and upon such other testimony as may be offered, ascertain the father of the bastard, or of the child likely to be born a bastard ; and must then issue his warrant, directed to any constable of the county, commanding him forthwith to apprehend the reputed father, and bring him before the Justice issuing the warrant, for the purpose of hav- ing an adjudication respecting the filiation of such bastard, or of such child likely to be born a bastard. '^^^^ § 228. Examinatim hefore Birth. County, ss : E. B., of the town of , in said county, being duly sworn, says, that she is now with child, and that the child of which she is pregnant is likely to be born a bastard, and to become chargeable to said county; [or, to the town of , in said county ;] and that C. D., of , is the father of said child. Subscribed and sworn, this ) E. B. day of > 18 , before me, j G. H., Justice. §229. ExamimaUon after Birth. County, ss: E. B., of the town of , in said county, being duly sworn, says, that on the day of last, she was delivered of a bastard child, which is chargeable [or, likely to become chargeable] to said county ; [or, to the town of , in said county ;] and that C. D., of, &c., [as in § 228, to the end. § 230. Wa/rramt to a^pprehend Beputed Father. County, ss : To any Constable of said County, greeting : "Whereas, E. B., of , in said county, upon her examina- tion, on oath, before me, the undersigned, a Justice of the Peace of said county, this day had, did declare that, &c., [as m the exa/inination /] And whereas, E. F., Overseer of the Poor of said town, [or, one of the Superintendents of, &c., as the case may 5e,] in order to indemnify the said town, [or, county,] in the premises, has applied to me to make enquiry into the facts and circumstances of the case : You are there- > 1 E. 8. 642, § 6. BASTAEDS. 727 fore hereby commanded, in the name of the people of the State of New- York, forthwith to apprehend the Baid 0. D., and to bring him before me, at my office in , aforesaid, for the purpose of having an adjudication respecting the filia- tion of such bastard child, [or, of such child likely to be born a bastard.] Witness my hand, this day of , 18 . . G. H., Justice of the Peace. If the person charged as the reputed father resides or is in any other county of the State than that in which the warrant issued, the Justice issuing the same must direct, in writing, upon the warrant, the sum in which any bond shall be taken from the person so charged.' §231. Endorsement on a Wm-rcmt of Arrest to he executed in a Foreign Cov/nty. I, the within named Justice of the Peace, direct that the penal sum in which any bond shall be taken of the within named C. D., shall be dollars. G. H., Justice. The officer having the warrant must carry it to some Jus- tice of the city or county wherein the person charged as the reputed father resides ; and the Justice to whom it is pre- sented, must, on proof being made to him of the hand-writing of the Justice who issued it, endorse his name thereon, with an authority to arrest such person in the county where the Justice so endorsing resides." § 232. Endorsement hy a Justice in a Foreign County. County, ss : The within warrant, with the endorsement made thereon by the Justice by whom it was issued, of the sum in which any bond is to be taken, having been presented to me, the under- signed, I. J., Justice of the Peace of said county, and proof having been made to me of the hand-writing of the Justice who issued the said warrant, the arrest of the said 0. D. is hereby authorized, if he can be found within the county of Dated, &c., \_as in % 227.] I. J., Justice. This endorsement is a sufficient authority to the person 1 1 E. 8. 643, § 7. a id. 728 NEW-YOEK JUSTICE. bringing the warrant, and to all others to whom it was origin- ally directed, to execute it in the county where it is endorsed.' The reputed father, when apprehended, must be carried Ijefore the Justice who endorsed the warrant, or some other Justice of the same county, who may take from him a bond to the people of the State, with good and sufficient sureties, in the sum so directed on the warrant, conditioned to indemnify the county, town, or city where the bastard shall have been born, or where the woman likely to have the bastard shall be, and every other county, town, or city, which may have incurred any expense, or may be put to any expense, for the support of such child, or of its mother during her confine- ment and recovery therefrom, against all such expenses, and to pay the costs of apprehending such father, and of any order of filiation that may be made.' Or, the Justice may take from the reputed father a bond as aforesaid, in the sum directed on the warrant, with good and sufficient sureties, conditioned that such father will appear at the next Court of Sessions to be held in the county where the warrant was originally issued, and not depart the said Court without its leave.' A bond conditioned to indemnify the county, or to appear at the next Court of Sessions, although in the alternative, is valid, and may be enforced ; ■" but if the bond, in addition to the conditions required by statute, contains other conditions, imposing further obligations on the obligors, it is void.' § 233. Bond to ie taken hy the Justice hefore whom the ren- ted Father is own'ied. Know all men by these presents, that we, C. D. and E. F., of in the county of , are held and firmly bound unto the People of the State of New-York, in the sum of dollars, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administra- tors, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of 1853.* Whereas, the said C. D. has been this day brought before the undersigned, I. J.^ one of the Justices of the Peace of the > 1 E. B. 643, § 7. * 18 Wendoll, 697. 2 Id. § 8. » 1 Hill, 298. Md. BASTAEDS. 729 county of , by virtue of a warrant issued by G. H., one of the Justices of the Peace of the county of , "whereon my name [or, the name of 0. M., one of the Justices of the Peace of the said county of ,] is endorsed, with an authority to arrest the said C. D. in said county of ; in which warrant it is recited, that E. P., of , in said county of upon her examination on oath, before the said G. H., Justice, did declare herself pregnant of a child, which is likely to be born a bastard, and to become charge- able [or, did declare that she was, on the day of last, at aforesaid, delivered of a bastard child, which is chargeable] to said town [or, county ;] And whereas, upon the said warrant is endorsed the direction of the said G. H., that the penal sum in which any bond shall be taken from the said C. D., shall be $ : JSTow, the condition of this obli- gation is such, that if the said 0. D. shall indemnify the said town [or, county] of , and every other county, town^ or city, which may have incurred any expense, or may be put to any expense, for the support of such child, or of its mother during her confinement and recovery therefrom, against all such expenses, and shall pay the costs of appre- hending him, the said C. D., and of any order of filiation that may be made in this matter, [or, if the said C. D. shall ap- pear at the next Court of Sessions to be holden in the said county of , and shall not depart the said Court with- out its leave,] then this obligation to be void ; otherwise, of force. Sealed and delivered in the presence ) C. D. [l. s.J of, and the security approved lyr me, j K. F. [l. s.] I. J., Justice, &c. • * - If the reputed father gives the bond with either of "the con- ditions required by the statute, then the Justice taking it must discharge him from arrest, and endorse on the warrant a certificate to that effect. He must then deliver the warrant and the bond so taken by him, to the constable who brought the warrant, by whom they must be delivered to the Justice who granted the warrant, who must proceed thereupon in the same manner as if such bond had been taken by him.' § 234. CerUficate to he endorsed on Wa/rrant. County, ss: I certify that the within named C. D., who was brought be- U E. 8. 64S, % 9. 730 NEW-TOEK JTTSTICE. fore me, I. J., one of the Justices of the Peace of the county of , by virtue of the within named warrant, was dis- charged from arrest by me, upon his executing a bond pursu- ant to statute. I. J., Justice. Dated, &c., [as in § 227.] If the person apprehended does not execute the bond so re- quired, with one or the other of the conditions aforesaid, to the satisfaction of the Justice before whom he is brought, then the constable or other officer having the warrant, must take him before the Justice who originally issued the warrant.' When he is brought before such Justice, whether he was ar- rested in the county of that Justice, or in some other county, such Justice must immediately call to his aid some other Jus- tice of the same county, and they two must proceed, without any unnecessary delay, to make an examination of the matter. They must examine the mother of the child, or the woman who is pregnant, on oath, in presence of the person so charged or apprehended, touching the father of the child, and must hear any proofs that may be offered in relation thereto ; and, on the application of the person so charged, or of the persons appearing in behalf of the public, either of the Justices must issue a subpoena to compel the attendance of witnesses before them, which may be enforced, and the witnesses may be com- pelled to appear and testify, in the same manner as in any, civil a,ction before a Justice of the Peace." t^(w-:^-w%>£i«- § 235. Sub^o&na in a case of Bastardy. County, ss : To E. F., O. P., &c., greeting: You are hereby commanded, in the name of the People of the State of ISTew-York, personally to appear before G. H., and the undersigned, S. T., two of the Justices of the Peace of said county, forthwith, [or, as the case may be,] at the office of the said S. T., in , in said county, to testify what you do know touching the father of a bastard child, wherewith E. B. alleges she is now pregnant, [or, which was lately born Witness, &c., [as in § 230.] > 1 R 8. M4, § 10. » Id. § 11 ; ante, p. 274 BASTAEDS. 731 If the Justices are not prepared to proceed, or the person charged requires delay, and gives sufficient reasons therefor, they may adjourn such examination for any time not exceed- ing six weeks, and must take from such person a bond, with sureties, for his appearance before them at such adjourned day, with a penalty in such a sum as they shall deem a full indemnity for the expense of supporting the bastard and its mother.' § 236. Bond on Adjournment.. Know all men, &c., [as in § 233, to the *, and then add:'\ Whereas the above named 0. D. has been this day brought before G-. H. and S. T., two of the Justices of the Peace of said county, charged upon the oath of E. B., of afore- said, with being the father of a bastard child, with which the said E. B. alleges she is pregnant, [or, of a bastard child late- ly born of the said E. B.;] And whereas, at the request of the said C. D., and for sufficient reasons given, the said Justices have determined to adjourn the examination of the said mat- ter, upon the execution of this bond, until the day of instant, at o'clock in the noon, at the office of the said G. H., in : Now, the condition of this ob- ligation is such, that if the said C. D. shall personally appear before the said Justices, at the time and place last aforesaid, and not depart therefrom without leave, then this obligation to be void ; otherwise, of force. C. D. [l. s.] K. F. [l. s.] Sealed and delivered in the presence of us, by whom the sureties and penalty are approved. G-. H., S. T., Justices of the Peace. The Justices must determine who is the father of the bas- tard, or of the child likely to be born a bastard, and must proceed as follows : 1. If they determine that the person charged and apprehended is not the father of the bastard or child, they must forthwith discharge him ; 2. If they deter- mine that he is such father, they must make an order of filia- tion, in which they must specify the sum to be paid weekly, or otherwise, by the putative father, for the support of the bas- tard, or of the child likely to be born a bastard ; 3. If the mother of the child be in indigent circumstances, they must 1 1 E. S. 644, §§ 12, 16. 732 NEW-TOEK JirSTIOE. determine the sum to be paid by the putative father, for the sus- tenance of the mother during her confinement and recovery ; i. They must certify the reasonable costs of apprehending and securing the putative father, and of the order of filiation ; 5. They must reduce their proceedings to writing, and subscribe them.' An adjudication thus made by two Justices in favor of the person charged with being the father of a bastard child, is a bar to a second proceeding against him respecting the same matter.' § 237. Order of FiUaUon. County, ss : Whereas, we, the undersigned, G. H. and S. T., being two of the Justices of the Peace of said county, have this day associated, at , in said county, upon the application of E. F., Overseer of the Poor of the town of , [w a Superintendent of the Poor of said county,] for the purpose of making an examination and determination touching a cer- tain bastard child, lately born in said town, of the body of E. B., [or of a certain certain child wherewith E. B. is said to be pregnant, and which, when born, will be a bastard,] and chargeable [or, likely to become chargeable] to said town, [or, county,] and of which child C. D. was alleged to be the father ; And whereas we have duly examined the said E. B. on oath, in the presence of the said 0. D., touching the fa- ther of said child, and have also heard the proofs and alle- gations to us oifered in relation thereto, as well on the part and behalf of the said Overseer, [or, Superintendent,] as of the said C. D.; And whereas it appears that the said E. B. was, on the day of last, delivered of a bas- tard child in said town, [or, that the said E. B. is now preg- nant of a child, which, when born, will be a bastard,] and which is chargeable [(»•, likely to become chargeable] to said town, [or, county,] and that the said 0. D. is the father of said child : We do, therefore, adjudge him, the said C. D., to be the father of said bastard child ; And further, we do here- by order that the said C. D. pay to the Overseer of the Poor of the said town of , [or, to the Superintendents of the Poor of said county,] for the support of the said child, the weekly sum of one dollar, so long as the said child shall continue chargeable to said town, [or, county;] And inas- much as it appears to us, and we find, that the said E. B. is in indigent circumstances, we determine and order that the said 0. D. pay to the said Overseer of the Poor, [or, Super- 11E.S.6H§18. >5HU1,448. BASTAEDS. 733 intendents,] for the sustenance of the said E. B., during her confinement and recovery therefrom, the sum of twenty dol- lars. And we do hereby certify the reasonable costs of ap- prehending and securing the said father, and of this order of filiation, at the sum of dollars. ' Given under our hands, at aforesaid, this day of 18 . G. H., S. T., Justices, &c. An order of filiation, legally made, cannot afterwards be vacated by two other Justices." The person adjudged to be the reputed father, must, upon notice of the order, immediately pay the amount certified as the costs of his apprehension, and of the order of filiation." He must also enter into a bond to the People of this State, in such sum as the Justices shall direct, with good and sufficient sureties, to be approved by them, with one or the other of the following conditions : 1. That he will pay weekly, or other- wise, as shall have been ordered, such sum for the support of the child, and for the sustenance of the mother, as shall have been ordered, or shall at any time thereafter be ordered by the Court of Sessions of the same county ; and that he will fully and amply indemnify the county and town, or city, where the bastard was born, or where the woman likely to have such bastard shall be, and every other county, town or city, which may have incurred any expense, or may be put to any expense for the support of such child, or of its mother during her confinement and recovery therefrom, against all such expenses ; or, 2. That he will appear at the next Court of Sessions of said county, and not depart the said Court without its leave.' The sureties in an indemnity bond, conditioned to indem- nify the town at all times thereafter, will not be discharged when the infant attains the age of twenty-one years ; they are liable as long as the child or man continues chargeable to the town." The mother of a bastard child three or four years old, is entitled to its custody, and the putative father, and his surety in a bond given for the maintenance of the 1 15 Johnson, 208. » Id. » 1 K. S. 645, § 14. • 1 Jolmeon, 486. 73i NEW-TOEK JUSTICE. child, cannot exonerate themselves from liability by demand- ing the child.' § 238. Bond on Order of Filiation. Know all men, &c., [as in § 233, to the *, 2 Denio, 12T. ' 1 E. S. 645, § 16. 736 NEW-TOEK JUSTICE, by_ the Court of Sessions of the said county, or shall pay the said costs and charges; [or, shall execute such bond in the penalty required, as aforesaid ; or both, as the ease may 'be.'] Given, &c., \_as in § 237.] During the examination, and until he is discharged by the Jus- tices, the reputed father must remain in the custody of the constable who apprehended him, unless a bond shall have been taken for his appearance upon any adjournment, as before specified. If he is committed to jail, he must be confined therein without being let to bail, and is not entitled to the jail liberties.' When any bond taken out of the county as aforesaid, by which the person charged shall be bound to appear at the next Court of Sessions, is returned to the Justice who issued the warrant, such Justice must, in like manner, call in the aid of another Justice of the Peace of the same county ; and the two Justices must proceed, in the manner aforesaid, to deter- mine who is the father of the bastard, or of the child likely to be born a bastard ; and must make an order of filiation, and prescribe the sum to be paid by such putative father, for the support of the child, and for the suste- nance of the mother, as aforesaid ; and must certify the rea- sonable costs of apprehending the said father, and of the order of filiation." Such examination and order may be made in the absence of the person so charged, unless, before they are made, he personally requires of the Justice issuing the war- rant, that the examination be made in his presence. If he so requires, reasonable notice of the time and place of the ex- amination must be given to him ; and he may appear and oifer testimony in relation to the matters to be inquired into, and the same proceedings must be had as in the case of his - - - ' — '^'X*' / ' .., . Justifce or Justices may compel the mother of a bastard so chargeable, or likely to become chargeable, or a woman pregnant with a child likely to be born a bastard and to become so charge- able, to testify and disclose the name of the father of such > 1 E. S. 645, § 17. ' d. 6«, § 19. Md. §18. BASTAEDS. 737 bastard or child ; and, in case of her refusal, may, after the expiration of one month from the time of her delivery, if she shall he sufficiently recovered, commit her to the com- mon jail of the county, by a warrant under his hand, or the hands of such Justices, there to remain until she shall testify and disclose the name of such father. The warrant must distinctly set forth the cause of commitment.' The Justices must be careful to describe the person committed, by her proper name ; otherwise, they may be liable to an action for false impris- onment.'' § 240. Warrant to commit a Mother who refuses to disclose the Name of the Father. County, ss : To any Constable of said county, greeting : Whereas we, the undersigned, G. H. and S. T., Justices of the Peace of said county, being now associated for the pur- pose of examining into and making order for the indemnity of the town of in said county, [or, for the indemnity of said county,] against the support of a certain child, said to have been born a bastard of the body of E. B., and chargeable [or, likely to become chargeable] to said town, [or, county,] upon the application of E. F., Overseer of the Poor of said town, [or, a Superintendent of the Poor of said county,] have required the said E. B., M'ho is now before us, to submit to an examination on oath, touching such charge, in the presence of C. D., who has been brought before us charged with being the father of said child, and to testify and disclose the name of such father, but the said E. B. wholly refuses so to testify and disclose ; and inasmuch as it now appears to us, upon due proof thereof, given on oath before us, that more than a month has elapsed since the said E. F. was de- livered of said child, and that she is now sufficiently recovered from her confinement : You are therefore hereby commanded, in the name of the people of the State of New- York, to take the said E. B., and convey her to the common jail of the said county, the keeper whereof is required to detam the said E. B. in his custody in said jail, until she shall so testify and disclose the name of such father. Given, &c., [as in § 237.] If the mother of a bastard child, chargeable or likely to be chargeable, as before declared, is possessed of any property 1 1 E. S. 646, § 20. « 4 "Wendell, 665. 48 738 NEW-TORK JUSTICE. in her own riglit, any two Justices of tlie Peace of the county where such mother may be, on the application of any county superintendent, or overseer of the poor, must examine into the matter, and, in their discretion, make order for the keep- ing of such bastard, by charging such mother with the pay- ment of money weekly, or other sustentation, for the support of the child, as they shall think meet.' § 241. Summons where the Mother has Property in her own Hight. County, ss: To any Constable of the said County, greeting : Tou are hereby required to summon E. B., of , in said county, to appear before us, the undersigned, G. H. and S. T., Justices of the Peace of said county, on the day of instant, at two o'clock in the afternoon, at the office of the undersigned, G-. H., to show cause, if any she may have, why we' should not make an order for the keeping of a bastard child, said to have been lately bom of the said E. B., and chargeable [or, likely to become chargeable] to said county, \or, town,] by charging the said E. B. with the payment of money weekly, or other sustentation, for the support of such child ; E. F., Overseer of the Poor of the said town, \or, a Su- perintendent of the Poor of said county,] having applied to us for that purpose. Given, &c., [as in § 237.] §242. Order to eomjoel the MotJier to pay for tlie Support of the Child. County, ss : "Whereas, E. F., one of the Superintendents of the Poor of said county, [or, Overseer of the Poor of the town of , in said county,] has made application to us, C H. and S. T., two of the Justices of the Peace of said county, complaining that E. B., of _ , in said county, was lately delivered at aforesaid, of a bastard child, which is chargeable [or, likely to become chargeable] to said county [or, town,] and that the said E. B. is possessed of some property in her own right, and desired that we should examine into the matter, and make order for the indemnity of the said county, [or, town ;] And whereas, upon examination into the matter of said application, and upon due proof on oath before us given, it appears to us that the said E. B. was so delivered of such > 1 E. S. 646, § 21. BASTAEDS. 739 child, and is possessed of some property in lier own right, and the said E. B., although present at such examination, not showing any sufficient cause to the contrary, {or, and the said E. B. neglecting to appear before us and show cause, if any she might have, to the contrary, although duly summoned so to appear,] we do therefore hereby order, that the said E. B. pay weekly to said Superintendent, [_&r, to said Overseer,] the sum of , for the support of said child ; [If necessary, in- sert here, unless the said E. B. shall nurse and take care of said child herself.] Given, &c., [as in % 237.] The statute does not seem to require that the mother of the child should be summoned to appear before the Justices when they examine into the matter, but it is proper she should be. If, after the service of such order, subscribed by the said Justices, upon such mother, she refuses or neglects to perform its requirements, she must be committed to the common jail of the county, there to remain, without bail, until she com- plies with such order, unless she executes a bond to the peo- ple of this State, in such sum as the Justices may direct, with good and sufficient sureties, to appear at the then next Court of Sessions in said county, and not to depart the said Court without its leave.' § 24:3. Warrant to commit the Mother. County, ss: To any Constable of the said county. Greeting : Whereas, by an order duly made by us, the undersigned, G. H. and S. T., Justices of the Peace of said county, bearing date the day of instant, in relation to the keeping of a certain bastard child, lately born in said county, of the body of E. B., which is chargeable [or, likely to become chargeable,] to the town of ,[ or, said county,] we di- rected, &c., [as in the order ;] which order was so made upon the application of E. F., Overseer of the Poor of said town, [or, a Superintendent of the Poor of said county ;] and after due notice to the said E. B., to show cause, if any she might have, against the making of such order ; And whereas said order, subscribed by us, has been served upon the said E. B., and she has not executed the bond required by law for her appearance at the next Court of Sessions in said county, and has refused [or, neglected] to perform the requirements of the 1 1E.B.'«46, §22. 740 NBW-TOEK JUSTICE. said order : You are therefore hereby commanded, in the name of the people of the State of New-York, to take the said E. B., and convey her to the common iail of said county, there to remain, without bail, until she shall comply with such order, or execute a bond to the people of this State, in the sum of dollars, with good and sufficient sureties, to ap- pear at the next Court of Sessions in said county, and not to depart the said Court without its leave. Given, &c., [as in % 23T.] § 2-ii. Bond ly the Mother of a Bastard to appear at the next Court of Sessions. Know all men by these presents that we, E. B., E. F., and L. M., of in the county of ,\_asin% 'zZd, to the*, amd then add .•] Whereas E. B., above named, was, by an order made on the day of , 18 , by G. H. and S. T., two of the Justices of the Peace of the said county, required to pay weekly to E. F., one of the Superintendents of the Poor of said county, [or, Overseer of the Poor of the town of in said county,] the sum of dollars, for the support of a bastard child of which she was lately delivered as aforesaid, and which is chargeable [or, likely to_ be become chargeable] to said county, [or, town ; Add here, if it is in the order : un- less she should nurse and take care of said child herself :] Now, therefore, the condition of this obligation is such, that if the said E. B. shall personally be and appear at the next Court of Sessions to be held_ in the said county of , and not depart the said Court without its leave, then this obliga- tion to be void ; otherwise, of force. Sealed, &c., [as in § 236.] E. B. [l. s.] E. F. [l. s.] L. M. [l. s.] The Justices who have made any order of filiation or main- tenance against the father or mother of any bastard, may, from time to time, vary the amount therein directed to be paid, by reducing the same, as circumstances may require.' § 245. Order reducing the Sum to le paid ly the Father or Mother of a Bastard Child. County, ss : To E. F., Overseer of the Poor of the town of , in said coun- ty ; [or, the Superintendents of the Poor of said county :] > 1 E. 8. 646, § 28. BASTAEDS. 741 Whereas, by an order of filiation by ns made, bearing date tlie day of last, we did determine that 0. D. was the father of a certain bastard child, then lately born in aforesaid, of one E. B., and did thereupon direct, among other things, that the said C. D. should pay to yon, the said Overseer, [oi; Superintendents,] for the support of said child, the weekly sum of one dollar, so long as said child should continue chargeable to said town, [or, county ;] And whereas, upon the application of the said C. D., we have this day inquired into the circumstances of the case, and heard the proofs and allegations to us submitted in relation thereto ; and it appearing to us, upon such inquiry, that the circum- stances in relation to said bastard child, render it proper and expedient that the sum required to be paid by the said C D., by our former order, should be reduced as hereinafter ex- pressed ; and inasmuch as you, the said Overseer, [or, Super- intendents,] have shown before us no sufficient reason against such reduction, although appearing before us, [or, notiti^ed to appear before us and show cause, if any you might have :] We do, therefore, reduce the sum required to be paid by the said 0. D., by our former order as aforesaid, to the weekly sum of Given, &c., [as in §237.] An appeal may, in certain cases, be taken to the Court of Sessions of the county, by a person aggrieved, from any order or determination made by any two Justices in bastardy pro- ceedings, and notice of the appeal must be given to the Jus- tices in certain cases.' No Justice of the Peace who has assisted in any judgment, or in making any order appealed from, in proceedings under the bastardy statute, can sit in the Court of Sessions upon the hearing of any appeal made from such judgment or order." The Justices who have taken or received any bond for the appearance of any party at the Sessions, must transmit the same to the clerk of the Court, before the opening thereof, tosrether with the orders of maintenance and sustenance which shall have been made, or true copies thereof signed by the Justices making the same.^ If the woman who is so pregnant shall be married before she is delivered of the child, or if she miscarries so that the 1 1 E. 8. 64T, § 24. 2 id. § 25. 74:2 NEW-TOEK JUSTICE. child is not born alive, or if it appears that she is not so preg- nant, then the person charged as the father of such child must be immediately relieved out of custody, by a warrant under the hands and seals of the Justices by -n-hom he was commit- ted, upon such fact appearing to them.' § 2-i6. Wcwrant to discharge Putative Fatlier. County, ss: To the keeper of the common jail of the said county, greeting : Whereas C. D. was, by a warrant simed by the under- signed, G-. H., and S. T., Justices of the Peace of said county, and dated the day of > 18 , committed to your custody in the said jail, because, having been adjudged by us to be the father of a bastard child, of which E. B. was lately delivered- at in said county, and which was chargeable to said county, he neglected \or, refused] to pay the costs and charges by us certified ; [or, to execute the bond required by the statute ; or hoth, as the case may he ;] And whereas it now appears to us that the said E. E. was married before she was delivered of the said bastard child : You are, therefore, hereby commanded, on the receipt hereof, to dis- charge and relieve the said 0. D. out of your custody in the said jail, unless he be therein detained by you for some other cause than that expressed in the said warrant. Given under our hands and seals, this day of , 18 . G. H., [l. s.] S. T., [L. s.] Justices, &c. The Court of Sessions is authorized, when any order of filiation and maintenance is quashed for any other reason than upon the merits and facts, to bind over the person charged as the reputed father to appear at the next Court of Sessions ; and, in such case, the same proceedings may be had by the Justices for the apprehension of the person charged as the father of a bastard, or of a child likely to be born a bastard, and for the making of an order of filiation and maintenance, and for the commitment of such person in defiiult of execu- ting any bond required by law, as are authorized to be had in the first instance ; and the same proceedings must subse- quently be had, in all respects." 'IE. S. 647, §80. Md. 650, §§39, 40. BASTAEDS. 743 The bonds taken by any Justice or Justices, for the appear- ance of any person charged as the father of a bastard, or of a child likely to be born a bastard, or for the appearance of any mother of a bastard child, at any Court of Sessions, must be signed by the persons binding themselves as principals and sureties, and must be transmitted by the Justice or Justices taking them, or receiving them from any constable, to the said Court, at the opening of the next term thereof If the putative father or mother of any bastard, or of any child likely to be born a bastard, and to become chargeable, shall run away from the place of their ordinary residence, leaving such bastard or child chargeable, or likely to become chargeable to the public, the overseers of the poor of the town, or the superintendents of the poor of the county, where any such bastard shall be born or be likely to be bom, may apply to any two Justices of the Peace of the county where any estate, real or personal, of the putative father or mother of such bastard shall be, for authority to seize and take such real and personal estate. Upon due proof being made to the satisfaction of such Justices, of such facts, they must issue their warrant, in the same manner as is provided by statute in relation to parents absconding and leaving their children chargeable, and the same proceedings, in all respects, must be had thereon." § 247. Warrant to seize the Property of Ahscondmg Father of Bastard. County, ss: To the Overseers of the Poor of the town of , in said county, \or, To the Superintendents of the Poor of said county :] It appearing to us, two of the Justices of the Peace of said county, as well by the representation and application to us made by the said Overseers, [or, the said Superintendents,] as upon due proof of the facts before us given, that C. D. is the father of a bastard child, whereof E. B., of said town, is now pregnant, and which, when bom, is likely to become charge- able to said town, [or, county,] [or, that C. D. is the father of a bastard child lately born in said town, of E. B., and which is chargeable, or likely to become chargeable, to said town 1 1 E, S. 651, § 45. 2 id. 652, § 52 ; id. 615, § 8 ; post, Chap. XIX. 744: NEW-TOEK JUSTICE. [or, county,]] and that said 0. D. has run away from said town, which is the place of his ordinary residence, leaving such bastard child likely to become chargeable [or, charge- able] to the public, and leaving in said county some estate, real or personal : We therefore authorize you, the said Over- seers, [or, the said Superintendents,] of the Poor, to take and seize the goods, chattels, effects, and things in action, and the lands and tenements of the said C. D., wherever the same may be found in said county : And you will, immediately upon such seizure, make an inventory of the property by you taken, and return the same, together with your proceedings, to the next Court of Sessions of said county. Given, &c., [as m § 237.] If the party against whom such warrant issues, returns and supports such bastard or child, or gives security satisfactory to such Justices, to such overseers or superintendents, as the case may be, that such bastard or child shall not become, or thereafter be, chargeable to the town or county, then such warrant must be discharged by an order of such Justices, and the property taken by virtue thereof must be returned to such party.' § 248. Bond to le given ly Pwrty, where Property Tuas teen seised. Know all men by these presents, that we C. D. and E. F., of , in the county of , are held and firmly bound unto E. E. and O'. P., Overseers of the Poor of the town of , in said county, [or, Superintendents of the Poor of said county,] [as in § 233, to the *, and then add .•] "Whereas the said Overseers [or, Superintendents,] lately seized the property of the said 0. D., under a warrant issued by Gr. H. and S. T., two Justices of the Peace of said county, upon due proof to them given that said C. D. was the father of a bastard child, whereof E. B., of said town, was then pregnant, and which, when born, was likely to become charge- able to said town, [or, county,] [or, that said C. D. was the father of a bastard child lately born in said town, of E. B., and which was chargeable, or likely to become chargeable, to said town, [or, county,]] and that said C. D. had run away from said town, which was the place of his ordinary residence, leav- ing such bastard child likely to become chargeable [or, charge- able] to the public, and leaving in said county some estate, real or personal ; And the said 0. D. having returned, and being >1K.S. 6»3,§52; Id. 616, §11. EA.STAEDS. 745 desirous of having Ms property so taken restored to him : Now the condition of this obligation is snch, that if the said bastard child shall not become, or hereafter be, chargeable to said town or county, then this obligation to be void; other- wise, offeree. Sealed, &c., [as in § 236.] C. D. [l. s.J E. F. [l. s.] § 249. Order to discharge the Warrant and to restore the Property. County, ss: To the Overseers of the Poor of the town of , in said county, [or, to the Superintendents of the Poor of said county :] Whereas, by a warrant, issued by us, to you directed, bear- ing date the day of ,18 , you were au- thorized to seize the goods, chattels, effects, and things in ac- tion, and the lands and tenements, of C. D., upon proof that he had run away leaving a bastard child of which he is the father, likely to become chargeable [or, chargeable] to the public ; And whereas the said C. D. has now returned, and supports such bastard child, [or, has given security to you, satisfactory to us, that such bastard child shall not become, or hereafter be, chargeable to said town or county :] "We do, therefore, hereby discharge the said warrant so issued against the said 0. D., and direct the property taken to be restored to him. Given, &c., [as in § 237.] Every constable or other officer, to whom any bond of the putative father of a bastard, or of a child likely to be born a bastard, taken out of the county where the warrant was is- sued, is delivered, who neglects or refuses to deliver the same to the Justice who issued the warrant, within fifteen days af- ter the receipt of the same, will forfeit the sum of twenty-five dollars, to be sued for and recovered by and in the name of any overseers of the poor, or county superintendents, at whose instance the warrant was issued.' No Justice of the Peace is liable to any information, in- dictment, action of trespass, or other action, by reason of his having endorsed any warrant issued for the apprehension of the putative father of a bastard, or of a child likely to be n E. S. 656, § 69. 746 NEW-TOEK JUSTICE. born a bastard, although it should afterwards appear that such warrant was illegally or improperly issued.' If any Justice who has issued any warrant for the apprehension of the father of a bastard, or of a child likely to be bom a bastard, is dead, or has vacated his office, or is absent, on the return of such warrant, the constable who apprehends such father, must carry him before some other Justice of the same town, who has the same authority to proceed therein as the Justice who issued the warrant." Fees. The fees allowed by law for services under the statute en- titled, " Of the support of bastards," are as follows : To Justices. ^'\ A warrant of arrest, nineteen cents ; Endorsing any such warrant issued from another county, twelve and a half cents ; Drawing, certifying and copying a bond or recognizance, twenty-five cents ; A warrant of commitment, nineteen cents ; A summons, twenty-five cents ; Every subpoena, six cents; Taking and certifying the acknowledgment of any instru- ment which is required to be acknowledged before a Justice, twenty-five cents ; For administering an oath or affirmation, twelve and a half cents. To Constables. *~\ Serving a warrant, nineteen cents ; Mileage, going only, for each mile, six cents ; Arresting and committing any person pursuant to any pro- cess, fifty cents ; Mileage, going only, for each mile, six cents. To Witnesses."'] Each witness, for each day, fifty cents ; Mileage, four cents per mile, each way, if the witness re- sides more than three miles from the place of attendance. ilE, S. 666,§ro. Md.647, §40. a Id. § Tl. • Laws of 1840, chop. 8S6, § 8. ' 2 id. 687, §§ 28, 29. BEGGAES AND VAGEANTS. Y47 CHAPTER Y. OF BEGGARS AND VAGRANTS. All idle persons who, not having visible means to maintain. themselves, live without employment ; all persons wandering abroad and lodging in taverns, groceries, beer-houses, out- houses, market-places, sheds, or barns, or in the open air, and not giving a good account of themselves ; all persons wander- ing abroad and begging, or who go about from door to door, or place themselves in the streets, highways, passages, or oth- er public places, to beg or receive alms ; are deemed vagrants.' It is the duty of every constable, or other peace officer, whenever required by any person, to carry such vagrant be- fore a Justice of the Peace of the same town, or before the mayor, recorder, or some one of the aldermen of the city in which such vagrant shall be, for the purpose of examination.' If the Justice or other officer is satisfied, by the confession of the offender, or by competent testimony, that the person brought before him is a vagrant within the description above given, he must make up and sign a record of conviction there- of, which must be filed in the county clerk's office. The Jus- tice or other officer must then, by a warrant under his hand, commit the vagrant, if he is not a notorioiis offender, and is a proper object for such relief, to the county poor-house if there is one, or to the alms-house or poor-house of the town or city, there to be kept at hard labor for any period not exceeding six months. K the offender is an improper person to be sent to the poor house, he must be committed to the bridewell or house of correction of the city or county, if there is one, and if none, to the common jail of the county, for a term not ex- ceeding sixty days, there to be kept, if the Jiistice thinks proper so to direct, upon bread and water only, for such time ' IE. S. 632, §1. 'Id. §2. 748 NEW-TOEK JUSTICE. as shall be directed, not exceeding one half the time for which h'e shall be committed.' § 250. Record of Corwidion of a Vagrant. County, ss : Be it remembered, that E. F. was this day brought before me, the undersigned, a Justice of the Peace of the town of , in said county, atmyofB.ee in said town, upon the charge and accusation that he was found in the said town, an idle person, not having visible means to maintain himself, and living without employment, [or, as the case may ie,] and a va- grant within the intent and meaning of the statute in such case made and provided; and I, the said Justice, being satis- fied, upon due and personal examination of said E. F., and by his confession now before me made, [or, upon competent tes- timony now before me given,] that said charge and accusa- tion are in all respects true, the said E. F. is therefore duly convicted before me of being a vagrant, within the true intent and meaning of said statute ; and it appearing to me that the said E. F. is not a notorious offender, and that he is a proper object for relief, I adjudge and determine that said E. F. be committed to the county poor-house of said county, [or, the alms-house, or, the poor-house of the said town,] for the term of forty days, there to be kept at hard labor ; [or, and it ap- pearing to me that said E. F. is an improper person to be sent to the poor house, I do therefore adjudge and determine, that the saidE. F. be committed to the common jail of said county for the term of thirty days.] Given under my hand and seal, this day of , 18 . G. H., Justice, &c. [l. s.] This record must be filed in the office of the clerk of the county. § 251. Warrant of Commitment. County, ss : To any Constable of said County, greeting : Whereas, E. F. has been this day duly convicted before me, the undersigned, a Justice of the Peace of the town of , in said county, of being a vagrant ; and inasmuch as it appears to me that said E. F. is not a notorious offender, and is a prop- er object for relief, [or, is an improper person to be sent to the poor-house,] I have adjudged that the said E. F. be com- mitted as hereinafter expressed : You are therefore hereby > 1 E. S. 688, § 8. BEGGAES AND TAGEAKTS. 749 commanded, in the name of the people of the State of New- York, to convey the said E. F. to the county poor-house, [or, alms-house, or, town poor-house,] the keeper whereof is re- quired to keep him therein, at hard labor, for the term of for- ty days; [or, to convey the said E. F. to the common jail of said county, the keeper whereof is required to detain him in safe custody therein, for the term of thirty days.] Given, &c., [as in § 250.] A subsequent statute provides, that every person who, hav- ing his face painted, discolored, covered or concealed, or be- ing otherwise disguised in a manner calculated to prevent him from being identified, shall appear in any road or public highway, or in any field, lot, woods or enclosure, may be pur- sued and arrested in the manner hereinafter provided, and, upon being brought before any Justice of the Peace of the same county where he is arrested, shall, if not giving a good account of himself, be deemed a vagrant within the purview of the statute, and shall, upon conviction as therein provided, be committed to the jail of the county where he shall be found, for a term not exceeding six months.' Any magistrate to whom complaint is made that any per- son has appeared in the public highway, or in any lot, field, woods, or enclosure, with his face so painted, discolored, cov- ered or concealed, or being otherwise disguised, as aforesaid, may, in his discretion, by warrant under his hand, depute and empower any elector of the county, to arrest, seize, con- fine, and bring such person before such magistrate, to answer the complaint. If the name of the person charged is not known, it will be sufficient to describe him by some fictitious name.' § 252. Warrant to arrest a Person in Disguise. lown ' t ss: To [amy elector of the county.] A. B., of the town of , in said county, having this day made complaint, on oath, before me, the undersigned, a Justice of the Peace of the said town, that E. F., &c., [as the complaint may he :] Tou are therefore hereby commanded, in the name of the People of the State of New- York, forthwith to 1 Laws of 1845, chap. 8, § 1 ' Id. § 9, 750 NBW-TOEK JU8TICB. arrest the said E. F., and bring him before me, the said Jus- tice, at my office, in , aforesaid, to answer to the said complaint, and to be dealt with in the premises, according to law. "Witness my hand, this day of , 18 . G. H., Justice of the Peace. If any child is found begging for alms, or soliciting charity from door to door, or in any street, highway, or public place of any city or town, any Justice of the Peace, on complaint, and proof thereof, must commit such child to the county poor- house, if there is one, or to the alms-house, or other place pro- vided for the support of the poor, there to be detained, kept, employed and instructed, in such useful labor as the child may be able to perform, until discharged therefrom by the county superintendents of the poor, or bound out as an ap- prentice by them, or by the commissioners of the alms-house, or overseers of the poor.' § 253. Wa/rrant to commit a Child to the County Poor- Rouse. County, ss: To any Constable of said County, greeting : Whereas, complaint on oath, and due proof, have this day been made to me, one of the Justices of the Peace of said coun- ty, that a male, [or, female,] child, by the name of A. B.,has been found in the town, [or, city,] of , in said county, beg- ging for alms : You are therefore hereby commanded, in the name of the People of the State of ISTew-Tork, to convey the said child to the pooi'-house in said county, [or, town ; or^ the alms-house of said city,] the keeper whereof is required to de- tain, keep, employ and instruct, said child, in such useful la- bor as he, [or, she,] may be able to perform, until discharged therefrom by the County Superintendents of the Poor, [w, by the Commissioners of such alms-house, or., by the Overseers of the Poor,] or bound out as an apprentice by them. Witness, &c., \_as in § 252.] Fees. The fees allowed by law for services under this statute are as follows : To Justices.'l A warrant of arrest, nineteen cents; 1 1 E, S. 688, § 4. « 2 W, 687, §§ 28, 29. DISOEDERLY PEESONS. Y51 A record of conviction, thirty-seven and a half cents ; A warrant of commitment, nineteen cents ; For administering an oath or aflSrmation, twelve and a half cents ; Every subpoena, six cents. To Constables. ^'\ Serving a warrant, nineteen cents ; Mileage, going only, for each mile, six cents ; Arresting and committing any person pursuant to any pro- cess, fifty cents ; Mileage, going only, for each mile, six cents. To Witnesses."] Each witness, fifty cents a day, and four cents a mile each way, if he resides more than three miles from the place of attendance. CHAPTER YI. OF DISOEDERLY PERSONS. All persons who threaten to run away and leave their wives or children a burthen on the public ; all persons pre- tending to tell fortunes, or where lost and stolen goods may be found ; all common prostitutes ; all keepers of bawdy houses, or houses for the resort of prostitutes, drunkards, tip- plers, gamesters, or other disorderly persons ; all persons who have no visible profession or calling to maintain themselves by, but who do, for the most part, support themselves by gaming; all jugglers, common showmen and mountebanks, who exhibit or perform for profit any puppet show, wire or rope dance, or other idle shows, acts or feats ; all persons who keep in any public highway or place, or in any place where spirituous liquors are sold, any keno table, wheel of fortune, thimbles, or other table, box, machine or device for the pur- 's b. s. 64T, §40. a Laws of 1840, ohap. 886, § 8. 752 NEW-TOKK JUSTICE. pose of gaming ; all persons who go about with such table, wheel, or other machine or device, exhibiting tricks or gaming therewith ; all persons who play in public streets or highways with cards, dice, or any other instrument or device for gaming ; are deemed disorderly persons." When complaint is made on oath to any Justice of the Peace against any person as being disorderly, he must issue his warrant for the apprehension of the offender, and cause him or her to be brought before him for examination." §254. Warrant to a/rrest a Disorderly Person. County, ss : To any Constable of said county, greeting : Complaint on oath having been this day made before me, Gr. H., a Justice of the Peace of said county, that C. D., of , in said county, is a disorderly person within the mean- ing of the statute in such case made and provided, for that [here insert the charge .■] Tou are therefore hereby command- ed, in the name of the people of the State of New- York, forthwith to take the said C. D., and bring h''m before me at my oflSce in the of , for examination as a disor- derly person. Given under my hand this day of , 18 . G. H., Justice, &c. If it appears, by the confession of the offender, or by com- petent testimony, that he or she is a disorderly person, the Justice may require of the offender sufficient sureties for his or her good behavior for the space of one year.' The con- fession here spoken of, on which the Justice may act, means a plea of guilty, or some acknowledgment tantamount thereto ; not an admission deduced by the magistrate argumentatively." § 255. Recognizance of a Disorderly Person. County, ss : We, C. D., E. F., and L. M., of , in said coimty, ac- knowledge ourselves indebted to the people of the State of New- York ; that is to say, the said C. D. in the sum of dollars, and the said E. F., and L. M., each in the sum of dollars, to be respectively made and levied of our several goods and chattels, lands and tenements, to the use > 1 R. S.63S, § 1. • id. a Id. § 2, « 4 Barbour, 164. c. D. [L. S.' E. F. [L. s. L. M. [L. s._ DISOEDEELT PEKSONS. 753 of the said people, if default sliall be made in the following condition : The condition of this recognizance is such, that if the said C. D. shall be and continue of good behavioi* towards the people of the State of New-York, for the space of one year from and aifter this day, then such recognizance to be void ; otherwise, of force. Taken, subscribed, and acknowledged, ) before me, this day of 18 . j G. H., Justice, &c This recognizance remains with the magistrate taking it.' In default of such sureties being found, the Justice must make up and sign a record of conviction of the offender as a disorderly person, specifying generally the nature and cir- cumstances of the offence, and must, by warrant under his hand, commit the offender to the common jail of the city or county, there to remain until such sureties be found, or he be discharged according to law." § 256. Record of Conviction of a Disorderly Person. Coimty, ss : Whereas complaint on oath was made before me, G. ll., a Justice of the Peace of said county, that C. D. was a disordei-ly person, for that [here insert the charge ;] And whereas the said 0. D. was this day brought before me by a warrant duly issued under my hand, and examined con- cerning the offence charged in the said complaint ; and, it appearing to me, by competent testimony, [or, by the con- fession of the said C. D.,] that the said C. D. is guilty of the said offence, and is a disorderly person : I do thereupon con- vict him, the said C. D., of being a disorderly person, and do require the said C. D. to enter into a recognizance, with two sulficient sureties, each in the sum of dollars, for his good behavior for the space of one year ; and he, the said C. D., now refusing \or, failing] to enter into such recognizance and to find such sureties, I, therefore, in compliance with tne statute, make up and sign this record of conviction, and do determine and adjudge that the said 0. D. be committed to the common jail of the county of , there to remain un- til such sureties be found, or he be discharged according to law. Witness my hand this day of , 18 . G. H., Justice of the Peace. 1 Sandford, 191. > 1 K. 8, 49 754 NEW-TOEK JUSTICE. This record of convictioa must be made up by the magis- trate, and signed by him, and filed in the county clerk's office, before the warrant of commitment can be issued/ § 267'. Wa/rrant to Commit a Disorderly Person. County, ss : To any constable of said county, and to the keeper of the common jail of the said county. Greeting: Whereas C. D. was this day duly convicted before me, G. H., a Justice of the Peace of the said county, upon complaint, on oath, of K. D., and other competent testimony, of being a disorderly person ; And whereas, upon such conviction, I did require the said C. D. to enter into a recognizance, with two sufficient sureties, each in the sum of dollars, for his good behavior for the space of one year ; And whereas the said C. D. made default in finding such sureties, and I the said Justice made up and signed, and filed in the county clerk's office, a record of the said conviction : You, the said constable, are therefore hereby required and commanded forthwith to convey and deliver the said 0. D. into the custody of the said keeper, and you the said keeper are hereby required to receive the said C. I), into your custody in the said jail, and him there safely keep, until he shall find such sureties, or be discharged according to law. Given under my hand this day of , 18 . G. H., Justice of the Peace. A warrant of commitment under this statute is valid to protect the officer, if it describes the ofi'ence, and the convic- tion and sentence, although it does not recite the facts proved." It is a breach of any recognizance given as aforesaid, for any person so bound on account of being a gamester, to play Or bet, at any one time or sitting, for any money, or other thing, exceeding the sum or value of two dollars and fifty cents. In all other cases, the committing any of the acts which constituted the person so bound a disorderly person, is a breach of the condition of such recognizance.' If any breach of such recognizance happens, the recognizance must be prosecuted at the instance of any overseer or county su- perintendent of the poor, or Justice of the Peace ; and the > 4 Barbour, 164 • 1 K. S, 688, § 8. » id 81. DISOEDEELT PEES0N8. Y55 penalty, when collected, must be paid into the county treasury, for the benefit of the poor of such county.' Upon a recovery upon any recognizance, the Court before which the recovery is had, may, in its discretion, either require new sureties for good behavior to be given, or may commit the offender to the common jail of the city or county, for any term not exceeding six calendar months.' § 258. Wa/rrant to commit a Disorderly Person after a Recovery upon his Recognizance. County, ss : To any constable of said county, and to the keeper of the common jail of the said county, greet- Whereas, on the day of , 18 , a recognizance, with two sureties, was entered into by C. I)., who was com- plained of on oath before me as a disorderly person, condi- tioned for the good behavior of the said C. D. towards the people of the State of New- York, for the space of one year from the date thereof; And whereas a recovery has this day been had before me, in an action upon the said recognizance, for a breach thereof, in that \]iere state the hreach^ of which K. D., one of the superintendents of the poor of the said county, complained : These are, therefore, to command you, the said constable, forthwith to convey and deliver the said C. D. into the custody of the said keeper ; And you the said keeper are hereby required to receive the said C. D. into your custody in the said jail, and him there safely keep for the term of {not exceeding six months^ or until he shall be dis- charged according to law. Given under my hand this day of , 18 . G. H., Justice of the Peace. Any person committed to the common jail for not finding sureties for good behavior, may be discharged by any two Justices of the Peace of the county, upon giving such sure- ties for good behavior as were originally required of him.^ Under this statute, the magistrate before whom the convic- tion takes place, has no authority, acting singly, to take a recognizance for good behavior, after the record of conviction is filed.* 1 1 E. 8. 688, § i. ' Id. § 6. » id. 639, §5. «23WendeD,«;5Barionr, 205U 756 NBW-TOEK JirSTICE. § 259. Discharge of a Disorderly Person, to he granted h/ amy two Justices. County, ss : To the Keeper of the Common Jail of said County, greeting : Whereas, C. D. was lately comniitted to your custody in said jail, by the warrant of G. H., a Justice of the Peace of the said county, upon the conviction of the said C. D., before the said Justice, of being a disorderly person, and upon the failure of the said C. D. to procure sureties for his good be- havior, according to law ; And whereas the said C. D. has fiven such sureties as were originally required by the said ustice from him : ITow, therefore, we, being two of the Jus- tices of the Peace of said county, do hereby require you to discharge the said C. D. out of your custody, under his com- mitment as aforesaid. Given under our hands, this day of ,18 . J. H. B., H. T. C, Justices of the Peace. Fees. The fees allowed by law for services under this statute are as follows : To Justices.^'] A warrant of arrest, nineteen cents ; Every subpoena, six cents ; Administering an oath or affirmation, twelve and a half cents ; Drawing, copying and certifying a recognizance, twenty -five cents ; Taking the acknowledgment of any instrument which is required to be acknowledged before a Justice, twenty-five cents ; A warrant of commitment, nineteen cents. To Constables !''\ Serving a warrant, nineteen cents ; Mileage, going only, for each mile, six cents ; Arresting and committing any person, pursuant to process, fifty cents; Mileage, going only, for each mile, six cents. To Witnesses."'] Each witness, fifty cents a day, and foui- cents a mile each way, if he resides more than three miles from the place of attendance. 1 2 E. S. 687, §§ 28, 29. " Laws of 1840, chap. 886, § 8. " Id. 64T, § «. DISTUEBANCE OF BELIGI0U9 MEETINGS, &G. 757 CHAPTER Yll. OF THE DISTURBANCE OF RELIGIOUS MEETINGS, THE OBSERVANCE OF SUNDAY, AND PROFANE CURSING AND SWEARING. Befoee proceeding to consider in detail the articles of the Eevised Statutes relating to the Disturbance of Eeligious Meetings, the Observance of Sunday, and Profane Cursing and Swearing, it is proper to state the general provisions ■which are applicable to all of them. The three articles fol- low each other in order in the statute, and to them are sub- joined the general provisions alluded to. It will, however, ensure a better understanding of the detail of the proceedings under the three articles, to invert the order, and consider first the general provisions. Whenever a complaint is made to a Justice of the Peace, of a violation of the provisions of either of the three articles above referred to, or when any of such violations happens in the presence of the Justice, he must cause the offender to be brought before him, and proceed summarily to inquire into the facts.' It will be seen hereafter, that, by an act passed subsequently to the Revised Statutes, the defendant, in pro- ceedings under the article relating to the Disturbance of Pe- ligious Meetings, has the right to demand a trial by jury. With this exception, the injunction of the statute that the Justice shall proceed summarily is imperative. The statute does not prescribe the process by which the offender is to be brought before the Justice, but it must obvi- ously be by warrant, that being the process which the statute authorizes in analogous cases. §260. Warrant. County, ss : To any constable of said county, greet- ing : Whereas complaint has been this day made on oath 1 1 E. S. 6T7, § T3. 758 NEW-YOEK JUSTICE. tefore me by A. B., that [state the offence /] Tou are therefore hereby commanded, in the name of the People of the State of ISTew-York, forthwith to arrest the said \name of the offen- der,'] and brinff him before me, at my ofiBce, at , in said county, to be dealt with according to law. Given under my hand, this day of , 18 . J. H. B., Justice of the Peace. It is not indispensable that the warrant should state upon its face the offence charged, although it ought to state the substance of the complaint.' If the person charged is found guilty, a record of his con- viction must be made up, and signed by the Justice, before issuing any process to enforce the same.' The limits of this work will not permit a Form to be given for each case contemplated by the statute, nor is that neces- sary. All that is required, or can be given, is an outline or skeleton Form, which can be easily adapted to the circum- stances of any particular case. § 261. Record of Conviction. County, ss : On this day of , 18 , A. B. personally appeared before me, J. H. B., a Justice of the Peace in and for said county, and complained on oath that C. D. [here insert the offence /] Whereupon I issued my war- rant, by virtue of which the said C. D. was arrested and brought before me, [and the said C. D. having demanded a trial by jury,] I proceeded, in the presence of the said C. D., [and with the jury for that purpose duly summoned, empau- nelled, and sworn,] to inquire [summarily] into the facts ; And thereupon the said C. D. was convicted before me, the said Justice, [by the verdict of the jury aforesaid,] of the said of- fence charged ; Whereupon I did adjudge and determine that the said C. D. forfeit, by reason of the said offence, the sum of dollars, for the use of the poor of said county ; and the costs of the said conviction were fixed by me at the sum of dollars. In witness whereof, I have hereunto set my hand, the day and year first above written. J. II. B., Justice of the Peace. The conviction is final, and cannot be re-examined upon the merits in any Court.' 1 9 Wendell, 62. ' id. 2 1 E. 8. 677, § 78. DISTTIBBANCE OF EELIGIOUS MEETINGS, &0. 759 No prosecution can be maintained for any violation of ei- ther of the three articles before referred to, unless the same be instituted by the actual issuing of process to apprehend the oifender, or by his actual appearance to answer the com- plaint, within twenty days next after the offence is committed.' Upon a conviction for either of these three offences, where no other special provision is made for the collection of the penalties and costs incurred, the Justice before whom the same is had, may issue an execution to any constable of the county, commanding him to levy the penalties, and the costs of the conviction, by distress and sale of the goods and chattels of the offender, and, in case sufficient goods and chattels cannot be found, then to commit such offender to the common jail of the county, for such time as shall be specified in the execu- tion, not less than one nor more than three days." § 2G2. J^i'eaiHon to collect Penalty and Costs. County, ss : To any Constable of said county, greet- ing: Whereas C. D. has been this day convicted before me, J. H. B., a Justice of the Peace of said county, of [Jiere state the offence^ for v^hich he was adjudged by me to forfeit the sum of dollars ; And whereas the costs of his convic- tion were fixed by me at dollars, and I have made up and signed a record of his conviction : You are, therefore, hereby commanded to levy the amount so forfeited, and the costs of the said conviction, by distress and sale of the goods and chattels of the said C. D.; and, in case sufficient goods and chattels cannot be found, then to commit the said C. D. to the common jail of the said county, for the term of [not less than one nor more than three days!\ Given under my hand and seal, this day of , 18 . J._ H. B., [l. s.] Justice of the Peace. Within thirty days after any such conviction is had, the Justice making the same, must cause to be filed in the office of the clerk of the county a certificate of such conviction, briefly stating the offence charged, the conviction and judg- ment thereon, and, if any fine has been collected, the amount thereof, and to whom paid.' > 1 E. S. 677, § 74. 3 id. § T6. " id. § 76. 760 NEW-TOEK JUSTICE. § 263. Certificate of Conviotion. Connty, ss : I, J. H. B., a Justice of the Peace of the said county, do hereby certify, that on the day of ,18 , C. D. was convicted before me of [state the ofence h-iefly^ and that he was thereupon adjudged by me to forfeit the sum of dollars, and that the costs of such conviction were fixed by me at dollars. I further cer- tify that the said 0. D. paid the amount of the said forfeiture and costs to me, \or, that the said C. D., not having paid the amount of the said forfeiture and costs, I issued an execution therefor, pursuant to the statute, specifying therein the term of commitment of the said offender at days.] Witness my hand, this day of , 18 . J. II. E., Justice of the Peace. 1. THE DISTURBANCE OF RELIGIOUS MEETIIfGS. It is provided by statute as follows : "No person shall wil- fully disturb, interrupt, or disquiet any assemblage of peojDle met for religious worship, by profane discourse, by rude and indecent behavior, or by making a noise, either within the place of worship, or so near it as to disturb the order and so- lemnity of the meeting; nor shall any person, within two miles of the place where any religious society shall be actu- ally assembled for religious worship, expose to sale or gift, any ardent or distilled liquors, or keep open any huckster- shop in any other place, inn, store, or grocery, other than such as shall have been duly licensed, and in which such per- son shall have usually resided or carried on business ; nor shall any person, within the distance aforesaid, exhibit any shows or plays, unless the same shall have been duly licensed by the proper authority ; nor shall any person, within the distance aforesaid, promote, aid, or be engaged in, any racing of any animals, or in any gaming of any description ; nor shall any person obstruct the free passage of any highway to any place of public worship, within the distance aforesaid.' Whoever shall violate any of the foregoing provisions, may be convicted summarily before any Justice of the Peace of the county, or any mayor, recorder, alderman, or other magis- trate of any city, where the offence shall be comDiitted, and, 'IE. S. 674 §64. DISTUEBAITCE OF EELIGIOTTS MEETINGS. 761 on siTcTi conviction, shall forfeit a sum not exceeding twenty- five dollars, for the benefit of the poor of the county." ' A person arrested by warrant on a charge of having viola- ted the section of the statute above quoted, cannot be taken by the arresting officer before any magistrate other than the one who issued the process. The provisions of the stat- ute, authorizing persons arrested under a warrant, to be brought before the nearest magistrate, &c., apply only, it seeins, to cases where the accused may be required to enter into a rec- ognizance to appear at a Court of criminal jurisdiction, or may be committed to jail.' It is the duty of all peace officers, present at the meeting of any assembly for religious worship, which shall be inter- rupted or disturbed in the manner prohibited by the statute, to apprehend tjie offender, and take him before some Justice of the Peace or other magistrate authorized to convict as aforesaid, to be proceeded against according to law." Justices of the Peace, within their jurisdiction, upon their own view of any person offending against the provisions of this statute, may order the offender into the custody of any peace officer, or of any official member of the church or soci- ety so assembled and disturbed, for safe keeping, until he shall be let to bail, or a trial for such offence be had.* And the Justice can do this, without waiting until he has issued a warrant.' If any person convicted of any of the above offences, does not immediately pay the penalty incurred, with the costs of the conviction, or give security, to the satisfaction of the officer before whom the conviction is had, for the payment of the said penalty and costs within twenty days thereafter, he must be committed by warrant to the common jail of the county, until the same shall be paid, or for such term, not exceeding thirty days, as shall be specified in the warrant.' Where a person is convicted before a Justice of one of the Ward Courts of the city of ]S"ew-Tork, of disturbing a religious congregation assembled for divine worship, and fined, security 1 1 E. 8. 674, § 65. * id. § 67. i> IT "Wendell, 211. ' S Wendell, 258. 3 1 E. S. 676, § 66. '1 E. 8. 675, § 68. 762 HEW.-TOEK JUSTICE. given by him for the payment of the fine, in the name of the clerk of the Court in which the conviction is had, is valid ; it need not be in the name of the people.' The person complained of for a violation of this statute may, before the Court proceeds to investigate the merits of the cause, demand a trial by jury. "When such a demand is made, it is the duty of the Court to issue a veni/re to some constable of the county, or marshal of the city, where the offence is to be tried, commanding him to summon the same number of jurors, and in the same manner, as is provided for the sum- moning of jurors before Courts of Special Sessions.'' The Court must proceed to empannel a jury for the trial of the cause, in the same manner, and subject to all the rules and regulations prescribed in the act providing for trials by jury in Courts of Special Sessions.' If the party is convicted, he must pay all the costs consequent upon the trial by jury; which costs are the same as are allowed by law in civil cases.' § 264. Security for the payment of Penalty am,d Costs upon Corvoiotion for disturbing a Religious Meeting. Whereas C. D. has been this day convicted before G. H., a Justice of the Peace of county, of [here state the cf- fence,'] and, upon such conviction, has been adjudged by the said Justice to forfeit the sum of dollars, and to pay the costs of the said conviction, which were fixed by the said Justice at : ISTow, therefore, we, the said C. D., and E. F., as his surety, do agree to pay the said sum forfeited and the said costs, within twenty days from the date hereof, to the Superintendents of the Poor of the said county of Dated the day of , 18 . C. D. [l. s.] E. F. [l. s.] § 265. Warrant of Commitment. County, ss: To any Constable of said County, or to the Keeper of the common jail of the said County, greeting : Whereas C. D. has this day been convicted before me, G. H., a Justice of the Peace of said county, of [here state the of- fence;] And whereas, upon said conviction, I did adjudge that > 19 Wendoll, 646. ' Laws of 1834, chap. 78, § 1, » Ante, pp. 661, 652. * id. § 2 ; aute, p, 468. OBSEEVANCE OF SUNDAY. 763 tlie said C. D. should forfeit the sum of dollars, and did iix the costs of the said conviction at the sum of dollars ; And whereas the said C. D. has neither paid the said penalty and costs, nor given the security for the payment thereof required by law, and I have made up and signed a record of his conviction : These are, therefore, to command you the said Constable forthwith to convey and deliver the said C. D. into the custody of the said Keeper, and you the said Keeper are hereby required to receive the said C. I), into the said jail, and him there safely keep, until he shall pay the said penalty and costs. But he is not to be imprisoned here- under longer than the term of [not exceeding thirty'] days. G. H., [L. s.J Justice of the Peace. 2. THE OBSEEVANCE OF SUNDAY. The statute provides, that no writ, process, warrant, order, judgment, decree, or other proceeding, of any Court or officer of justice, shall be served or executed upon the first day of the week, called Sunday, except in cases of breach of the peace, or apprehended breach of the peace, or for the apprehension of persons charged with crimes and misdemeanors, or the viola- tion of any of the provisions of the articles in regard to the Disturbance of Keligious Meetings and the Observance of Sunday, and except where such service is specially authorized by law. The service of any such process or proceeding, in any other case, is utterly void, and subjects the party offend- ing to damages at the suit of the party aggrieved.' The statute further provides, that there shall be no shoot- ing, hunting, fishing, sporting, playing, horse-racing, gaming, frequenting of tippling-houses, or any unlawful exercises or pastimes, on the first day of the week called Sunday ; nor shall any person travel on that day, unless in cases of charity or ne- cessity, or in going to or returning from some church or place of worship, within the distance of twenty miles, or in going for medical aid or for medicines and returning, or in visiting the sick and returning, or in carrying the mail of the United States, or in going express by order of some public officer, or in removing his family and household furniture when such re- moval was commenced on some other day ; nor shall there be > 1 E. S. 675, § 69. 764: iraW-TOEK JTSTICE. any servile laboring or working on that day, excepting works of necessity and charity, unless done by some person who uniformly keeps the last day of the week, called Saturday, as holy time, and does not labor or work on that day, and whose labor shall not disturb other persons in their observance of the first day of the week. Every person, being of the age of four- teen years, offending against the foregoing provisions, forfeits one dollar for each offence.' It is further provided, that no person shall expose for sale any wares, merchandize, fruit, herbs, goods, or chattels, on Sunday, except meats, milk and fish, which may be sold at any time before nine o'clock in the morning ; and that the articles so exposed for sale shall be forfeited to the use of the poor, and may be seized by virtue of a warrant for that pur- pose, which any Justice of the Peace is authorized to issue, upon a conviction of the offender. "When seized, they are to be sold, on one day's notice being given, and the proceeds paid to the overseers of the poor of the town or city." § 266. Warrant to seize the Goods forfeited. County, ss : To any constable of said county, greeting : "Whereas C. D. has this day been duly convicted before me G. H., a Justice of the Peace of the said county, of \_state the offence, and the articles exposed for sale,] contrary to the stat- ute in such case made and provided; And whereas the said C. D. was adjudged by me to forfeit to the use of the poor the said articles so exposed, and the costs of said conviction were fixed by me at dollars, and I have made up and signed a record of his conviction : Tou are, therefore, here- by commanded to take and seize each and all of the said ar- ticles BO exposed for sale, and to sell the same at public auc- tion, after having given one day's notice of the time and place of such sale, and have you the moneys arising from such sale before me at my oifice in said town {or, city,] without delay. Witness my hand, this day of ,18 G. H., Justice of the Peace. It is also provided, that no keeper of an inn or tavern, or of any ale-house, or porter-house, or grocery, nor any other person authorized to retail strong or spirituous liqiiors, shall, 1 1 E. S. 676, § TO. ' ii § 71. PEOFAITE CUKSING AND SWEAEING. T65 on Sunday, sell or dispose of any ale, porter, strong or spirit- uous liquors, excepting to lodgers in such inns or taverns, or to persons actually travelling on that day in the cases allowed by law. Every person offending against the foregoing provis- ions, and being thereof duly convicted, forfeits the sum of two dollars and fifty cents.' 3. PROFANE CURSING AND SWEARING. The statute provides, that every person who shall profanely curse or swear, shall forfeit one dollar for every ofi'ence. If the oilence is committed in the presence and hearing of a Justice of the Peace, while holding a Court, he must imme- diately, and without any other proof, convict the offender. And if, at any other time, the offence is committed in the pres- ence and hearing of the Justice, under such circumstances as, in his opinion, to amount to a gross violation of public decency, he may, in his discretion, convict the offender, without fur- ther proof. If the person convicted does not forthwith pay the penalties incurred, with the costs, or give security for their payment within six days, he is to be committed by warrant to the common j ail of the county for every offence, or for any number of offences whereof he was convicted at one and the same time, for not less than one day nor more than three days, there to be confined ii^ a,TOom separate from all other prisoners." /^ '-'*'' ■' '"' "- •-''' § 267. Warraml of Arrest for Profanity. County, ss : To any constable of said county, greeting : Whereas complaint on oath has this day been made by C. D., before me, J. PI. B., a Justice of the Peace of the said county, that \_state the complaint .■] You are therefore hereby commanded, in the name of the People of the State of New- York, forthwith to take the said \name of offender'\ and bring him before me at my office at , in said county, there to be dealt with according to law. Given under my hand and seal, this day of , 18 . J. H. P., [l. s.] Justice of the Peace. 1 1 E. S. 6T6, § 72. » id. 674, §§ 61, 62, 68. 76Q KEW-TOEK JTTSTICE. The above Form can be easily varied to suit a case where the profanity occurs in the presence of the Justice. § 268. /Security for the Payment of the Penalty and Costs. County, ss: Whereas A. B. has been this day convicted before J. H. B., a Justice of the Peace of the town of , in said county, of profane cursing and swearing, for which he was adjudged by said Justice to forfeit one dollar ; And whereas the said Justice has fixed the costs of said conviction at dollars : Now therefore we, the said A. B., and C. D., as his surety, both of , in said county, do hereby agree to pay the said sum forfeited and the said costs, within six days from the date hereof. "Witness our hands and seals, this day of , 18 . A. B. [l. s.] C. D. [L. s.] § 269. Warrant of Commitment u^on Conviction for Pro- fanity. County, ss : To any constable of the said county, and to the keeper of the common jail of the said county, greeting : Whereas A. B. hasbeen this day convicted before me, of pro- fane cursing and swearing, for which offence he was adjudged by me to forfeit the sum of one dollar ; And whereas the costs of said conviction were fixed by me at dollars ; And whereas the said A. B. has neither paid the said penalty and costs, nor given the security for the payment thereof required by the statute, and I have made i;p and signed a record of his conviction : These are, therefore, to command you, the said constable, forthwith to take the said A. B., and deliver him into the custody of the keeper of the said jail ; and you the said keeper are hereby required to receive the said A. B. into your custody in said jail, and him there safely keep, in a room separate from all other prisoners, for the term of [not less than one nor more than three^ days. J. H. B., [l. s.] Justice of the Peace. Fees. In all prosecutions for any of the offences specified in the said three articles, the like fees are allowed as in civil suits before Justices of the Peace ;' but they can in no case ex- » Ante, p. 4T2. DOGS. 76Y ceed five dollars, and are to be paid by the party offending, over and above the penalties incurred. If the offender is im- prisoned, no charges or fees are allowed.^ The following services, however, do not appear to be provi- ded for by the fee bill in civil suits : To Justices.''] Drawing and signing a record of convic- tion, thirty-seven and a half cents ; A warrant of commitment, nineteen cents. To Constables.^'} Arresting and committing any person pursuant to any process, fifty cents ; Mileage, going only, for each mile, six cents. CHAPTER VIIL OF DOGS. If any dog, says the statute, shall attack any person peace- ably travelling on any highway, or any horse in a carriage, or upon which any person shall be mounted, and complaint thereof be made to a Justice of the Peace, such Justice shall inquire into the complaint, and, if satisfied of its truth, and that such dog is dangerous, he shall order the owner or pos- sessor of such dog to kill him immediately.* § 270. Order to kill a dangerous Dog. County, ) Town of , r^- To A. B. Complaint having been made to me, J. H. B., a Justice of the Peace of said county, that a dog of which you are the owner or possessor is a dangerous dog, and that, on the day of ,18 , he attacked one C. D., while travelling peaceably on the highway from to : I, hav- 1 1 E. 8. 67T, g 7T. ' Id. 647, § 40. » 2 id. 68T, §§ 28, 29. * 1 Id. T05, § 16. 768 NEW-TOEK JUSTICE. ing inquired into the said complaint, and being salnsfied of its truth, do hereby order you, immediately upon the receipt of this notice, to kill the said dog. J. H. B., Justice of the Peace. If the owner or possessor of any dog refuses or neglects to kill him within forty-eight hours after having received such order, he forfeits the sum of two dollars and fifty cents ; and the further sum of one dollar and twenty-five cents for every forty-eight hours thereafter, until the dog is killed.' When a complaint is made to any supervisor of a town, that any penalties imposed by this section of the statute have been incurred, he must commence a suit for the recovery thereof in his name of office, and prosecute the same with due diligence^,^ and the moneys recovered must be paid by him to the county .treasurer.' Every person- in possession of any dog, or who suffers any dog to remain about his house for the space of twenty days previous to the assessment of any tax, or previous to any in- jury, chasing or worrying of sheep, or any such attack made by a dog, is deemed the owner of such dog for the foregoing purposes.' Fees. The law does not appear to have provided any fees for the services of Justices under this statute, except where a suit is brought for a penalty, and then the fees are the same as in civil actions.* CHAPTEE IX. OF DEAINING SWAMPS. Ant person owning or possessing any swamps, bog, mead- ow, or other low land within this State, who desires to drain. 1 1 E. 8. T06, § 18. " W. § 20. s i(L 1 19, • W. *S1, § 2 ; snte, p. 4T2, DEAINING SWAMPS. Y69 sucli land, and who deems it necessary, in order thereto, that a ditch or ditches should be opened through lands belonging to another person or other persons, in case the owner of any such lands refuses to permit the opening of such ditch or ditches through the same, may apply to any Justice of the Peace residing in the town where such lands lie, for such sum- mons as is hereinafter specified.' The Justice to whom such application is made, must issue a summons, directed to any constable of the said town, requiring him to summon twelve reputable freeholders, who are not interested in the said lands, nor in any of them, nor in anywise of kin to either of the parties, to be and appear on the premises at a certain time to be specified in the summons, not less than ten, nor more than twenty days from the date thereof. The summons must also direct the constable to give at least six days' notice to the owner of such lands, of the time at which such jury is to appear.' § 271. Summons. Town of ' I • County, j To any Constable of said county. Greeting : The people of the State of New- York reqiiire you to summon twelve reputable freeholders, who are not interested in the following described lands of A. B., [here describe the lands to he drained^ and who are not interested in the following de- scribed lands of C. D., \here describe the lamds through which the ditch is to be opened,] and who are not in anywise of kin to either the said A. B. or C. D., to be and appear on the said lands of the said C. D., on the day of , 18 [not less than ten nor more tlia/n twenty days from the date of the summons^ at o'clock in the noon, to make a jury for determining upon the matter of opening a ditch through the lands of the said C. D. You are also hereby further re- quired to give six days' notice to the said C. D. of the time at which such jury is to appear. And you are also required to make a list of the persons summoned, which you will certify and annex to this summons, and make return thereof to me, and you will also further return whether or not you have given to the said C. D. the notice herein required. Witness my hand, this day of , 18 . J. H. B., Justice of the Peace. » Laws oflSSl, chap. 345, » 2 E. S. 648, § 2. 50 770 NEW-TOEK JUSTIOE. The constable to wlioiii the summons is delivered, must execute the same, bj summoning the jurors, in the same manner as upon a venire issued in a cause pending before a Justice of the Peace ; and he must, in like manner, make a return thereof, and of the fact of his having given the notice therein required." The Justice must attend at the time and place specified in the summons, and, if it appears that due notice has been given, as required in the summons, and if twelve freeholders, as above specified, then and there appear, he must administer to each of them an oath or affirmation, well and truly to ex- amine and certify in regard to the benefits or damages which will result from the opening of the ditch or ditches." § 272. Oath to he administered to the Jurors. You do solemnly swear [or, affirm] that you will well and truly examine and certify in regard to the benefits or dama- ges which will result from the opening of a ditch [or, ditches] through the lands of 0. D.; so help you God. The person applying to have the ditch or ditches opened, must then deliver to the jury a map of the land through which the same is or are to be opened, on which the plan, length, width and depth of the ditch or ditches must be particularly designated. The jury must person- ally examine the premises, and hear any reasons that may be offered in regard to the question submitted to them ; and they may, if they think proper, vary the plan or dimensions of any ditch so proposed to be opened. If any alterations are made, they must be designated on the map.' If, after taking all the circumstances into consideration, the jury are satisfied that the opening of the ditch or ditches is necessary and proper, they must so certify, by inquisition in writing ; and, if so satisfied, they must further certify, by such inquisition, that the benefits which will accrue to the owner of the lands from the opening of the ditch or ditches, will or will not be equal to any damages he will sustain thereby ; and, if such benefits are certified not to be equal to the damages, the jury 1 2 K. 8. 543, § S J ante, pp. 2ST, 288. » id. § 5. ' 2 U. 8. 648, % 4. DEAINING SWAMPS. 771 must assess the damages whicli, in their judgment, will be sustained therefrom by such owner, and certify the same in like manner.' § 273. Inquisition. "We, the undersigned, who were summoned as a jury to ex- amine and certify in regard to the benefits or damages which would result from the opening of a certain ditch [or, certain ditches] through the lands of C. D., situate in the town of , in the county of , do hereby certify that, in obedience to such summons, we met on the day of ,18 , at o'clock in the noon, on the prem- ises of the said 0. D. ; that we personally examined such premises, and heard the reasons that were offered in regard to the opening of the said ditch, \or, ditches ;] that we made no [or, that we made certain] alterations in the plan of the said ditch [or, ditches] submitted to us ; and that, after taking all the circumstances into consideration, we are satisfied that the opening of the said ditch [m-, ditches] is necessary and proper. And we further certify, that the benefits which will accrue to the said C. D. from the opening of the said ditch [or, ditches] will be [or, will not be] equal to any damages that he will sustain thereby. [If the lenefits are not equal to the damages, add : We therefore assess and certify the dam- ages which will be siistained by the said C. D. from the open- ing of the said ditch [or, ditches,] at the sum of dollars.] In witness whereof, we have hereunto set our hands, this day of , 18 .] [Signatu/res of the Jurors.] This inquisition must be signed by all the jurors, and de- livered to the Justice. Upon the payment of the costs, and of the damages, if there are any, and the delivery of the in- quisition to the Justice, the party applying for the summons may enter upon the land, and cut and open the ditches, and he and his heirs, forever thereafter, have the right to enter upon the premises, and clean out the ditches as often as the same shall be necessary. Any person obstructing or injuring the ditches is liable to pay double the damages that shall be assessed by a jury for such injury ; and, in case of a second offence by the same person, treble such damages." The Justice must file the map and the inquisition, certified i2B.8.B«,§6. »id, B49,§§6, 7, 8,9. T72 NEW-TOEK JUSTICE. by him, in the clerk's office of the town where the premises are situated.' When any jury is empannelled, if they cannot agree, after being kept together for such time as is deemed reasonable by the Justice before whom they have appeared and been em- pannelled, such Justice may discharge them, and issue a pre- cept for a new jury, or order another juiy to be drawn, as the case may require ; and the same proceedings must be had before such new jury as might have been had before the jury so discharged.'' Fees. The Justice, and the constable who summons the jury, are entitled, for all their services under this statute, to a fee of one dollar each.^ The jurors are entitled to fifty cents each, in case they attend, and agree upon and sign an inquisition as above provided.* CHAPTER X. OF EXCISE AND TAVERNS. The supervisor of every town, and the Justices of the Peace resident therein, are the Board of Commissioners of Excise for their town. Three of them, consisting of the su- pervisor, and any two of the Justices, are competent to exe- cute the powers vested in the Board. If the office of super- visor is vacant, then any three of the Justices may form a Board. If there are not two Justices in the town, then any two Jiistices of a neighboring town may be associated by the supervisor with him, and the three form the Board.' 1 2E. S. 1549, §10. Md. na. 554, §26. • 1 E. S. 6I_8, § 1. »Law8oflS51,cliop, 845, §2. EXCISE AND TAVEENS. 773 The supervisor may associate more than two Justices with hira as Commissioners of Excise, and the act of a majority present is valid. If three, or a majority present, sign the li- cense to keep a tavern, it is sufficient, though the supervisor refuse. It is not indispensable that the supervisor should sign the license." The Commissioners of Excise are to meet on the first Mon- day of May, in each year, in their respective towns, and on such other days as the supervisor shall appoint, at such place as shall be designated by him ; or, in case his office be vacant, on such other days, and at such places, as the Justices of the Peace of the town may appoint." § 274. Notice of Supervisor for Sjyecial Meeting of the Commissioners of Excise. To G. H., Esq., one of the Justices of the Peace of the town of : Ton are hereby notified, that a meeting of the Commission- ers of Excise of said town, will be held at my office, [or, at the house of H. C.,] on the day of instant, at ten o'clock in the forenoon, for the purpose of acting upon such business as may be brought before them. Dated , January 10, 18 . Tours, &c., A. B., Supervisor. Boards of Excise are required to keep a book of minutes of their proceedings, in which must be entered every resolu- tion granting a license to any person ; which minutes miist be verified by their signatures, and filed with the town clerk within five days.' § 275. Minutes of Boa/rd of Excise. At a meeting of the Commissioners of Excise of the town of , in the comity of , held on the day of J 18 : Present, A. B., Supervisor of the town. Q ■ rri ■' [• Justices of the said town. Resolved, That licenses be granted to the following persons, to retail strong and spirituous liquors and wines; and that the sum to be paid for each license, be the sum put opposite the name of sach person, to wit . I , L. M., as a Tavern Keeper. $ , 0. P., as a Grocer. > 1 JolinsOD, 500. » Id. § 8. a 1 K. S. 6T8, § 2. 774 NEW-TOEK JtrSTIOE. Resolved, Tliat licenses be granted to the following persons to keep taverns, under the provisions of the act entitled "An act authorizing licenses to keep taverns, without including a license to sell spirits, and to abolish fees for the same," passed April 12, 1843, to wit : C. D., as a Tavern Keeper. E. F., do. do. In witness whereof, we, the said Commissioners, have here- unto subscribed our names, the day and year above written. A. B., Supervisor. £f&c., } ^^^*^<^^«- The Board has the power to grant licenses to keepers of inns and taverns, being residents of their town or city, to sell strong and spirituous liquors and wines, to be drank in their houses respectively ; and to grocers, being such residents, li- censes to sell such liquors or wines, not to be drank, however, in their shops, houses, out-houses, or gardens ; and to deter^ mine the sum to be paid for a license, by each person apply- ing ; which sum must not be less that five dollars, nor more than thirty dollars.' Licenses to keep taverns may also be granted, without in- cluding a license to sell strong or spirituous liquors, wines, or alcoholic drinks ; and, in all such cases, the restriction must be expressed on the face of the license ; and no sum of mon- ey or fee for such license can be required or taken. Such license, however, cannot be granted, until a bond like that here- after mentioned as required where a license is granted to a per- son to sell liquor to be drank in the house of the seller, is given.' Licenses to sell liquors must be signed by the Commission- ers, and are not to be issued until the duty fixed by the Board has been paid. When issued, they continue in force, unless revoked, until the day after the first Monday of May in the succeeding year ; and, it seems, they must be in wi'iting.' This provision of the statute does not refer to the calendar year, but to the license year ; and, therefore, a license grant- ed after the first Monday of May, expires at the same time with those granted on that day." 1 1 E. a. CTS, § 4 s id. § 8 ; 11 Johnson, 1T8. 2 Laws of 1S48, chap 9T, § 1. , • 1 Denio, 149. EXCISE AOT) TATEENS. 175 A license granted by two of the Commissioners of Excise, without the presence or consent of the supervisor, and when they are not assembled as a Board for the purpose of grant- ing licenses, is illegal and void.' Licenses cannot be granted to any person to sell strong and spirituous liquors and wines to be drank in the house of the seller, unless such person proposes to keep an inn or tavern, nor unless the Commissioners are satisfied that the applicant is of good moral character, that he is of sufficient ability to keep a tavern, and has the necessary accommodations to en- tertain travellers, and that a tavern is absolutely necessary for the accommodation of travellers at the place where such ap- plicant resides or proposes to keep the same ; all of which must be expressly stated in the license.^ A town Board of Excise, until the actual entry of a resolu- tion, has a large discretion to exercise on the question of granting and refusing licenses, which a Court will, in no case, attempt to control.' Commissioners of Excise are indictable for knowingly and corruptly granting a tavern license to a person who is not of good moral character, who has not the necessary accommo- dations, and whose proposed tavern is not necessary for the actual accommodation of travellers.* Before any license can be granted to any person to sell strong and spirituous liquors, and wines, to be drank in the house of the seller, the applicant must execute and deliver to the supervisor, or, in case of his absence, to one of the Justi- ces of the town, a boad to the people of the State, in the pe- nal sum of one hundred and twenty-five dollars, with a suffi- cient surety, to be approved by the Board, with a condition that the applicant, during the time that he shall keep an inn or tavern, will not suffer it to be disorderly, or suffer any cock-fighting, gaming, or playing with cards or dice, or keep any billiard table, or other gaming table, within the tavern so by him kept, or in any out-house, yard, or garden belonging thereto.' 1 2 Johnson's Cases, 846. ^ 7 Barbour, 477. ' 1 E. 8. 679, § 6. » 1 E. S. 679, § 7. s 1 Hill, 655. 776 NEW-YOEK JUSTICE. § 276. Bond of Tavern Keener, on License to sell Sjtirituous Liquors, with Approval. Enow all men by these presents: That we, L. M. and E.F., of, &c., are held and firmly bound unto the people of the State of JSTew-York, in the sum of one hundred and twenty- five dollars, to be paid to the said people ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and sever- ally, firmly by these presents. Sealed with ouj seals. Da- ted the day of , one thousand eight hundred and .* Whereas, the said L. M. proposes keeping an inn or tavern, at , in the town of , in said county of , and has applied for a license to sell strong and spirituous liquors and wines, to be drank in the said inn or tavern, to be kept as aforesaid : Now, therefore, the condition of this obligation is such, that if the said L. M., during the time he shall keep an inn or tavern, shall not cuflTerit to be disorderly, or sufi^erany cock-fighting, gaming, or playing with cards or dice, or keep any billiard table, or other gaming table, within the tavern by him so to be kept, or in any out-house, yard, or garden, belonging thereto, then this obligation to be void ; else, to re- main in force. Signed, sealed and delivered, ) L. M. [l. s.] in presence of G. li. j E. F. [l. s.] We, the undersigned, forming a Board of Commissioners of Excise for the town aforesaid, approve of the above bond and of the surety therein, as suflicient for the purposes intended. A. B., Supervisor. G. H., &c., &c. [■ Justices. § 277." Bond for obtaining License, under Act of 1843. Know all men, &c., \_as in § 270 to the *, and tJicn add;] Whereas, the said L. M. has applied for a license to keep an inn or tavern in the town of , in the said county of , without including a license to sell strong or spirituous liquors, wines, or alcoholic drinks : Now, therefore, the con- dition of this obligation is such, that, &c., [as in § 276, to the end.] § 278. License for hec2nng Tavern and selling Spirituous Liguors. We, the undersigned, forming a Board of Commissioners o f Excise for the town of , in the county of , having been applied to by L. M., a resident of the said town, who EXCISE AND TAVERNS. 777 proposes to keep an inn or tavern at , in the said town of , for a license to sell strong and spirituous liquors and wines, to be drank in liis [oj'lier] house ; and being satis- fied that he [or, she] is of good moral character, and of sufii- cient ability to keep a tavern, and that he [or, she] has the necessary accommodations to entertain travellers, and that a tavern is absolutely necessary for the actual accommodation of travellers, at the place V'here he [or, she] proposes to keep the same ; and for which he [or, she] has paid a duty of dollars, determined by us ; we do therefore grant this license, and authorize him [or, her] to sell strong and spirituous liquors and wines, to be drank in the inn or tavern to be kept at the place above mentioned. This license is to be in force until the day after the first Monday of May next. In witness whereof, we have hereunto subscribed our names, the day of , 18 . A. B., Supervisor. o' s r Justices. &c., &c., j § 279. License to Jceejp Tawern, without selling Spirituous Liquors. We, the undersigned, forming a Board of Commissioners of Excise for the town of , in the county of , hav- ing been applied to by C. D., a resident of said town, who proposes to keep an inn or tavern at , in said town, for a license to keep such tavern, without including a license to sell strong or spirituous liquors, wines, or alcoholic drinks ; and being satisiied that he is of good moral character, and of sufiicient ability to keep a tavern, and that he has the neces- sary accommodations to entertain travellers, and that a tavern is absoltitely necessary for the actual accommodation of trav- ellers, at the place where he proposes to keep the same ; we do, therefore, grant this license, and authorize him to keep an inn or tavern at the place above mentioned ; provided, how- ever, that no strong or spirituous liquors, wines, or alcoholic drinks, shall be sold by the said 0. t)., under or by virtue hereof. This license is to be in force until the day after the first Monday of May next. In witness, &c., [as in % 278.] In all licenses that are granted to grocers or other persons, (except tavern keepers,) to sell strong or spirituous liquors or wines, in quantities less than five gallons, there must be insert- ed an express declaration, that such license shall not be deem- ed to authorize such sale of any liquor, or wine, to be drank in the house or shop of the peraon receiving such license, or 778 NEW-TOEK JUSTICE. in any out-house, yard, or garden appertaining thereto, or con- nected therewith. A bond similar to the one required above, must be given by the grocer, conditioned that, during the term for which his license is granted, he will not suffer his grocery to become disorderly ; that he will not sell or suffer to be sold any strong or spirituous liquors or wines, to be drank in his shop or house, or in any out-house, yard, or gar- den appertaining thereto ; and that he will not suffer any such liquor, sold by virtue of such license, to be drank in his shop, or house, or in any out-house, yard, or garden belonging thereto.' § 280. License to Grocer to sell Liquor. "We, the undersigned, forming a Board of Commissioners of Excise for the town of , in the county of , having been applied to by 0. P., a resident of said town, who proposes to keep a grocery at , in the said town, for a license to sell strong and spirituous liquors and wines, in quantities less than five gallons, and for which he has paid a duty of dollars, determiaed by us ; And being satisfi- ed that he is of good moral character : We do therefore grant this license, authorizing him to sell strong and spirituous liquors and wines, in quantities less than five gallons, but not to be drank in his shop, house, out-house, yard or garden ; and it is expressly declared, that this license shall not be deemed to authorize such sale of any liquors or wines, to be drank in the house or shop of the said 0. P., or in any out- house, yard, or garden, appertaining thereto, or connected therewith. This license is to be in force until the day after the first Monday of May next. In witness, &c., \_as in § 278.] § 281. Grocer's Bond. Know all men, &c., \as in § 276, to the *, and then add:} Whereas, the said 0. P. has applied for a license to sell strong and spirituous liquors and wines, at his grocery, in the town aforesaid : Now, therefore, the condition of this obligation is such, that if, during the term for which his license shall be granted, he shall not suffer his grocery to become disorderly ; nor sell, or sufl'er to be sold, any strong or spirituous liquors or wines, to be drank in his shop, or house, or in any out-house, yard or garden, appertaining thereto ; nor suffer any such ' 1 E. S. 680, § 18. EXCISE AHD TAVEENS. 779 liquor, sold by virtue of such license, to be drank in his shop or house, or in any out-house, yard, or garden, belonging thereto, then this obligation to be void ; else, to remain in force. Signed, sealed, &c., [as m § 276.] [Add approval, as m § 276.] This bond must be filed in the office of the clerk of the town, city or village, within five days after its execution." The penalty for a violation of the excise law, by selling any strong or spirituous liquors, or any wines, in any quantity less than five gallons at a time, without a license, is twenty- five dollars ; and, whoever sells the same to be drank on his premises, without a license therefor as a tavern keeper, is lia- ble to forfeit the same amount." The selling of such liquors to servants, apprentices, or mi- nors under the age of fourteen years, without the consent of the master, or father, or mother, or guardian of such servant, apprentice or minor, is punishable by a forfeiture of five dol- lars, to be recovered by the master, or parent, or guardian.' The person receiving, directly or indirectly, from any such servant, apprentice, or minor, any clothing, goods, money, or things in action, in payment for any strong or spirituous liquors or wines, sold to such apprentice, servant or minor, or receiv- ing them in pawn or pledge to secure any such payment, for- feits three times the sum or value of the money or articles so received by him, together with the money or articles them- selves, to be recovered by the master, parent, or guardian, as the case may be.* The penalties thus imposed must be sued for and recovered by the overseers of the poor of the town where the offence is committed, except where the statute prescribes that they are to be sued for by some other person.' Whenever a breach of the condition of a bond given by a tavern-keeper, grocer, or other person occurs, it is the duty of the supervisor of the town, mayor of the city, or trustees of the village in which the bond was executed, to prosecute the same, and recover the penalty thereof, for the use of the poor.° > 1 K. S. 681, § 20. 4 id. § 18. ' id. 680, §§ 15, 16 ; 8 Denio, 227. » ia. § 19. » 1 E. S. 681, § IT. » id. § 21. 780 NEW-TOEK JUSTICE. For the cases in which Justices of the Peace have jurisdic- tion of actions on bonds and for penalties, see ante, ]). 27. In all cases where a Justice issues any process for the pur- pose of compelling the appearance of a defendant to any ac- tion for the recovery of any penalty or forfeiture under the ex- cise law, he must endorse on such process a general reference to the statute by which such action is given, in the following form : According to the section of title 9, chapter 20, part 1, of the Eevised Statutes entitled " Of excise, and the regula- tion of taverns and groceries," [or, the section of the act of , entitled .'] An action to recover a penalty under the excise laws may be maintained before a Justice of the Peace of the town, for the benefit of the poor of which town the penalty when recovered is to be applied, notwithstanding the pro- vision of the statute that no action to recover a penalty given to a town shall be brought before any Justice of the Peace of the town for the benefit of which the action is pros- ecuted." The complaint, in an action for a penalty for selling liquors in violation of this statute, should state the town where, the time when, and the kind and quantity of liquor sold.' But, it seems that it is not necessary to prove the precise day of committing the ofience,* or the fact that the defendant had not a license. ' The offence of selling the liquor may be proved by circumstantial evidence ; and the fact that the defendant kept liquor in his grocery store to sell, is competent evidence for that purpose, in an action against him to recover the pen- alty.'_ A single action for a penalty may be sustained against sev- eral who join in selling liquors without license, though but one penalty can be recovered. And the rule as to recovering but one penalty is the same, whether there are one or several ac- • 2 E. 8. 431, § 7. * 18 Johnson, 253. 2 6 Hill, 68. " 19 WondoU, 861. 8 3 Calnea, 187. ' 3 Barbour, 653' EXCISE AND TAVERNS. 781 tions.' Several distinct penalties may, however, be recover- ed in the same suit." It is no answer to a charge of selling liquor by retail with- out license, that it was sold to the purchaser under the direc- tion and prescription of a licensed physician ; it must also ap- pear that it was prescribed for medical purposes." "Whether a contract to sell five gallons of spirituous liquor, to be taken away in small quantities at the pleasure of the purchaser, the seller having no license, is a violation of the excise law, de- pends upon the question, whether the seller's intention be fair, or a mere evasion of the statute. This question is proper for the jury, with whose verdict the Court will not interfere.' Whenever any conviction or judgment is obtained against any person licensed to sell strong or spirituous liquors, or wines, for any violation of the foregoing statute, either in an action for a penalty, or in an action upon the bond given by such person, it is the duty of the Justice before whom the con- viction is had, or by whom the judgment is rendered, to trans- mit to the next Court of Sessions of the county, a statement of the conviction or judgment, and of the offence for which it was obtained.' The Justice is also required to endorse upon the execution issued upon a judgment recovered in such an action, the cause for which such judgment was rendered. If no goods or chattels can be found to satisfy the execution, the constable having the same must commit the defendant to the county jail, and deliver to the keeper a certified copy of the execution and endorsement, by virtue of which the keeper must detain the defendant for a period of not exceeding sixty days, without allowing him the benefit of the liberties of the jail.' Persons selling metheglin, currant wine, cherry wine, or cider, are not liable to prosecutions under this statute ; ' nor does the statute extend to persons selling strong or spirituous liquors or wines on board any boat or vessel, navigating any river, lake, canal or other stream within this State.' But, 1 1 Denio, 640. 6 1 K. S. 681, § 22 ' 3 Hill, 527. « 2 id. 251, § 143. 3 5 Denio, 112. ' 1 id. 082, § 26. 4 1 Cowen, TT. ' id. § 28, 782 HEW-TOEK JTTSTIGE. whenever any boat remains at any city, town, village, or oth- er place for a longer time than one hour, no strong or spirit- uous liquor or wine can be sold in any quantity less than five gallons, on board of such boat so remaining beyond the hour, to any person or persons whatever, under a penalty of twenty- five dollars for each ofience ; and, if the offence is committed on a steamboat or canal boat, the penalty is to be sued for and recovered in the name of the overseers of the poor of the town or city in which the offence was committed, and to be appropriated to the use of the poor." In those counties in which the distinction between town and county poor is abolished, all moneys received for excise duty in any city or village, except the city of New-York, must be paid into the county treasury, for the support of the poor." Every assignment, sale or pledge of articles which are ex- empt from execution, and every levy or sale of such articles or property by virtue of an execution, by consent of the de- fendant therein, is void, where the consideration or any part thereof, for which such assignment, sale or pledge was made, or for the debt on which judgment was rendered in any Court, and on which such execution was issued, was for the sale of intoxicating liquors ; and, in any action commenced for the recovery of the value of the property sold as aforesaid, the person for whose benefit such sale or transfer was made, may be called and examined as a witness, as to the fact of the sale of intoxicating liquors so made, in the same manner, and subject to the same penalties, as if called in any other case.' Fees. No fee or reward can be taken by any Board of Excise, or by any member thereof, for any license to keep a tavern, or to sell any strong or spirituous liquors, or for any service re- quired of such Board, nor can any compensation be retained by any such Board, or by any member thereof, out of the ex- cise money, but the whole amount thereof must be paid over in the manner required by law. But the persons composing ■ 1 E. S. 682, §§ 29, 80. ' Laws of 1842, chap. IBT, § 8. >id.§81. FUGITITES FEOM JUSTICE. Y83 sucli Board are entitled each to receive the sum of one dollar and twenty-five cents for one day's attendance only thereon, when actually done, to be audited and allowed and paid in like manner as other town charges ; and no other or greater com- pensation can be allowed, whether any license be granted or not, or whether such board be in session one day, or more than one. The expenses of procuring blanks for such licen- ses as may be granted, when actually incurred, are to be au- dited, allowed, and paid in like manner as other town charges.' The commissioner drawing the bond is entitled to a fee of twenty-five cents." Eor proceedings to recover penalties under this statute, the like fees are allowed as in civil actions.' CHAPTER XI. OF FUGITIVES FROM JUSTICE. By the Constitution of the United States it is provided, that a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime." Under this section of the Constitution, a law has been passed in this State, by which certain judicial officers, among whom are J ustices of the Peace, are clothed with power to issue process for the apprehension of a person charged in any State or Territory of the United States, with treason, felony, or other crime, who shall flee from justice, and be found within this State. ° The proceedings under this act are similar in all respects to the proceedings under the statute providing for the arrest and 1 Laws of 1843, chap. 97, § 3. • Constitution TJ. S. Art 4, Sec. 2. 2 2 E. S. 681, § 20. » Laws of 1889, chap. 860, § 1. s id. 480, § 2 ; ante, p. 472. T84 NEW-TOEK JUSTICE. commitment of persons guilty of offences within this State, and which have been fully considered in another portion of this work.' The warrant must be issued and served in the usual manner, and the fugitive be brought before the Justice, and the examination had, as in other cases. If it appears, from the examination, that the person charged has committed a criminal offence, and is a fugitive from justice, the Justice must, by a warrant reciting the accusation, commit him to the common jail of the county, there to be detained for such time, to be specified in the warrant, as the Justice shall deem reasonable to enable such fugitive to be arrested by virtue of the warrant of the Governor of this State, issued according to the act of Congress, upon the requisition of the Executive au- thority of the State or Territory in which the fugitive com- mitted the offence, unless such person shall give bail as hereinafter mentioned, or until he shall be discharged by law.'' The prisoner may give bail, in such sum as the Justice shall require, conditioned that he will appear before the Justice, at such time as to the Justice may seem reasonable, and will deliver himself up to be arrested on the warrant of the Ex- ecutive of this State.' § 282. Wa/rrant to commit a Fugitive from Justice. County, ) g. Town of . f ■ To any Constable of said county, and to the keeper of the common jail of the said county. Greeting : Whereas A. B., of in the'county of , did, on the day of J 18 , complain on oath before me, J. H. B., a Justice of the Peace of the said county of , of one 0. D., and accuse him, the said C. D., of having, on the day of , 18 , committed the crime of [state the offence,'] at in the county of , and State of , and of having thereafter fled from the said State of ; And whereas, by virtue of a warrant of arrest by me dnly issued, the said C. D. was arrested and brought before me this day, to answer the said charge, and it appears to me, from an examination of the said A. B., [and others,] on oath, in the pres- ence ofthe said CD., in regard to said charge, [and from an ex- amination of the said C. D.,] and from an examination of the > Laws of 1889, chap, 860, § 2; ante, p. 544, " Laws of 1SS9, chap. 350, § £ et seq. " W. § i< rTTGITIVES FEOM JITSTIOE. 785 whole matter, that there is probable cause to suspect that the said offence has been committed, and that the said C. D. is guilty thereof, and is- a fugitive from justice from the said State of _ ; And whereas the said 0. D. has neglected to give bail in the sum of dollars, as required by me, conditioned to appear before me on the day of , 18 , and to deliver himself up to be arrested upon the war- rant of the Executive of this btate, if one shall be issued to arrest him : These are, therefore, to command you, the said constable, forthwith to take and deliver the said C. D. into the custody of the keeper of the said jail ; and you, the said keeper, are hereby required to receive the said C. D. into custody in the said jail, and him there safely keep, until the day of ) 18 , unless he shall give the bail above required by me, or until he shall be discharged by law. Witness my hand and seal, this day of , 18 . J. H. B., [l. s.] Justice of the Peace. § 283. Bond hy a Fugitive from Justice. Know all men by these presents, that we, A. B. and C. D., are held and firmly bound unto the people of the State of New- York, in the sum of dollars ; for which payment, well and truly to be made, we bind ourselves, our heirs, ex- ecutors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , 18 .* Whereas the above bounden C. D. has been arrested and this day brought before J. H. B., a Justice of the Peace of county, charged with being a fugitive from justice from the State of , and with having, on the day of ,18 , committed the crime of \st(de the crime^ in the town of , in the county of , in the State of : I^ow, therefore, the condition of this obligation is such, that if the said C. D. shall personally be and appear be- fore the said J. H. B., on the day of j 18 , and shall deliver himself up to be arrested upon the warrant of the Executive of this State, then this obligation to be void ; otherwise, of force. Taken, subscribed and acknowledged ] A. B. [l. s.J before me, the day of 18 . j C. D. [l. s.] J. H. B., Justice, &c. The Justice before whom the prisoner has been examined and committed, must immediately give a written notice to the district attorney of the co^^^Jj ^^ the name of the prisoner, 51 1S6 NEW-TOEK JUSTICE. and the cause of his arrest," and must also make a return to the next Court of Sessions of his proceedings in the premises.' The prisoner is to be discharged from his detention or bail, unless, at or before the expiration of the time designated in the warrant of commitment, or in the condition of the bail "bond, he is demanded or arrested by a warrant of the Execu- tive of this State.' Justices of the Peace are also, by an act of Congress,' 'clothed with power to arrest, and imprison or bail, persons charged with any crime or offence against the United States. The provisions of that act are as follows : " And be it far- ther enacted, that, for any crime or offence against the Uni- ted States, the offender may, by any Justice or Judge of the United States, or by any Justice of the Peace, or other mag- istrate, of any of the United States where he may be found, agreeably to the usual mode or process against offenders in such State, and at the expense of the United States, be arrest- ed, imprisoned or bailed, as the case may be, for trial before such Court of the Ufeited States as, by this act, has cogni- zance of the offence. And copies of the process shall be re- turned as speedily as may be into the clerk's office of such Court, together with the recognizances of the witnesses for their appearance to testify in the case ; which recognizances the magistrate before whom the examination shall be, may require, on pain of imprisonment. And, upon all arrests in criminal cases, bail shall be admitted, except where the pun- ishment may be death, in which cases it shall not be ad- mitted but by a Judge or Justice of the Federal Courts." Under this act, a Justice of the Peace has power to issue process fof the arrest of offenders against the laws of the United States, irrespective of the locality where the offence was committed ; and the proceedings subsequent to the ar- rest are similar to those which ensue upon the arrest of a per- son charged with an offence against the laws of this State, and which have already been considered in a preceding part of this work.' The Justice has power to take recognizances 1 Laws of 1889, chap. 850, § 5, » 1 U. S Statutes at Large, 92, § 8S, (Act of a id. § T. Septojplier 24th, 1789.) I id. § 0. * Ante, p. 679, et seq. FUGITIVES FEOM JUSTICE. 787 from the -witnesses in the same manner as in cases under the State laws, and may imprison the witnesses if they refuse to give the recognizances.' There is one difference, however, between the provisions of the act of Congress, above quoted, and those of our own statute, in respect to the authority of Justices to take bail, which is worthy of notice. Under the act of Congress, the Justice may take bail whenever the offence is not punishable with death ; while, under our own law, he cannot take bail if the offence is a felony punishable by imprisonment in tue state prison for a period exceeding five years.^ Copies of the process issued by the Justice, together with the recognizances taken by him under this act, both from the witnesses and the prisoner, are to be immediately returned into the clerk's office of the Court of the United States hav- ing cognizance of the offence, and they must be taken for the appearance of the prisoner in such Court. The Circuit and District Courts of the United States have concurrent jurisdic- tion of all crimes and offences cognizable under the authority of the United States, the punishment of which is not capital. When capital, the Circuit Court alone has jurisdiction.' For every offence, therefore, against the laws of the United States, for which the Justice can take bail, he may take it for the appearance of the prisoner at either the Circuit or District Court. The recognizances, however, should be taken to ap- pear at the next term to be held, of whichever Court it may be. In the Southern District of E"ew-Tork, which includes all that part of the State south of the counties of Albany, Eensselaer, Schenectady, Schoharie and Delaware,* the Courts are held as follows : Circuit Courts in each year on the first Monday in April, third Monday in October, and last Mondays in February and July, at the City Hall, in the city of New- York. District Courts in the Southern District are held in each year, on the first Tuesday of every month, at the same place.' In the ISTorthern District, which includes the residue of the State, Circuit Courts are held, in each year, at Albany, 1 Ante, pp. 68T, 688. * 8 id. 120, 414. 5 2 E. S. TIO, § 29. • Law'8 U. S. Courts, 822, 880. s 5 V:S. Statutes at Large, 61T; 1 Id. 91. 788 NEW-TOEK JUSTICE. on the third Tuesdays in May and October, and at Canandai- gua, on the Tuesday next after the third Monday in June. The District Courts in the Northern District are held as fol- lows, in each year : At Albany, on the third Tuesday in Janu- ary ; at Utica, on the second Tuesday in July ; at Kochester, on the third Tuesday in May ; at Auburn, on the third Tuesday in August; at Buffalo, on the second Tuesday in November ; and one term annually, at such time and place within the counties of St. Lawrence, Clinton, or Franklin, as the Dis- trict Judge appoints.' The clerk's offices of the Circuit and District Courts of the Southern District are at New-York ; of the Circuit Court of the Northern District, at Utica ; and of the District Court of that District, at Buffalo." Fees. The proceedings for the apprehension of offenders, treated of in this Chapter, are in all respects similar to those under the statute of this State, heretofore considered,' for the arrest and commitment of persons guilty of offences within this State. The table of fees applicable to those proceedings has already been given." CHAPTER XII. OF GAMING AND LOTTERY TICKETS. The act entitled, " An act more effectually to suppress gam- bling," and which makes it illegal to keep a place for gam- bling, or to keep gambling devices, or to sell lottery tickets, provides, that if an affidavit shall be filed with the magistrate or Police Justice of any town or city before whom complaint shall have been made of an offence against the provisions of > Law's U. 8. Courts, 822, 880. » Ante, p. 544, ot seq. J la^ _ * Ante, p. 687. G ATvrm a aiid lotteet tickets. 789 that act, stating that the affiant has reason to believe, and does believe, that the person charged in the complaint, has upon his person, or at any other place named in the affidavit, any specified articles of personal property, or any gambling table, device or apparatus, or any lottery policies, public or private, the discovery of which might lead to establish the truth of the charge, the magistrate or Justice may, in his dis- cretion, by warrant, command the officer, who is authorized, to arrest the person so charged, to make diligent search for such property and table, device or apparatus, and, if found, to bring the same before the magistrate or Justice. The officer seizing the property must deliver it to the magistrate or Justice, who is to take possession of it, and be responsible for it, until the discharge, commitment, or letting to bail, of the person charged. If the person charged is committed or let to bail, the officer must retain the property, subject to the order of the Court before which the offender may be required to appear, until his discharge or conviction.' Any Justice of the Peace or Police Justice, upon a com- plaint made on oath that any gambling table, apparatus, establishment, or device, is kept by any person for the purpose of being used to win or gain money or other property, or by any other person, or any lottery policies of any lotteries, may issue his warrant, commanding any sheriff or constable to whom the same shall be directed, within the proper jurisdic- tion, after demanding entrance, to break open and enter any house or place wherein such gambling table, establishment, apparatus, or device, shall be kept, and to seize and deliver the same to the mayor of the city, president of the village, supervisor of the town, or clerk of the county where such seizure shall be made, who must keep the same until the term of the Court at which the case shall be tried.^ The Form of warrant heretofore given can be easily adapted to a case arising under the foregoing provisions.' , Fees. The fees allowed by law for services under this statute are as follows : > Laws of 1851, chap. 604, §§ 1, 2, 8. ' Ante, p. 641. = id.§4 790 NEW-TOEK JUSTICE. To JusUcesr^ An oath or afiEinnatioii, twelve and a half cents ;■ A warrant of seizure and arrest, nineteen cents ; Drawing, copying and certifying a recognizance, twenty- fiye cents ; Taking and certifying the acknowledgment of any instru- ment, which is required to be acknowledged before a Justice, twenty-five cents ; A warrant of commitment, nineteen cents. To Constables.'''] Serving a warrant, nineteen cents ; Mileage, going only, for each mile, .six cents ; Arresting and committing any person pursuant to process, fifty cents ; Mileage, going only, for each mile, six cents. CHAPTER XIII. OF HABITUAL DKUNKAEDS. "Whenever the overseers of the poor of any city or town discover any person to be an habitual drunkard, they must, by writing under their hands, designate and describe such drunkard, and, by a written notice signed by them, require every merchant, distiller, shop-keeper, grocer, tavern-keeper, or other dealer in spirituous liquors, and every other person residing within the city or town where the drunkard resides, or in any other city or town near to or adjoining such city or town, not to give or sell, under any pretence, any spirituous liquors to such drunkard. If, after the per- sonal service of such notice, any such person knowingly gives, or sells, in any manner whatever, spirituous liquors to any such drunkard, except by the personal direction, or on » 2 K. S. 687, § 28. • ii 641, § 40. HABITUAL DEmraiAEDS. 791 the written certificate, of some physician regularly licensed to practise according to the laws of this State, stating that such liquor is necessary for the preservation or recovery of the health of such drunkard, he forfeits, for every offence, the sum of ten dollars, for the use of the poor of the town where the drunkard resides.' Every person thus notified is liable to this forfeiture, whenever his clerk, or agent, or any mem- ber of his family, violates the statute, by knowingly giving or selling to an habitual drunkard any spirituous liquors." "Where the parent or guardian of a minor under sixteen years of age, or the master of a servant or apprentice, has been designated as an habitual drunkard, no person licensed to sell strong or spirituous liqnors or wines, can, without the consent of the overseers of the poor of the city or town where such minor or apprentice or servant resides, sell to such minor or apprentice or servant any such liquors or wines, under a penalty of five dollars, to be recovered by the overseers of the poor.' § 284. Notice designating Sabitual Drunkard, <&c. Town of County, f _^^ '• We, the undersigned. Overseers of the Poor of said town, having discovered A. B., of said town, to be an habitual drunk- ard, do hereby designate him as such habitual drunkard, and describe him as follows : [description /] And every merchant, distiller, shop-keeper, grocer, tavern-keeper, or other dealer in spirituous liquors, and every other person residing within the said town, or in any city or. town near to or adjoining said town, is required not to give or sell, under any pretence, any spirituous liquors to the said A. B. Dated at , this day of , 18 . CD., E. F., Overseers of the Poor. Any person so designated by the overseers of the poor as an habitual drunkard, may apply to any Justice of the Peace of the city or town in which he resides, for process to summon a jury to try and determine such fact of drunkenness. On 1 1 E. 8. 68T, §§ 1, 2 ; Laws of 1840, chap. Md. § 2. 229, §3. s id.; IE. S. 681, §17. 792 NEW-TOEK JUSTICE. 8uch application, the Justice must immediately give a written notice thereof to the overseers of the poor, specifying the time and place where the parties are to meet for the trial of such fact ; and must issue a veni/re to a constable, to summon a jury of twelve persons competent to serve on juries, to appear at the said time and place, for the purpose of trying the said fact.' § 285. Notice to Overseers hy Justice. To C. D. and E. F., Overseers of the Poor of the town of : You are hereby notified, that A. B., who has been designa- ted by you as an habitual drunkard, has applied to me for a process to summon a jury to try and determine the fact of such drunkenness ; and that I have fixed upon the day of instant, at o'clock in the noon, at my ofiice in said town, as the time and place for such trial. Dated , this day of , IS • G. H., Justice of the Peace. § 286. Venire. County, ss: To any Constable of the town of , in said county, greeting : You are hereby commanded, in the name of the people of the State of New-Yoi'k, to summon a jmy of twelve persons, competent to serve on juries, to appear at my office, in aforesaid, on the day of instant, at o'clock in in the noon, to try the fact, whether A. B., of said town, is an habitual drunkard, he having been designated as such by the Overseers of the Poor of the said town ; and you will have then there a panel of the names of the jurors you shall so summon, and this precept. Witness my hand, this day of , 18 . G. H., Justice of the Peace. The jury are to be summoned, and returned, and six of them to be ballotted for, and sworn well and truly to try the fact of the alleged drunkenness, in the same manner as for the trial of issues in actions brought before a Justice of the Peace ; and witnesses are to be summoned, and their attendance and testimony enforced, and they are to be sworn and examined before the jury, in like manner as in such actions." ' 1 E. S. 68T, §§ 4, 6. » Id. § 5. HABITUAL DEUNKAEDS. 793 § 287. Juror's Oath. You do swear, that you will well and truly try the fact of the alleged habitual drunkenness of A. B., and a true verdict give, according to evidence. § 288. Oath to Witness. You do swear, that the evidence you shall give, touching the fact of the habitual drunkenness of A. B., shall be the truth, the whole truth, and nothing but the truth. The jury must hear the proofs and allegations offered on both sides, and proceed, in all respects as in trials at law, to render their verdict. The Justice must enter the verdict in a book to be kept by him for that purpose.' This verdict, or an .attested copy of it, is presumptive evidence of the fact of drunkenness as thereby found, in any action between the overseers of the poor and any person prosecuted by them for the penalty above imposed.' If the jury, by their verdict, find the person demanding the trial to be an habitual drunkard, the Justice must enter judg- ment against him, and award execution for the costs of the overseers of the poor in attending the trial, in the same man- ner as in civil actions.' § 289. Execution against the Drunkard. Coimty, ss: To any Constable of said County, greeting : Whereas, A. B. of , in said county, was designated and described by C. D. and E. F., Overseers of the Poor of said town, as an habitual drunkard ; and, by the verdict of a jury duly empanneled, drawn and sworn, before me, the un- dersigned Justice, upon the application of the said A. B.,* it is found that he is an habitual drunkard ; whereupon, I have rendered judgment against the said A. B., for the costs of the said Overseers in attending the trial, amounting to the sum of dollars : You are therefore hereby commanded, in the name of the People of the State of New- York, to levy the said costs of the goods and chattels of the said A. B., (except- ing such goods and chattels as are exempt by law from exe- cution,) and bring the money which you shall collect, sixty 1 1 E. S. 68T, § 6. ' id. § 8. " id. § T. Y94 mEW-TOKK JUSTICE. days from the date hereof, before me, at my office in , to render to said Overseers; [If the d/nmka/rd is a male per- son, add here : And if no such goods and chattels, or not suffi- cient to satisfy this execution, can be found, you are further re- quired to take the body of the said A. B., and convey him to the common jail of said county, there to remain until this execution shall be satisfied and paid.] Witness my hand, this day of , 18 . G. H., Justice, &c. If it is found that the person charged~is not an habitual drunkard, the Justice must enter judgment and award execu- tion for the costs of such person against the overseers, unless it appears that the overseers acted in good faith, and had rea- sonable cause to believe the person charged to be an habitual drunkard, in which case no costs can be awarded against them, but each party must pay their own costs.' § 290. Execution agojmst the Ov&rseers. County, ss: To any Constable of said County, greeting : "Whereas, A. B., &c., \as in § 289, to the*, and then add:'] it is found that he is not an habitual drunkard ; and, inasmuch as it appeared to me that the said Overseers of the Poor did not act in good faith, and had not reasonable cause to believe the said A. B. to be an habitual drunkard, I have entered judgment against the said 0. D. and E. F., Overseers, for the costs of the said A. B., amounting to the sum of dollars : Tou are therefore hereby commanded, in the name of the People of the State of New-York, to levy the said costs, &c., [as in § 289, to the end, indudingr the imprisonment clause, andvary- ing as requisite.] If the overseers become satisfied that the drunkard has re- formed, they may revoke and annul any notice given by them or any of their predecessors." § 291. Revocation ly the Overseers, where a Drunkard reforms. Town of , ) g . County, j Being satisfied that A. B., respecting whose drunkenness a notice has heretofore been given by us, [or, by C. D. and E. F., J 1 E. S. 68T, § 9. " Id. S 11. HABmrAL DEirNKAEDS. 795 Overseers of tlie Poor of said town,] has reformed and become temperate, we do hereby revoke and annul the said notice. Dated, &c., [as in § 284.] "Where there are two overseers of the poor in a town, they must both act in these proceedings. I^ees. The fees allowed by law for services under this statute are as follows : To Justices. '1 Every subpoena, six cents ; Administering an oath or affirmation, twelve and a half cents ; A precept to summon a jury, thirty-seven and a half cents ; Swearing a jury, twenty-five cents; Hearing the matter concerning which the jury is summon- ed, fifty cents; Eeceiving and entering their verdict, twelve and a half cents; An execution, nineteen cents. To Jwrors.'l Each juror, twelve and a half cents. To Constables. '~\ Summoning a jury, one dollar; Attending such jury when required, fifty cents ; Serving an execution, two and a half cents per dollar ; Advertising goods and chattels for sale on an execution, two dollars ; If the execution be stayed or settled after advertising and before sale, one dollar; Returning an execution, sixty-two and a half cents. The above fees to constables are the same as those allowed to sheriffs for similar services. To Witnesses.*'] Each witness, for each day's attendance, fifty cents ; Mileage, four cents a mile each way, if he resides more than three miles from the place of attendance. 1 2 E. S. 68T, §§ 28, 29. » Id. 64T, § 40 ; id. 645, § 88. « id. 643, § 87. < Laws of 1840, chap. 386, § 8. 796 NEW-TOEK JTSTIOE. CHAPTER Xiy. OF HAWKEES AND PEDLERS. The statute prohibits eyery person from travelling througli the State, and peddling any goods, wares, and merchandize, of the growth, produce, or manufacture of any foreign country, unless he shall have obtained a license as a hawker and ped- ler, as therein directed.' Every person so trading without license, or trading contrary to the terms of his license, forfeits, for each offence, the sum of twenty-five dollars, for the use of the poor of the town in which the offence was committed." If the hawker or pedler has a license, which he refuses to pro- duce, on demand, to any ofiBcer or citizen, he forfeits, for each offence, the sum of ten dollars, to the overseers of the poor of the town in which the demand was made, for the use of the poor ; and if, after notice, he refuses or neglects to pay the last named penalty, he must be committed by the Justice be- fore whom the conviction is had, to the jail of the county where the offence was committed, for the term of one month.' The proceedings upon a trial for a violation of this statute are the same as in other cases, and the commitment may be in the following form : § 292. Oommitment of a Hawker or Pedler, for refimng to ]paAj the Penalty for not showing his License. County, I Town of [ ®^- To any Constable of said County, and to the Keeper of the common jail of the said County, greeting: "Whereas, complaint on oath has this day been made before me, J. H. B., a Justice of the Peace of the said county, by O. P. and Q. E., Overseers of the Poor of the said town, that C. D., [state the offence, specifying the facts of the refusal to pro- duce license;'] And whereas, the said C. £). was (inly convict- 1 1 E. S. 6TS, § 1. » id. § T. •Id. 670, §6. HAWKEES AND PEDLEES. 797 ed before me of the said offence, and was thereupon adjudg- ed by me to forfeit the sum of ten dollars to the Oyerseers of the Poor of the said town, for the use of the poor therein ; And whereas, the said C. D., although duly notified of the said conviction, has refused and neglected to pay the amount so forfeited : These are therefore to command you, the said Constable, forthwith to take the said C. D., and deliver him to the Keeper of the said jail ; and you, the said Keeper, are hereby required to receive the said C. D. into your custody in said jail, and him there safely keep for the term of one month. Given under my hand, this day of ,18 . J. H. B., Justice of the Peace. Any citizen may apprehend and detain any person who is found trading as a hawker or pedler without a license, or con- trary to the terms of his license, or who refuses to produce his license when demanded, and convey him before any Justice of the Peace in the town or county in which he shall be ap- prehended.' By a subsequent act, it is made the duty of the Overseers of the Poor to enforce the provisions of this statute in the manner therein prescribed, whenever any violation thereof within their respective towns comes to their knowl- edge." It is the duty of the Justice, if a sufficient license to author- ize such trading be not produced to him, and the fact of tra- ding be proved, either by the confession of the person appre- hended, or the oath of competent witnesses, to convict the of- fender of such offence against the statute as is confessed or proved ; and to issue his warrant on each conviction, direct- ed to some Constable of the county in which the conviction is had, commanding him to cause the sum of twenty-five dollars, with costs not to exceed five dollars, to be forthwith levied, by distress and sale, at public vendue, of the goods, wares, and merchandize of the offender.' § 293. Warromt to collect a Penalty from a Hawker or Pedler. County, ss : To any Constable of said County, greeting : Whereas A. B. has been this day, upon competent testimo- ilE.8.6T6,§8. >1E.8.676,§9. > Laws of 1840, chap. 70, §3. 798 NEW-TOEK JUSTIOE. ny, [or, upon his own confession,] duly convicted before me, J. H. B., a Justice of the Peace of the said county of [herein- sert the offence, the date, and the a/rUcles sold^ for which of- fence he was adjudged by me to forfeit the sum of twenty- five dollars ; And whereas, the costs of his conviction were fixed by me at \not exceeding jvve\ dollars ; which forfeiture and costs, the said A. B., although duly notified thereof, has not paid : These are therefore to command you to cause the said sum of twenty-five dollars, and the said sum of dollars, costs, to be forthwith levied by distress and sale, at public vendue, of the goods, wares, and merchandize of the said A. B., and to bring the moneys so collected before me at my oflice in the town of , in said county. Given under my hand, this day of 18 . J. H. B., Justice of the Peace. The moneys collected by virtue of this warrant, exclusive of costs, are to be paid by the Justice to the overseers of the poor of the town in which the offence was committed.' In cases of prosecutions under this statute, for the recovery of the penalties thereby given, no costs are to be allowed to the defendant, if it appears that, before the commencement of the prosecution, he refused to produce his license, or to dis- close his name when lawfully required ; nor, in such case, is he entitled to maintain any action against the person prose- cuting him, or the constable or other persons by whom he may have been apprehended, or the Justice by whom any warrant or other process may have been issued against him, or before whom he may have been tried,, for any of their acts in so prosecuting, apprehending, or trying him.' Every per- son who is sued for instituting any proceedings under this statute, or for doing any matter or thing pursuant to its pro- visions, may plead the general issue, and give the special mat- ter in evidence ; and, if the plaintifi" fails in establishing his case, the defendant is entitled to recover treble costs." ISTo suit or prosecution for the recovery of the penalties im- posed by this statute can be maintained, imless it appears to be brought within sixty days after the commission of the of- fence charged.* 1 1 E. S. 676, § 9. Md. § 12. » li § 10. • Id. § 11. COLLECTION OF FINES FOB NOT WOEKINQ ON HIGHWAYS. 799 Fees. The fees allowed by law for seiwices under this statute are the same as are allowed in civil actions for like services, but they can in no case exceed five dollars.' The following services, however,, do not seem to be provi- ded for by the fee bill in civil suits : To Justices.^l -^ warrant of commitment, nineteen cents. To Gonstahles.''] Arresting and committing any person pur- suant to any process, fifty cents ; Mileage, going only, for each mile, six cents. CHAPTER Xy. OF HIGHWAYS AND ROADS. It is proposed to consider, in this Chapter, only those pro- visions of the statutes relative to highways, roads and bridges, which regulate the powers and duties of Justices of the Peace. A consideration of the powers and duties appertaining to the ofiBces of overseers and commissioners of highways would be foreign to the scope of this work. 1. COLLECTIOlf OF FINES FOR NOT WORKING ON HIGHWAYS. The fine for a refusal or neglect to appear and work, when notified by an overseer of highways, is one dollar for each day, and twelve and a half cents for every hour any person or his substitute may be in default. Every person, or substitute, re- maining idle, or not working faithfully, or hindering others from work, is liable to be fined one dollar for each offence. If a person, required to furnish a team, carriage, man, or imple- ments, neglects or refuses to comply, he may be fined three ■2E.8.480,§1; lld.5T6,§». ' Id. 64T, § 40. a 2 id, 63T, § 29. 800 NEW-TOEK JUSTICE. dollars for each day, for wholly omitting to comply -with the requisition ; and one dollar for each day, for omitting to fur- nish a cart, wagon, or plough, or a pair of horses, or oxen, or a man to manage the team. Every overseer of highways is required to make complaint, on oath, to one of the Justices of the Peace of the town, within six days after any person asses- sed and notified is guilty of any refusal or neglect, for which a penalty or fine is prescribed, unless some satisfactory excuse be rendered.' Corporations are liable to the same penalties as individuals, for every day's work required, and for every default of any substitute sent by them.' § 294. Gonvplavnt against a Person for refusing to WorJc. County, Town of ' , f ^®' . I, 0. P., Overseer of Highways for road district number , in said town, hereby make complaint on oath to G-. H., a Justice of the Peace of said town, that I gave Richard Eoe, who resides in said district, and is assessed to work on highways therein, twenty-four hours' previous notice, to ap- pear with a shovel, on the day of instant, at 8 o'clock, A. M., at the dwelling house of E. P., for the pur- pose of working on the highways in said district, under my direction as such Overseer ; and that the said Richard Roe neglected to appear, either in person, or by an able bodied man as a substitute, and has also neglected to pay the com- mutation money for said work, \or, appeared, pursuant to no- tice, but worked only hours, and then departed ; or, appeared, pursuant to notice, but remained idle, or, did not work faithfully, or, hindered others from working ;] and has not rendered any satisfactory excuse to me for such neglect, \or, conduct.] 0. P., Overseer. Sworn to before me, this ) day of , 18 , j G. H., Justice of the Peace. §295. Corwplavnt agaitist a Person for notfurnishing a Team. County, I gg. Town of , S ■ I, O. P., Overseer of Highways for road district number > 1 E. 8. BIO, %% 88 to 41. » Laws of 1887, chap. 481. COLLECTION OF FINES FOE NOT WOEKING ON HIGHWAYS. 801 , in said town, hereby make complaint to G. H., a Justice of the Peace of said town, that I gave to John Jones, who resides in said district, and is assessed to work days on the highways therein, and has a cart, [or, wagon, or, plough,] with a pair of horses, [or, oxen,] and a man to man- age them, and who has not commuted for his said assessment, twenty-four hours' previous notice, to furnish, on the day of ,18 , at 8 o'clock, A. M., at the house of E. F., in said district, a wagon with horses, [or, a cart with a yoke of oxen,] and a man to manage them, for the purpose of work- ing one day on the road in said district, under my direction as such Overseer ; and the said Richard Eoe has neglected to furnish such wagon and horses, [or, cart and oxen,] and a man to manage them, and has also neglected to pay the commuta- tion money for said work, and has not rendered any satisfac- tory excuse to me for such neglect. Sworn, &c., [as m § 29i.] Any other Form of complaint, if required, may very easily be prepared from either of the foregoing Forms. The overseer is the judge of the delinquency of any party. The Justice to whom any complaint is made, must forth- with issue a summons, directed to any constable of the town, requiring him to summon the delinquent to appear forthwith before him, at some place to be specified in the summons, to show cause why he should not be fined according to law for such refusal or neglect ; which summons must be served per- sonally, or by leaving a copy at his personal abode." § 296. Summons for refusing to worh. Town of , -\ County, j To any Constable of said town, greeting : Whereas, complaint on oath has been made before me, G. H., a Justice of the Peace of said town, by 0. P., Overseer of Highways in road district number in said town, that Eichard Eoe, who resides in said district, and is assessed for highway labor, and has been duly notified to perform such work, has neglected to appear in pursuance of such notice, either in person, or by an able bodied substitute, and perform such labor, [or, as m% 294 :] You are therefore hereby com- manded, in the name of the people of the State of New- York, to summon the said Eichard Eoe forthwith to appear befor ^ 1 8 Johnson, 474; 10 id. 470. » 1 E. 8. 610, § 42. 52 802 NBW-TOEK JTTSTICE. me, at my office in. said town, to show cause why he should not be iined according to law, for such refusal or neglect, as in said complaint alleged. Given under my hand, at , this day of 18 . G. H., Justice of the Peace. A summons against a corporation may be issued for any number of penalties incurred previous thereto, and such pro- cess may be served in the manner provided for the service of a writ or summons issued out of a Court of Itecord against a corporation.' As this proceeding is a summary one, the officer serving the summons should iise reasonable diligence to find the per- son proceeded against, in order that he may make a personal service. But a service by copy is legal. If the defendant does not appear, the Justice must, upon proof of service of the sum- mons, impose the fine as a matter of course. § 297. Retwrn of Constable. Personally served, [or, served by leaving a coj)y at the per- sonal abode of the within named Eichard Eoe,] June 1st, 18 . K. F., Constable. If, upon the return of the summons, no sufficient cause is shown to the contrary, the Justice must impose such fine as is provided for the offence complained of, and forthwith issue a warrant, under his hand and seal, directed to any constable of the town where the delinquent resides, commanding him to levy such fine, with the costs of the proceedings, of the goods and chattels of such delinquent." § 298. Conviction endorsed on the Comjflaint. Town of ' U= . County, \ ®^ • The within named Richard Roe, having been duly sum- moned to appear before me, G. H., the Justice within named, to show cause why a fine should not be imposed upon him for the offence set forth in the within complaint, and no sufficient cause having been shown by the said Richard Rob to the con- ■ trary, I do impose a fine of dollare, \oi\ as the case may ' Laws of 1887, chap. 431, § 4; ante, p. 181. = 1 E. 8. 610, § 48. COLLECTION OF FETES FOE NOT WOEKING ON HIGHWAYS. 803 ie,] upon the said Eichard Eoe, for the said offence, and do fix the costs of this proceeding against him, at dollars and cents. § 299. Warrant to collect a Fine. Town of 5 I • County, j To any Constable of said town, greeting : "Whereas, complaint was made to me, G. H., a Justice of the Peace of said town, by O. P., Overseer of Highways for road district number , in said town, that Eichard Eoe, who was assessed, &c. ; [recite, as in the complaint y] Where- upon a summons was issued by me, requiring the said Eich- ard Eoe to appear before me at my office in , aforesaid, forthwith, to show cause why he should not be fined for such neglect, [or, refusal, or, as the case may he y] which summons was duly served and returned to me ; and the said Eichard Eoe not having shown any sufficient cause to the contrary, I have imposed a fine of dollars on him for his offence, complained of as aforesaid, and fixed the costs of the pro- ceedings on said complaint at dollars and cents : Ton are therefore hereby commanded to levy the said fine and costs, of the goods and chattels of the said Eichard Eoe, and bring the said moneys before me without delay. Witness my hand and seal, this day of 18 G-. H., Justice, [l. s.J The question, whether the complainant is an overseer of high- ways of the town, is a jurisdictional fact, and maybe inquired into in an action of trespass against him for taking property on such a complaint.' No action will lie against a Justice or constable, for obey- ing the requirements of this statute. They are mere minis- terial officers, having no judicial or discretionary power, and are, therefore, not responsible for issuing or executing pro- cess directed by the authority of persons having jurisdic- tion over the subject matter.'' The constable to whom the warrant is directed must forth- with collect the fine, and pay it over to the Justice by whom the warrant was issued, who must pay it over to the overseer who entered the complaint.' The warrant is as summary as 1 5 Denlo, 103, « 3 Johnson, 474 ; 9 id. 229. M E. 8. Bll , § 44. 804: NEW-TOEK JUSTICE. the other proceedings, and no property is exempt from seizure tinder it. The penalties collected from corporations are to be paid over by the constable to the commissioners of highways of the town.' 2. RE-ASSESSMENT OF DAMAGES FOE LAYING OUT HIGHWAYS. Any person conceiving himself aggrieved by, or the com- missioner or commissioners of highways who are dissatisiied with, any assessment made for the laying out, altering or dis- continuing any road or highway, in whole or in part, may, within twenty days after the filing of the assessment, signify the same by a notice in writing, which is to be served on the town clerk, and on the opposite party, that is, the persons for whom the assessments were made, or the commissioner or commissioners of highways, as the case may be. This notice must ask for a jury to re-assess the damages, and must specify a time, not less than ten nor more than twenty days from the filing of the assessment, when the jury will be drawn at the clerk's office of an adjoining town of the same county, by the town clerk thereof, and must be served upon the opposite party within three days after its service on the town clerk_ It may be served personally, or left at the dwelling house of the party, with some person in charge thereof, or, if there is no such person, or the house is closed, then by fixing the same upon the outer door of the house.' Three days' notice of the time and place of the drawing of the jury must also be given to the clerk of the adjoining town, who, at the appointed day and place, must deposit in a box the names of all such per- sons, then residents of his town, whose names are on the last list filed in his office of those selected and returned as jurors in Courts of Record, as are not interested in the lands through which the road is located, nor of kin to either or any of the parties. He must then draw from the box the names of twelve persons, and make a certificate of their names, and of the purposes for which they were drawn, and deliver the same to the party first asking for the re-assessment.^ I Laws'of 1837, chap. 481, § 4. ' Id. § 4. 3 Laws of 184T, chip. 46S, § 8. EE-ASSESSMENT OF DAMAGES FOE LAYING OUT HIGHWAYS. 805 The party receiving the certificate must, within twenty-four hours thereafter, deliver the same to a Justice of the Peace of the town wherein the damages are to be assessed. The Justice receiving the certificate must immediately issue a summons to one of the constables of his town, commanding him to summon the persons named in the certificate. The summons must also specify a time and place at which the persons summoned are to meet ; but no such meeting can be had within twenty days from the time of filing the assessment of damages in the town clerk's office by the commissioner or commissioners of highways.' § 300. Swmmons hy the Justice. County, ) . Town of , r^- To any Constable of the town of , in said county, freeting : "on are hereby commanded to summon E. B., M. T., O. E,., &c., &c., \name all the jurors drawn^ jurors regularly drawn by E. P., Town Clerk of the town of , to re-assess the damages for laying out [or, as the case may 5e,] the highway, [descHhe the highway, as in the certificate of drawing^ to meet at the house of O. P., in the town of , aforesaid, on the day of next, \or, instant,] at o'clock in the noon of that day, for the purpose above specified. And have you then there this precept. Given under my hand, this day of ,18 G. H., Justice of the Peace. At the time and place mentioned in the summons, the Jus- tice must draw, by lot, six of the persons summoned, who must be free from all legal exceptions. The persons so drawn constitute a jury to re-assess the damages, and must be sworn by the Justice well and truly to determine and re-assess such damages as shall be submitted to their consideration." § 301. Oath to the Jurors. Ton will well and truly determine and re-assess such dam- ages as shall be submitted to your consideration ; So help you God. 1 Laws of 1847, chap. 455, § 5. » id. § 6. 806 NEW-TOKK JUSTICE. After they are sworn, the jurors must view the premises, and hear the parties, and such witnesses as they may offer. The witnesses must be sworn, in presence of the jury, by the Justice,' and the oath to be administered to them may be in the following form : § 302. Oath to Witnesses. The evidence you shall give upon this re-assessment of damages for laying out [or, as the case may he] the highway in question, shall be the truth, the whole truth, and nothing but the truth ; So help you God. [ Vary, when necessa/ry, as in % 58 and § 59, ante, p. 299.] The Justice has no authority to control or interfere with the deliberations or investigations of the jury. His duty is per- formed when he has complied with the requirements of the statute. The jury are to deliver their verdict in writing, which the Justice must certify ; and it is then to be delivered to the commissioners of highways of the town." The verdict is final.^ § 303. Yerdict of the Jury. County, ) . Town of , p^ • We, the undersigned, the jurors drawn, summoned and sworn, to re-assess the damages for laying out [or, as the case may he,~\ the highway, [describe the highway,'} in pursuance of the order of E. F., Commissioner of Highways in and for the town of , bearing date the day of j 18 , having viewed the premises, and heard the parties, and such witnesses as were offered before us, do hereby re-assess the damages aforesaid, as follows : To A. B., the sum of dollars, for the damages sustained by him by reason of the laying out [or, as the case may be] the said highway ; to C. D., the sum of, &c., [specify all the parties to whom damages may be awarded.] In witness whereof, we have hereunto set our hands, this day of , 18 . E. B., ) M. T., y Jurors. 0. E., ) &c., &c. 1 Laws of 184T, oiop. 465, § 6. s id. Md. EEMOVAL OF ElJ-CEOACBnVIEITTS FEOM HIGITWATS. 807 § 304. Certificate of the Justice. County, ) . Town of , P^ ■ I, G-. H., one of the Justices of the Peace of the said town, do certify that the above is the verdict of the jury summoned by my summons, and drawn and sworn by me to determine and re-assess tlie damages for the laying out [w^, as the case may Je] the highway mentioned in the said verdict. Given under my hand, this day of , 18 . G. H., Justice. 3. ASSESSMENT OF DAMAGES FOR LAYING OUT PRIVATE ROADS. The duties of Justices in regard to the assessment of damages for laying out or altering any private road, are identical with their duties in regard to the re-assessment of damages for lay- ing out, altering, or discontinuing any highway, above con- sidered.' The Forms there given can be easily varied, by a reference to the statute, as circumstances require. 4. REMOVAL OF OBSTRUCTIONS AND ENCROACHMENTS FROM HIGHWAYS. Whoever obstructs any highway, or fills tip or places any obstructions in any ditch constructed for draining the water from any highway, is liable to forfeit, for every such offence, the sum of five dollars." The above provision relates only to obstructions of high- ways or public roads, and not to obstructions of private roads.' A plea of title is not a bar to an action for the penalty.* Any one who sustains special and particular damages or injury by reason of the obstruction of a highway, may main- tain an action against the party causing the obstruction." Anything that disturbs the servitude or easement of way of a public road, is an obstruction. All persons, in the prosecution of their lawful business, have the right to use a highway for such purpose, but they cannot obstruct it un- necessarily or unreasonably. The piling of lumber, stones, bricks, or saw-logs ; making excavations ; blasting rocks ; un- loading wagons or drays ; and the stopping of stages nnneces- I Laws of 184T, chap. 465, § 10. < T "Wenaell,^45, 291. 2 1 E. 8. 621, § 102. » 9 id. 816 ; 8 Barbonr, 42. 3 9 Jolmson, 849. 808 NEW-YOEK JtrSTIOE. sarily or unreasonably ; are all obstructions, for which the persons causing them are liable.' The process issued to compel the appearance of the defend- ant in an action to recover the penalty given by the statute for the obstruction of a highway, must be endorsed as follows : " According to the provisions of the statute concerning the obstruction of highways and encroachments thereon, 1 Revised Statutes, Part I, Chapter XYI, Title 1, Article 5, § 102.'" Whoever injures any highway, by obstructing or diverting any creek, water-course, or sluice, or by drawing logs or tim- ber on the surface of any road or bridge, or by any other act, forfeits, for every such offence, treble damages.' In every case where a highway has been laid out, and the same is encroached upon by fences, erected by any occupant of the land through which such highway runs, the commis- sioners of highways of the toMTi, must, if in their opinion it be deemed necessary, order such fences to be removed, so that such highway may be of the breadth originally intended. The commissioners making the order, must cause the same to be reduced to wi-iting, and signed. They must also give no- tice in writing, to the occupant of the land, to remove such fences within sixty days. Every such order and notice must specify the breadth of the road originally intended, the extent of the encroachment, and the place or places in which the same is.' The description of the encroachment in the or- der and notice should be full and precise, and the ex- tent of the encroachment be specified, so that the pai-ty served with the notice may be enabled to comply with the order.' Where there is more than one commissioner in a town, all must meet and deliberate on the subject, and a majority may make the order." If the order is not signed by all the com- missioners, it should appear that all met and deliberated upon the subject of the order, or were duly notified to attend a meeting of the commissioners for the purpose of deliberating thereon.' ' 8 Barl)Our, 42 ; 2 Mosaachuaetta Rop. 142 ; U ° 2 HiU, 472. Wendell, 250. ° 9 Johnson, 859 ; 22 Wendell, 132 ; 1 E. S. n7id. 85;2K. 8. 483, §7. « 625,§126. ' 1 Id. 620, § 180 ; 28 Wendell, 446. ' Id. * 1 K. 8. 521, § 108. KEMOVAL OF ENCEOACHMENTS FEOM HIGHWATS. 809 The commissioners have no right to open a road, or to direct it to be opened, until after the sixty days' notice has been given to the owner to remove his fences ;' and, if sued for opening such road, they must show actual notice." If the removal of the encroachment, as required by the order and notice, be not made within sixty days after the ser- vice of the notice, the occupant to whom the same may be given forfeits the sum of fifty cents for every day, after the expiration of that time, during which the fences continue un- removed ; and the commissioners of highways may remove or cause to be removed such encroachment, and the occupant of the premises must pay to the commissioners of highways all reasonable charges therefor, to be collected in the manner provided by law for collecting penalties for refusing or neg- lecting to perform highway labor, &c/ This provision does not do away with the common law remedy of abatement of a nuisance by the act of individuals, or abolish the remedy by indictment ; the remedy under the statute is only cumula- tive.* If the occupant to whom the notice to remove an encroach- ment is given, denies such encroachment within five days, the commissioners, or some one of them, must apply to some Jus- tice of the Peace of the county, for a precept directed to some constable of the town, to summon twelve freeholders thereof, to meet at a certain day and place, to be specified in such precept, and not less than four days after the issuing thereof, to enquire into the premises. The constable to whom such precept may be directed, must give at least three days' notice to the commissioners of highways of the town, and to the oc- cupant of the land, of the time and place at which such free- holders are to meet." The complaint may be made by one commissioner." The notice to the commissioners and occupant may be given by the constable verbally, or it may be in vsrriting. 1 2 Cowen, 424. < 14 Wendell, 250. 3 6 Wendell, 634. » 1 E. 8. 622, § 105 ; Law3 of 1840, chap, i ' 1 E. S. 522, § 104 ; Laws of 1840, chap. 800, § 2. i 1 ; ante, pp. 802, 808. « 18 Johnson, 460. 810 NEW-TOKK JUSTICE. § 305. Precejpt to summon Freeholders^ in case of an Encroachment. County, ) Town of , p® • To any Constable of said town, greeting : You are hereby commanded to summon twelve freeholders of the said town of , to meet at the house of O. P?, in said town, on the day of instant, at o'clock in the noon, to enquire whether any encroachment has been made, and by whom, on the highway running by [or, through] the land now occupied by C. D., in said town ; and to give at least three days' notice to E. F., the Commissioner of Highways of said town, and to C. D., of the time and place at which the said freeholders are to meet ; and have you then there the names of the freeholders summoned by you, and this precept. Given under my hand, this day of , 18 . G. H., Justice of the Peace. The Justice should not annex to this precept a list of the names of persons to be summoned,' nor can he pass upon the qualifications of the persons returned ;" his duty is simply to swear the jury and witnesses. On the day specified in the precept, the jury so summoned must be sworn by the Justice, well and truly to enquire whether any such encroachment has been made, and by whom. Such witnesses as may be produced by either party must also be sworn by the Justice ; and the jury must hear the proofs and allegations which may be produced and sub- mitted. * §306. Oath to Jurors. You, and each of you, do solemnly swear, that you will well and truly enquire whether any encroachment has been made, and by whom, on the highway now in question. § 307. Oath to Witness. You do swear, that the evidence you shall give in relation to the encroachment on the highway now in question, shall be the truth, the whole truth, and nothing but the truth. # " 2 Hill, 472. » 1 E. S. 522, § 106. » 8 WondeU, 468. EEMOTAL OF ENCROACHMENTS FKOM HIGHWAYS. 811 If the jury find that any encroachment has been made, they must make and subscribe a certificate in writing, stating the particulars of the encroachment, and by whom it is made. This certificate should state, clearly and precisely, the partic- ulars of the encroachment, so that the occupant may be able to obey the order without any mistake.' § 308. Certificate of Jury. County, 1 . Town of , P®- We, the undersigned, freeholders of said town, having been summoned and assembled, on the day of the date hereof, at the house of O. P., in said town, pursuant to a precept issued on the day of , 18 , by G. H., a Justice of the Peace of the said town, and having been duly sworn by said Jus- tice, on the application of E. F., the Commissioner [or, A. B., C. D., and E. F., the Commissioners] of Highways in said town, to inquire whether any such encroachment on the pub- lic highway in said town, as is specified in the order of said Commissioners, dated the day of ; 18 , has been made, and by whom ; and having heard the proofs and alle- gations produced and submitted, do certify,* that such en- croachment has been made by C. D., the present occupant, \or, by E. T., the former occupant ;] And we hereby further certify, that the particulars of such encroachment are as fol- lows, to wit : That such encroachment commences on the north line of said road, \insert the description,] and that the rail fence along the land now in the occupation of the said C. D., is upon and in the public highway, and is an encroach- ment thereon. In witness whereof, we have hereunto subscribed our names, this day of , 18 . S. T., M. N., P. Q., &c.. Jurors. The finding of the jury is conclusive evidence of the en- croachment." The certificate must be filed in the ofiice of the town clerk.' The occupant of the land, whether the encroachment shall have been made by him, or by any former occupant, must remove his fences within sixty days after the filing of the cer- 1 9 Johnson, 369 ; 22 Wendell, 182; 2 Hill, ' 13 Johnson, 460. 472. s 1 E. S. 522, § 107. 813 NEW-TOEK JUSTICE. tiflcate. If he does not remove them, he is liable to forfeit fifty cents for every day after the expiration of the sixty days, that the encroachment remains.' But he cannot be required to re- move them, except between the first day of April and the first day of JSTovember.' The occupant must also, within ten days, pay the costs of the inquiry.' The Justice has power to fix the amount of the costs ; and his act in doing so is a judi- cial one, for which he cannot be held responsible in a civil suit.* If the costs are not paid within that time, the Justice must issue a warrant to collect them.' The warrant must be under the hand and seal of the Justice, and be directed to some constable of the town where the occupant resides, com- manding him to levy the costs of the proceeding, of the goods and chattels of the occupant." § 309. Wwrra/nt to collect Costs of Proceedings wpon cm Encroachment. The People of the State of J^ew-Tork, to any Constable of the town of , in the county of : Whereas, E. F., the Commissioner of Highways of the said town, did, on the day of > 18 , make and subscribe an order or certificate for the removal of a certain fence, as an encroachment upon the highway running through land in the said town, in the occupation of C. D., specifying the breadth of the road, and the extent and place of the en- croachment ; And whereas, said encroachment having been denied by said occupant, a jury of twelve freeholders was, upon the application of said Commissioner, by a precept issued by me, duly summoned to enquire into the premises ; and the said jury, being duly assembled and sworn, after due notice to said occupant, as required by law, and having heard the proofs and allegations produced and submitted by the parties respectively, certified in writing, that an encroachment had been made by C. D., the occupant of said land ; And where- as, the costs of said inquiry amount to dollars and cents, which remain unpaid : Tou are, therefore, commanded to levy the said costs, ot the goods and chattels of the said C. D., and bring the same before me without delay. Witness my hand and seal, the day of , 18 . C H., Justice, [l. s.J If the jury find that no encroachment has been made, they ' 1 R. 8, 622, §§ 104, 107. * 12 BarboviT, 608. » Id. §109. • 1 E. B. 622, § 107. Md.§ 107. » id. 610, §43. REMOVAL OF ENCEOAOHMENTS FEOM HIGHWAYS. 813 must SO certify ; and they must also ascertain and certify the damages which the then occupant has sustained by reason of the proceedings, which, together with the costs, must be paid by the Commissioners.' § 310. Certificate where no Microaohment is fowid. County, ) . Town of , p^ • "We, the undersigned, \as in % 308, to the *, and then add:'\ that no such encroachment has been made on the said high- way ; and we have ascertained and do certify the damages of C. D., the occupant of the land through [or, by] which the said highway passes, by reason of the proceedings of the said Commissioners against him, to be dollars. In witness, &c., [_as in § 308.] If the jury disagree, another precept may be issued by the Justice, and another jury called.' Fees. The fees for services under these statutes are as follows : To Justices.^~\ For a summons, twenty-five cents ; For a precept to summon a jury, thirty-seven and a half cents ; For swearing a jury, twenty-five cents ; For swearing a witness, six cents ; For an execution or warrant, to collect costs, nineteen cents. To Constables.*'] For serving a summons, twelve and a half cents ; For serving an execution, or levying any fine or penalty pursuant to any warrant, five cents for every dollar collected to the amount of fifty dollars ; and two and a half cents for every dollar collected over fifty dollars ; For every mile, going only, when serving a summons, war- rant, or execution, six cents, to be computed from the place of abode of the defendant, or where he may be found, to the place where the precept is returnable ; For summoning a jury to re-assess the damages for laying out, altering or discontinuing a road or highway, or to assess the damages for laying out or altering a private road, if from 1 1 E,S. 522, § 108. ' 2 E. 8. 63T, § 29. > 22 ■Wendell, 132. « id. 64T, § 40; id. 26B, § 228. 814 NEW-TOEK JTJSTICB. the same town, one dollar; if from an adjoining town, two dollars/ To Jurors.'l Each juror, attending and serving on a jury- to re-assess the damages for laying out, altering or discontin- uing a highway, or to determine the necessity of, and assess the damages for, laying out or altering a private road, if from the same town, fifty cents ; if from an adjoining town, one dollar ; . Each juror, attending in pursuance of a summons, but not serving on such jury, if from the same town, twenty -five cents ; if from an adjoining town, fifty cents. No compensation is allowed to any juror for examining and certifying in regard to the necessity and propriety of any highway being laid out, altered, or discontinued, except as aforesaid, nor for appearing to make such examination. Kings, Queens and Suifolk counties, are excepted from the operations of this provision.' For their services in determining upon an encroachment, jurors are entitled to twelve and a half cents.' To Town Clerks.''] For drawing and certifying a jury, fifty cents. CHAPTER XYI. OF LANDLORD AND TENANT. 1. DESERTED PREMISES. If any tenant, being in arrear for rent, deserts the demised premises, and leaves the same unoccupied and uncultivated, without any goods thereon subject to distress,' to satisfy the 1 Laws of 1847, cbap. 465, § 19. >2 K. S. 648, § 8T iiii 'Lawsof lS47,«hiii). 465. §19. » Laws of 1846, chap. 180, §§14, 85. ' Distress for rent Is nljolishod by the act of May 18th, 1846, (Laws of 1846, chap. 274.) But that \ act does not repeal this Statute. ^ DESERTED PEEMISE3. 815 arrears of rent, 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 must 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 that five nor more than twenty days after the date thereof.' § 311. Petition and Affidawit, wliere Demised Premises a/i^e deserted. To S. T., one of the Justices of the Peace of the county of : The petition of A. B., of , in said county, respectfully showeth : That he demised to 0. D., of, &c., the premises lately occupied by the said C. D., on street, in the vil- lage of , in said county, for the term of one year from the day of , one thousand eight hundred and , at the yearly rent of dollars, payable quarter yearly ; that the said C. D. entered into the possession of the said premises, as tenant thereof, by virtue of the said demise, and is now indebted to your petitioner in the sum of dol- lars, for one quarter's rent of the said premises, due the day of ) 18 ; and that he has deserted the same, leav- ing the said rent in arrear, and the premises unoccupied and uncultivated. Your petitioner, therefore, requests that you go upon and view the premises, and, if satisfied, upon such view, that the premises are so deserted, that you aihx a notice in writing upon a conspicuous part thereof, requiring the tenant to ap- pear and pay the said rent. A. B. Dated the day of , 18 . County, ss : A. B., of said county, being duly sworn, says, that the facts set forth in the above petition subscribed by him, are true. Sworn, &c., \_as m§ 294.] A. B. § 312. Notice to Tenant who has deserted the Demised Premises. To C. D., of : Ton are hereby notified, that, at the request of A. B., your landlord, and upon due proof made to me that he had demised J2E. S. 512, §24. 816 NEW-TOEK JTJSTIOE. to you the premises upon which this notice is affixed, and that you were in arrear for one quarter's rent, amounting to dollars, and that you had deserted the premises, leaving such rent in arrear, and had left them unoccupied and uncultiva- ted, I have viewed the said premises, and am satisfied, upon such view, that the same have been so deserted : Therefore, you are hereby required to appear, on the day of ,18 , at o'clock, in the noon, at the place where this no- tice is affixed, and pay the rent due, or the landlord will be put in posssession of the premises. Dated the day of , 18 . S. T., Justice of the Peace. At the time specified in the notice, the Justice must again view the premises. If the tenant appears and denies that any rent is due to the landlord, all proceedings must cease. If, upon the second view, the tenant, or some one for him, does not appear and pay the rent in arrear, and there is not suffi- cient distress on the premises to satisfy the rent, the Justice may put the landlord into j, ossession of the demised premises ; and any demise of the premises to such tenant becomes from thenceforth void.' Distress for rent having been abolished, it is, probably, no longer necessary that the landlord should pro7e that there are no goods upon the premises subject to distress, or that that fact should be ascertained by the Justice ; it being sufficient that the tenant deserts the premises, and leaves them unoccu- pied and uncultivated. The language of the statute, has, how- ever, been given. The tenant, if he is dissatisfied with the proceedings before the Justice, may, at any time within three months after pos- session of the premises is delivered, appeal to the County Court of the county within which the premises are situated. He must serve a written notice of appeal upon the Justice, and give security to be approved by him, to pay to the land- lord all the costs of the appeal which may be adjudged against the tenant upon the appeal. The Jiistice must re- turn the proceedings had before him, to the County Court, within ten days after the secui-ity and notice are given, and give notice to the landlord of the appeal." » 2 E. S. 612, § 20. " id § 26. DESEETED PREMISES. 817 § 313. Bond on Appeal. Know all men by these presents, that we, C. D. and E. F., are held and firmly bound unto A. B., \_as in % 283, to the *, the penalty and sureties to le approved hj the Justice, and then add .•] Whereas S. T., Esquire, a Justice of the Peace of the county of , affixed, upon a conspicuous part of the premises hereinafter described, a notice of which the following is a copy, [here insert the notice;'] And whereas also, afterwards, to wit, on the said \here state the time,] the said Justice again viewed the said premises, and put the said A. B. into posses- sion of the same : Now, therefore, (that the above bounden C. D. may appeal from the said proceedings of the said Jus- tice to the County Court of said county, pursuant to the pro- visions of the Revised Statutes,) the condition of this obliga- tion is such, that if the said 0. D. shall pay to the said A. B. all costs of said appeal which may be adjudged against the said C. D. on said appeal, then this obligation to be void ; otherwise, offeree. C. D. [l. s.] Sealed and delivered in my presence, ) E. F. [l. s.] by whom the penalty and sureties are >- approved. S. T., Justice, &c. ) § 314r. WoUce to the Landlord of the Appeal. ToA. B.: Sir : You will take notice, that C. D., upon giving the re- quired security, has this day appealed to the County Court of the county of , from my proceedings at your instance, and by which you have been put in possession of the premi- ses situate in , in said county, and demised by you to the said C. D., for the term of years. Dated this day of , 18 . Tours, &c., S. T., Justice. § 315. Record of Justice, where Premises a/re Deserted. State of New-York, ) g^. County, j Be it remembered, that on the day of , one thousand eight hundred and , A. B., by petition pre- sented to me, set forth that he had demised to C. D., &c., \as in petition^ and for which there was then due to the said A. B., for arrears of rent for the same, the sum of dollars, and that C. D. had deserted the premises, leaving the said rent in arrear, and left the premises unoccupied and unculti- vated ; Whereupon, at the request of the said A. B., and up- on due proof of the facts set forth as above, I did go upon and 53 818 NEW-TOEK JUSTIOE. view the premises, and was satisfied, upon such view, that the premises were so deserted ; Therefore, a notice in writing was affixed by me upon the front door of tho dwelling house on said premises, requiring the said C. D. to appear on the day of ,18 , at o'clock in the noon, at the place where the said notice was so affixed, and pay the rent due ; At which time and place I again viewed the premises, and, the tenant not appearing and denying that any rent was due to the landlord, nor he, nor any person for him appearing to pay the rent in arrear, I did put the said A. B., the land- lord, in possession of the premises above mentioned, free and clear of any demise to the said C. D., the same being by law from thenceforth declared void. Witness my hand, this day of , 18 . S. T., Justice, &c. -2. SPECIAL PROCEEDIlfGS FOR BE-ENTET. In all cases where the right of re-entry is reserved and giv- en to a grantor, or lessor, in any grant or lease, in default of a sufficiency of goods and chattels whereon to distrain, such re-entry may be made at any time after default in the pay- ment of the rent, provided fifteen days' notice in writing of the intention to re-enter, be given by the grantor or lessor, his heirs or assigns, to the grantee or lessee, his heirs, executors, administrators, or assigns ; and this, notwithstanding there be a sufficiency of goods and chattels to satisfy the rent, provided the same were taken in distress. The notice may be served personally on such grantee or lessee, or by leaving it at his dwelling house on the premises.' § 316. NotiGe of Intention to re-enter. To 0. D.: You are hereby notified, that I shall re-enter the premises known as , in the of , now occupied by you under a demise from me, on the day of next ; you having made default in the payment of the rent for the same. A. B. Dated this ' day of ,18 The mode of re-entry thus provided for does not supersede that under the Revised Statutes, which is next to be consid- ered. The former is merely an additional mode." > Laws of 1646, chap. 274. ' Barbour, 816. REMOVAL OF A TEMAITT. 819 3. StTMMAET PROCEEDINGS TO KECOVER POSSESSION OF DE- MISED PREMISES. Any tenant or lessee at will, or at sufferance, or for any part of a year, or for one or more years, of any houses, lands, or tenements, and tlie assigns, under-tenants, or legal repre- sentatives of such tenant, or lessee, may be removed from such premises, by any Justice of the Peace of the city or town where such premises are situated, or by any one of the Justices of the District Courts of the city of New- York, in the manner hereinafter prescribed, in the following cases : 1. "Where such person holds over and continues in posses- sion of the demised premises, or any part thereof, after the ims -statute applies omy where the conventional relation of landlord and tenant exists, and not where it is created by op- eration of law.' If a tenant for a year holds over, the land- lord may remove him summarily, without any notice to quit/ 2. "Where such person holds over, without such permission as aforesaid, after any default in the payment of rent pm'su- ant to the agreement under which such premises are held, and a demand of such rent shall have been made, or three days' notice in writing, requiring the payment of such rent, or the possession of the premises, shall have been served by the per- son entitled to such rent, on the person owing the same." This notice must be served, either by delivering to the ten- ant to whom it is directed a true copy thereof, and at the same time showing him the original; or, if the tenant be absent from his last or usual place of residence, then by leaving a copy of the notice at such place, with some person of mature age residing on the premises.' § 317. Notice requwmg Payment of the Bent or the Posses- sion of the Premises. To 0. D.: There is now due to me upon your lease of the premises [describe them,'] the sum of dollars, being one 1 2 E. B. 572, § 28, aa amended by Laws of ' 11 id. 616. 1849, chap. 193, § 1. < 2 E. S. 512, § 28, as amended by Laws of a 1 Wendell, 134; 5 Id. 2S1 ; 9 id. 22T ; 4 De- 1849, chap. 198, § 1. nio, 185. Bee 15 Wendell, 236. J /f /^^m^^ » id. ; 2 E. B. 514, § 82. H^ /^*^->- -V / f" 4 5f 820 NEW-TOEK JirSTICE. quarter's {or, j^ear's] rent, and you are hereby required to pay the same within three days from the service of this notice, or to deliver i;p the possession of the said premises to me. Dated this day of , 18 . A. B. This demand may be made of the tenant in possession, and the notice may be served upon him, though he is not the les- see or assignee.' 3. Where the tenant or lessee of a term of three years, or less, has taken the benefit of any insolvent act, or been dis- charged under any act for the relief of his person, from im- prisonment, during such term." 4. "Where any person holds over and continues in posses- sion of any real estate which has been sold by virtue of an execution against such person, after a title under such sale has been perfected." The application for process, under this subdivision, may be made by any person in whom the title is at the time of the ap- plication. The remedy is not limited to the purchaser at the sale. If the defendant in the execution be in the actual occu- pation of the premises, the proceedings may be properly in- stituted against him ; and they may be had against a tenant 'in common, before partition.* Proceedings under this subdivision may also be had against the servant or agent of the debtor, or against a third person who has entered into possession under title derived from the debtor, subsequent to the attaching of the lien of the judg- ment under which the property was sold. The fact that the third person entered under a title so subsequently acquired, must be alleged in the afiidavit.' Any landlord, or lessor, his legal representatives, agents, or assigns, may make oath in writing of the facts which, accord- ing to the provisions of the several subdivisions of the stat- ute just quoted, authorize the removal of a tenant, describing therein the premises claimed, and present the same to the Justice." The affidavit here provided for should make out a 1 14 Wendell, 172. ' 13 Wendell, 29. = 2E.8.61«,.§B8,as amended by Laws of » 20 id. 22. 1849, chap. 198, § 1. » 2 B. 8. 613, § 29. 'Id. EEMOVAL OF A TENANT. 821 plain case, and should show, among other things, that the person intended to be removed is in the occupation of the premises, together with his relation to the landlord.' If the proceeding is under the second subdivision above cited, the affidavit should also show of whom the demand was made, or on whom the notice was served.' But a notice is not neces- sary, if a demand was properly made." If the applicant claims on a holding over by a tenant of his after the expira- tion of a lease, the affidavit should show that the applicant ■ was 'the owner, or entitled to the possession of the premises, at the time of giving the lease." If the affidavit fs iii'ad6 by' an agent, the fact of the agency must be distinctly sworn to ;' but no excuse need be given why it is not made by the land- lord himself." <:?^ ^/:.^ltL^/- e^ ?'Z^ 2 E. S. 514, § 85, na amonded liy Laws of 1849, chap. 193, § 3. 1849, chap. 193, § 8 ; 20 WendeU, 208. ■> Id. B14, § 87. " Ante. p. 293. » Id. " 2 K. S. 514, § 36, as amended by Laws of EEMOVAl OF A TENANT. 829 § 330. Officer's Oath to Tieep Jury, after Evidence gmen. You do swear, that you will well and faitlifully keep, in some private and convenient place, this jury committed to your charge, without meat or drink, water excepted. You shall not suffer any person to speak to them, nor speak to them yourself, unless to ask them if they have agreed upon their verdict, until they have agreed on their verdict, or are sooner discharged by me ; So help you God. If the jury cannot agree, after being kept together for a reasonable time, they may be discharged, and a new jury nominated, and a new precept issued ;' and so, also, if there is a default in the number of jurors on the return of the first precept.' At the request of either party, the proceedings may be adjourned, not exceeding ten days, if the delay is necessary to procure the attendance of witnesses." The Jus- tice must issue subpoenas, and compel the witnesses to appear and testify, in the same manner as in other cases.* If the verdict of the jury is in favor of the claimant, the Justice must issue his warrant, in the same manner as where there is no trial by jury, commanding the oificer to put the claimant in possession.'' The Justice must also enter in his docket the finding of the jury, and render judgment therefor, and include in such judgment costs of such proceedings to the prevailing party, at the same rate of fees allowed by law in civil actions before Justices, and limited in like manner, and must, in the warrant for delivery of possession, or by ex-^ ^cutiffli _issued by himv,direct the collection of such costs." «^>^'' ^*^he Form^'OTwarrants before given can be easily adapted to the case of a trial by jury, by omitting the sentence in the latter part of each, which states that no sufficient cause to the contrary has been shown, and reciting instead the summon- ing and verdict of the jury, the rendition of judgment, and a direction, in the usual form, to levy and collect the costs. The officer to whom the warrant is directed and delivered is required by statute to execute its commands.' The issuing of the warrant cancels and annuls both the 1 2 E. 8. 514, § 88. ' id- § 39. ' 9 Wendell, 227. ' Laws of 1849, chap. 193, § 5 ; B Howard's » 2 E. 8. 615, § 41, Prac. Eep. 21. « id. § 42. ' a K. 8. 615, § 40. 830 NEW-TOEK JUSTICE. lease and the relation of landlord and tenant.' This pro- vision, however, does not operate to annul the lease from its date, but only from the time of the default for which the warrant is issued." (2.) Staying Proceedings. At any time before the warrant is actually issued, the ten- ant, in case of a proceeding on account of the non-payment of rent, may stay the proceedings, either by paying the rent due, and the costs and charges of the proceedings, or by giv- ing security, satisfactory to the Justice, for theirpayment, in ten days, to the person entitled to such vent.' ^/pfn %cm,4i^j/ § 831. Bond under Subdivision 2, to stay Proceedings. Know all men by these presents, that we, C. D. and E. F., are held and firmly bound unto A. B., \_as in § 283, to the *, the penalty and sureties to he approved hy the Justice, and then add .•] "Whereas, certain proceedings have been had, at the in- stance of A. B., against C. D., before S. T., one of the Justi- ces of the Peace of the County of , under the provisions of the statute authorizing the summary removal of a tenantf for the non-payment of rent, and the costs and charges of the said proceedings have been fixed by the said Justice at dollars : Now, therefore, the condition of this obligation is such, that if the said 0. D. shall, within ten days li-om the date hereof, pay to the said A. B. the said costs and charges, and the sum of dollars, rent due him for the use and occupation of [descrihe the premises,'] then this obligation to be void ; else, of force. 0. D. [l. s.] E. F. [l. s.] Sealed and delivered, \as in § 313.] "When the application to the Justice is founded upon the fact that the tenant or lessee has taken the benefit of an insol- vent act, or has been discharged under some act for the relief of his person from imprisonment, the proceedings may be stayed at any time before the warrant is issued, by paying the costs, and giving security, satisfactory to the Justice, for the payment of the rent, to the person entitled to such rent, as it shall become due.* 12E.S.616, §43. s 2 E. 8. 516, § «. "6H1U, 60T. Mi §46. KEMOVAL OF A TENANT. 831 § 332. Securiiy under Subdivision Z,for Bent to heoome due, to stay Proceedings. Know all men, &c., \_as in % 331, to the f, and then add .•] who has taken the benefit of an insolvent act, [or, as the case may he :] Now, the condition of this obligation is such, that if the said C. D. shall punctually pay all rent accruing or to accrue to the said A. B., upon the following premises, namely, [describe the premises,'] when and as the same shall become due and payable, then this obligation to be void ; else, to re- main in force. C. D. [l. s.J Sealed and delivered, [as in § 313.] E. F. [l. s.] "When the application is foimded upon an alleged sale by execution of the premises occupied by the defendant in the execution, the occupant may stay the proceedings, at any time before the warrant for removal is issued, by paying the costs of the proceedings, filing with Justice an affidavit that he claims the possession of the premises by virtue of some right or title acquired after they were sold, or as guardian or trustee for another person, and executing a bond to the applicant for the warrant, in such a penalty and with such sureties as the Jus- tice may approve, conditioned to pay all the costs which may be recovered against him in any action of ejectment that may be brought by the applicant within six months, for the recov- ery of the possession of the premises, and to pay the value of the use and occupation of the premises from the date of the bond to the time the applicant obtains 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 prem- ises during his occupation.' § 333. Affidavit under Subdivision i, to stay Proceedings. County, ss : 0. D., being sworn, says, that he claims, in his own right, [or, as trustee or guardian of E. F.,] the possession of the following premises, namely, [describe them,] which are claimed by A. 13. as purchaser under an execution, by virtue of the following right or title acquired by him in such premises, that is to say : [state the particulars of such right or title.] Sworn, &c., [as in § 294.] C. D. 12E. S. D16, §46, 832 NEW-TOEK JUSTICE. § 334r. Bond vMcier subdivision 4, to stay Proceedings. Know all men by these presents, that we, 0. D. and G. H., are held and firmly bound unto A. B., \as in § 283, to the *, the penalty a/nd sureties to ie cmjproved In/ the Justice, and then add:'] The condition of this obligation is such, that if the said C. D. shall pay all the costs that may be recovered against him in any action of ejectment that may be brought by A. B. against him, the said C. D., within six months from the date hereof, for the recovery of the possession of [describe the premises^ and shall pay the value of the use and occupa- tion of such premises from the date hereof to the time the said A. B. shall obtain possession of the same, by virtue of a recovery in such action of ejectment, and shall not commit any waste or injury to such premises during his occupation thereof, then, this obligation to be void ; otherwise, of force. Sealed and delivered, \as in § 313.] C. D. [l. s.] G.H. [L. s.] (3.) Certiorari. The proceedings of the Justice under this statute may be removed to the Supreme Court by certiorari ;* and, if they are reversed or quashed in that Court, the tenant or lessee can recover against the party making application for the warrant, all the damages and costs he may have sustained." But the proceedings on such application will not be stayed or suspen- ded by such writ of certiora/ri, or by any other writ or order of any Court or officer.' The proceedings may also be removed, by appeal to the County Coiirt. in the same manner, with the like effect, and upon like security, as on appeals in civil actions. But, if the tenant desires to stay the issuing of the warrant or execution, he must give, in addition to the security required on appeal, security to pay the rent accruing or to accrue subsequent to application to the Justice. The appeal will not be allowed, unless such security is given and approved by the County Judge at the time of allowing such appeal, and served on the Justice with the affidavit for appeal.' '2E. S.B16,§4T. Sid. §47. " id. §60. « Laws of 1849, chap. 188, § B. EEMOTAL OF A TENAIiTT. 833 § 335. Affidmit for Appeal to County Court. County, 88 : C. D., \or, A. B.,J of said county, being duly sworn, deposes and says, that on tlie day of , 1 8 , A. B., of , in said county, [or, tMs deponent] made and presented to S. T., Esquire, a Justice of the Peace in and for said county, his affidavit, of which the following is a copy, to wit : [_Insert the affidavit;'] whereupon the said Justice issued his sum- mons, dated the day of > 18 , requiring this depo- nent forthwith to remove from tlie premises in the said affi- davit of the. said A. B. mentioned, or to show cause before the said Justice, at his office in , on the day of , 18 , at o'clock in the noon, why possession of the said premises should not be delivered to the said landlord ; [If the summons was not in proper form, insert a copy of it ;] on which said day, to wit, the day of , 18 , the said A. B., and the said C. D., appeared before the said Jus- tice, whereupon the following proceedings were had : [Here state the proceedings, with the evidence of the witnesses, if any were sworn.] Deponent further says that, upon such hearing, the Justice gave judgment for the said A. B., that the said premises in his said affidavit mentioned should be delivered to him as the landlord, [or, against this deponent, and that the said premises in his said affidavit mentioned should not be delivered to him as the landlord,] and also gave judgment against this deponent, in favor of the said A. B., [or, 0. D.,] for dollars, as the costs of such proceedings. And de- ponent assigns the following grounds of error, upon which he appeals to the County Court of the said county of , to wit : [State the grounds of error distinctly and concisely.] C. D. [or, A. B.] Sworn, &c., [as in § 294.] I hereby allow the within appeal, this day of , 18 . G. H., County Judge. § 336. JVoUce of Appeal. A* -R Tn^rilL^ Summary proceedings to recover posses- A. B., landlord, I ^^^^ ^^ ^^^^ ^^^^^^ g_ ^ -^ ^ mamst r of the Peace. ^' C. v., tenant. J Sir: Please take notice that C. D., above named, appeals from the judgment rendered against him by S. T., Esquire, Justice of the Peace aforesaid, on the day of last, which judgment is mentioned and referred to in the affi- davit, of which a copy is herewith served on you, to the County Court of the county of . C. D. Dated 18 To A. B. and to S. T., Esq., Justice. 54 83i NEW-TOEK JUSTICE. A copy of the affidavit for appeal, and a notice of the appeal, must be served on the opposite party, within twenty days after the rendition of the judgment, and also on the Jus- tice. If the party be a resident of the city or county^ the service may be personal, or by leaving the copy of the affida- vit and notice at his residence, with some person of suitable age and discretion ; if not a resident, the service may be on the attorney or agent, if any, who is a resident of the city or county, who appeared for him on the trial." §337. TJndertakvng on Appeal. In the matter ofl o j- x bummary proceedmgs to recover posses- sion of land, before S. T., Esq., Justice of the Peace. A.B.,landlorc', agmnst C. D., tenant, C. D., above named, having appealed to the Coimty Court of county, from the judgment rendered against him in this proceeding, [describe the judgment ,•] Now, therefore, in order to stay the execution of the said judgment, and in con- sideration thereof, we, L. M. and N. O., as sureties, undertake, jointly and severally, that if judgment be rendered against the said C. D., on the said appeal, and execution thereon be returned unsatisfied in whole or in part, we will pay the amount unsatisfied: [If the appeal is made hy a tenant, add: And we do further undertake, jointly and severally, that the said C. D. shall punctually pay all rent accruing or to accrue upon said premises subsequent to the application to the Jus- tice, at the time or times when the same becomes due and payable, and that, in default thereof, we will pay the same.] Witness our hands, this day of , 18 . , L. M. ]sr. 0. I approve of the above undertaking and of the sureties therein mentioned. G. H., County Judge. The decision of the County Judge must be in affirmance or reversal of the judgment, and is final." Fees. The fees allowed by law for services under this statute are, as we have seen, the same as are allowed in civil actions in Justices' Courts.' Fees for the following services, however, do not seem to be provided by the fee bill in civil actions : ' Code, §§ 853, 854 ; ante, p. 604. ' ' li; 5 Howard's Prac Eep. 21.; ante, p. 472. 2 Lawfl of 1819, chap, 198, § 5. LUNATICS. 835 To Justices.'] A warrant to put the landlord in possession, thirty-seven and a half cents ; Yiewing the premises alleged to be deserted, fifty cents. CHAPTER XVIL OF LUNATICS. When any person who is possessed of sufficient property to maintain himself, becomes furiously mad, by lunacy or other- wise, or so far disordered in his senses, as to endanger his own person, or the persons or property of others, if permitted to go at large, it is the duty of the committee of his person and estate to send him, within ten days after he has become so fm-iously mad, or so disordered, to the State Lunatic Asylum, or to such public or private asylum as may be approved by the board of supervisors of the county within which the luna- tic resides." If such person is not possessed of sufficient prop- erty to maintain himself, it is the duty of his father and mother and children, if of sufficient ability, to send him, with- in ten days, to the State Lunatic Asylum, or to the asylum designated by the supervisors of the county." The overseers of the poor have the same remedies to com- pel the committee and relatives of the lunatic to confine and maintain him in the State or a private asylum, and to collect the costs and charges of his confinement, as are given by law in the case of poor or impotent persons becoming chargeable to any town.* If the committee or relatives of the lunatic or mad person refuse to provide for his confinement and maintenance in one of the asylums above designated, or if there is no committee 1 2 E. S. 636, § 26 ; id. 63T, § 29. s li; 1 E. 3. 635, § 2. ' 1 id. 6SS, § 1 ; Laws of 1812, chap, 185, § 20. Md. §§ 8, 13. ^ 836 NEW-TOEK JUSTICE. or relative of sufficient ability, it is the duty of the overseers of the poor of the city or town where such lunatic or mad per- son is found, to apply to two Justices of the Peace of the same city or town, to issue a warrant for his apprehension.' If, after an examination, or if, upon their own view, or upon the oath and information of others, without a request by the overseer," the Justices are satisfied that it would be danger- ous to permit the lunatic to go at large, they must issue their warrant, directed to the constables and overseers of the poor of the city or town, commanding them to cause the lunatic or mad person to be apprehended, and safely locked up and con- fined in such secure place as may be provided by the overseers of the poor to whom the warrant is directed, within the town or city of which they are officers, or within the county in which the city or town is situated, or in the county poor- house, or in such private or public asylum as may be approv- ed by any standing order or resolution of the board of super- visors of the county in which such city or town may be situated, or in the Lunatic Asylum of the city of New- York.' If the lunatic or mad person is confined in any other place than in the asylum designated by the order or resolution of the supervisors, the warrant should direct that, after the expi- ration of ten days, he be conveyed to and confined in either the asylum provided by the supervisors, or the State Lunatic Asylum.' The Justices cannot, however, order the confinement of the lunatic, until the fact of his insanity has been proved by the evidence of two reputable physicians imder oath. Their tes- timony must be reduced to writing, and filed, with a brief report of all the other facts and proceedings in the case, in the office of the county clerk. ° If the Justices refuse to make the order of confinement, they must state their reasons for such refusal, in writing, so that any person aggrieved thereby may appeal." It is the duty of the overseers of the poor to whom the » 1 E. S. 636, § 4 * LawB of 1842, chap. 136, § 20. ' id. § 8. • id. § 22. » Id. § 4 ; Laws of 1838, oiap, 218. ' W. 21. LOTTATICS. 837 warrant is directed, to procure a suitable place for the con- finement of the lunatic, as therein directed.' § 338. Warrant to confine a Lunatio. County, ss : To the Overseers of the Poor, and Constables, of the town of , in said County, greeting : A. B., & lunatic, having been found in said town, so far dis- ordered in his senses as to endanger his own person, [or, the persons and _property_ of others,] it permitted to go at large ; and no provision having been made, either by his relatives, or any committee, for confining and maintaining such lunati c, the undersigned, two of the Justices of the Peace of said town, on the application of the Overseers of the Poor of said town, [or, upon our own view,] being satisfied, upon examination, [m-, upon information on oath to us given,] and from the evi- dence, under oath, of C. D. and E. F., two reputable physi- cians of , as to tbe alleged fact of the insanity of the said A. B., that it would be dangerous to permit the said A. B. to go at large : You are therefore hereby commanded, in the name of the people of the State of New- York, to cause the said lunatic to be apprehended, and safely locked up in such secure place as said Overseers may provide, in conformity to law, to be there detained for \_7iot exceeding ten] days, and, at the expiration of that time, to be conveyed to the State Lu- natic Asylum at Utica [or, to the asylum designated iy the board of siopervisors.'] Griven under our hands and seals, this day of , 18 . J. H. B., [L.S.J H. T. C, [L.S.] Justices of the Peace. The county clerk must file the papers delivered to him as aforesaid, and register the date, and the names and residences of the lunatic and officers severally, in the book of miscella- neous records kept in his office. His certificate, under the seal of the Court, verifying the fact of the filing of the papers and the registry, is sufficient to authorize the admission of the lunatic into the asylum." Fees. The fees allowed by law for services imder this statute are as follows : 1 1 E. 8. 685, § 5. " Laws of 1842, ciap. 185, § 32. 838 NEW-TOEK JUSTICE. To Justices.^'] Administering an oath or affirmation, twelve and a half cents ; A warrant, nineteen cents. To Constables!''] Arresting and committing any person pursuant to anj process, fifty cents ; Mileage, going only, for each mile, six cents. To Witnesses'] Each witness, for each day, fifty cents ; Mileage, four cents per mile each way, if the witness re- sides more than three miles from the place of attendance. CHAPTER XYIII. OF MAEEIAGES. JusTscES of the Peace are enumerated in the statute, among those officers and persons by whom marriages may be solem- nized.* The two essential requisites to the validity of the marriage contract are capaMUty and consent.^ Both the civil and the common law have fixed the age at which paa-ties are capable of contracting marriage, at fourteen years in males, and twelve in females ; ' founded upon the presumption, that the parties have, at that age, attained sufficient discretion to understand the nature of the contract. Marriage before that age is void- able at the election of either party, on arriving at the age of consent.' A former statute in New-York fixed the ages of con- sent at seventeen in males, and fourteen in females." This pro- vision, however, was repealed in 1830, within four months after it took effect," leaving the common law in force. 1 2 E. 8. 68T, § 29. « 2 Kent's Comm. 73. a ii 64T, § 40. ' id. = Laws of 1840, chap. 886, § 8. » 2 E. S. (1st edit) 18S, § 2. * 2 E. 8. 140, §§ 8, 10. • Laws of 1380, cbap. 820, § 24. ' id. 183, § 1. MAEEIAQES. 839 The consent of botli parties is absolutely essential to a Valid contract of marriage ; ' and it must be given by each party voluntarily. If it is obtained by coercion, duress or fraud, the marriage will be void from the time its nullity shall be declared by a Court of competent authority." This mutual consent is of the essence of marriage ; it consti- tutes of itself, and without the addition of any ceremonies, a perfect marriage according to natural law,' and according to the laws of this State.* It must, however, contemplate & pres- ent marriage, in contradistinction to a mere contract to be executed in the future, or, as the law expresses it, it must be per verba de prcesenU. When so contracted, the marriage is valid and binding,' even though it is not followed up by co- habitation.° The consent of parents is not necessary.' It is apprehended that the Justice will find but little diffi- culty in ascertaining the consent of the parties to the mar- riage, experience having demonstrated that willingness rather than reluctance is manifested by them. But, in ascertaining the age of the parties, especially of the female, he wiU have a more difficult and perhaps a more delicate task to perform. If he is of the opinion that either of the parties is not of mar- riageable age, he should require legal proof to establish the age.° The Justice is also required to ascertain, and enter in a book to be kept for that purpose, the christian names and surnames of the parties, their ages, and their respective places of birth and residence, and also the names and places of residence of two attesting witnesses, if there are two present. If but one witness is present, his name and place of residence must be ascertained. If either of the parties is not personally known to the Justice, he must require proof of identity.' Solemni- zation of a marriage, where either of the parties is, within the knowledge of the Justice, under the age of legal consent, or a lunatic, or an idiot, or to which, within his knowledge, any 1 Bishop on Marriage and Divorce, § 63. * Bishop on Marriage and Divorce, § 67 ; 7 » 2 Kent's Comm. 77; 2 E. S. 139, § 4. WendeU, 47. 3 Bishop on Marriage and Divorce, § 63. ''2 Kent's Comm. 85. * 2 Kent's Comm. 87 ; 2 E. S. 139, § 9. « 2 E. S. 140, § 10. s 4 Johnson, 52 ; 1 Hill, 270; 8 Paige, 574. » id. § 11 ; Laws of 1847, chap. 152, § 8. 840 NEW-TOEK JUSTICE. legal impediment exists, is a misdemeanor, punisliable by fine or imprisonment, or both.' No particular form of ceremony is necessary to solemnize a marriage, except that the parties must solemnly declare, in the presence of the Justice, and of at least one witness, that they take each other as husband and wife." A Form, however, is inserted here for the benefit of those, (either Justices or par- ties,) who are going through the ceremony for the first time. § 339. Form of Ma/rriage. The officer performing the ceremony will direct thepa/rUes to join hands, and then say: "By this act of joining hands, you do take each other as husband and wife, and solemnly promise and engage, in the presence of these witnesses, to love and honor, comfort and cherish each other, as such, so long as you both shall live : Therefore, in accordance with the laws of the State of New-York, I do hereby pronounce you husband and wife." At the request of either party, the Justice is required to fur- nish a certificate specifying : 1. The names and places of res- idence of the parties married, that they were known to him, or were satisfactorily proved by the oath of a person known to him, to be the persons described in the certificate, and that he ascertained that they were of sufficient age to contract marriage ; 2. The name and place of residence of the attest- ing witness or witnesses ; 3. The time and place of thei mar- riage ; and 4. That, after due inquiry made, there appeared no legal impediment to the marriage. The certificate must be signed by the Justice.' § 340. Marriage Certificate. Connty, \ gg. Town of I do hereby certify, that on the day of instant, \or, last past,] at the house of E. F., in said town of , A. B., of, &c., andE. D., of, &c., were, with their mutual con- sent, lawfully joined together in holy matrimony, which was solemnized by me, in the presence of M. P., of, &c., and E. >2E. S. UO, §12. Md.§lS. Md. § 9. MAEEIAGE. 841 F. of, _&c., attesting witnesses : And I do further certify, that the said A. B. and E. D. are known to me, [or, were satisfac- torily proved, by the oath of E. F., known to me,] to be the persons described in this certificate ; that I ascertained, pre- vious to the solemnization of the said marriage, that the said parties were of sufficient age to contract the same ; and that, after due inquiry by me made, there appeared no lawful im- pediment to such marriage. Given under my hand, this day of , 18 . G. H., Justice, &c. Ministers and priests are also required to furnish similar certificates, which, when certified by a Justice, according to the following form, are entitled to be filed and recorded in the office of the clerk of the city or town where the marriage took place, or where either of the parties resides. The certificjate of the Justice, must be endorsed upon or annexed to the mar- riage certificate of the minister or priest.^ § 341. JusUcis Certificate. County, ) Town of , j ®^- I do hereby certify, that G. H., Eector of, &c., by whom the foregoing [or, within] certificate is signed, is personally tnown to me, and has acknowledged the execution of said cer- tificate in my presence, this day of , 18 ; [or, that on the day of , 18 , personally came be- fore me, M. P., to me known, who, being by me duly sworn, did depose and say, that he was well acquainted with G. H., Eector of, &c., and knew him to be the same person who ex- ecuted the foregoing [or, annexed, or, within] certificate ; and that he was present and saw the said G. H. execute the same.] S. T., Justice, &c. Fees. The fee for performing the marriage ceremony, not being regulated by statute, depends entirely upon the liberality of the groom. I 2 E. S. § 140, § IS. 842 NEW-TOEK JTJSTICE. CHAPTER XIX. OF PARENTS ABSCONDING. Whenevee any father, or mother being a widow or living separate from her husband, absconds, leaving his or her chil- dren, or whenever a husband absconds, leaving his wife chargeable, or likely to become chargeable, upon the public for support, the overseers of the poor of the town where the wife or children may be, may apply to any two Justices of the Peace of any county in which any estate, real or personal, of the parent or husband absconding may be situated, for a warrant to seize the same.' Upon due proof of these facts, the Justices must issue their warrant, authorizing the overseers to take and seize the goods, chattels, effects, things in action, and the lands and tenements, of the person so absconding." § 342. Warrant to seise the Goods of an Absconding Father, Husbamd, or Mother. County, ss: To C. D. and E. F., Overseers of the Poor of the town of , in said County : It appearing to us, two of the Justices of the Peace of said county, as well by the application and representation to us made by you, the said Overseers, as upon due proof of the facts before us made, that A. B., late of said town, has absconded from his wife, [or, children,] leaving the said wife,[or, children,] chargeable [or, likely to become chargeable] to the public for support ; and that the said A. B. has some estate, real or per- sonal, in said county, whereby the public may be wholly or in part indemnified against said charge : We therefore, in the name of the People of the State of New- York, authorize you, the said Overseers of the Poor, to take and seize the goods, chattels, effects, things in action, and the lands and tenements of the said A. B., wherever the same may be found in said >1E.S. 615, §8. Md. PARENTS ABSCONDING. 84:3 county : And you will, immediately upon sucli seizure, make an inventory of the property by you taken, and retui'n tlie same, together with your proceedings, to the next Court of Sessions of said county. Given under our hands, at the town of , this ^ ' S ' T ' [ J'^^^i'^^^- Ey virtue of this warrant, the overseers may take the prop- erty wherever it can be found in the same county ; and they are vested with all the right and title to it, which the person absconding had at the time of his or her departure. All sales and transfers made by him or her, after the warrant is issued, of any personal property left in the county, whether in pay- ment of an antecedent debt, or for a new consideration, are absolutely void. The overseers must immediately make an inventory of the property taken, and return it, with their pro- ceedings, to the next Court of Sessions, by which the warrant and seizure may be discharged or affirmed.' If the person against whom the warrant was issued return, and support his wife and children, or give security, approved by any two Justices of the town, to the overseers of the poor of the town, that the wife or children so abandoned shall not become or thereafter be chargeable to the town or county, then the warrant must be discharged by an order of the Jus- tices, and the property taken be restored to him.' § 343. Bond to le given hy Pa/rty where Property has leen seized. Know all men by these presents : That we, A. B. and L. M., both of the town of , in the county of , are held and firmly bound unto C. D. and E. F., Overseers of the Poor of the town of , in the sum of dollars, for the payment whereof to the said Overseers, or their suc- cessors in office, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated at , this day of ,18 .* Whereas the said Overseers of the Poor lately seized the property of the said A. B., under a warrant issued by G. H. JIE.S, 615, §9. 2ia. 616, §11. 844 NEWTOEK JUSTICE. and S. T., two Justicea of the Peace of the county of , upon due proof, to them given, that the said A. B. had absconded from his wife, [or, children,] leaving her, [or, them,] chargeable [or, likely to become chargeable,] upon the public for support ; And the said A. B. having returned, and being desirous of having his property so taken restored to him : Now, the con- dition of this obligation is such, that if the said wife, [or, chil- dren,] so abandoned, shall not become or hereafter be chargea- ble to the said town or county, then this obligation to be void ; otherwise, offeree. A. B. [l. s.] L. M. [l. s.] Sealed and delivered in the presence of us, two of the Jus- tices of the town of , by whom the said bond and sureties are approved. G. H. | j^^^.^^^^ § 344. Order to discTia/rge the Warrant, and to restore the Property. County, ss : To C. D. and E. F., Overseers of the Poor of the town of , in said county : "Whereas, by a warrant to you directed, bearing date the day of , 18 , you were authorized to seize the goods, chattels, effects, things in action, and the lands and tenements of A. B., upon proof that he had absconded from his wife [or, children,] leaving her [or, them] chargeable to the public for support : And whereas, the said A. B. has returned, and now supports his wife, [or, children,] so abandoned, [or, has given security approved by us, to the Overseers of the Poor of the said town, that his said wife [or, children] shall not become, or hereafter be, chargeable to the said town, or to the said county :] "We do, therefore, hereby discharge the said warrant issued against the said A. B., and direct the property taken by virtue thereof to be restored to him. Given, &c., [as m § 342.] Fees. The only fees allowed under this statute are one of twenty- five cents to the Justice for drawing a bond,' and one of twelve and a half cents for administering an oath." 1 2 E. 8. 687, § 29. ^ id, § 28. PAWN-BEOKEKS. 845 CHAPTER XX. OF PAWN-BROKERS. Whenever any person makes oath before a Justice of the Peace, or Police Justice, that any property belonging to him has been embezzled, or taken without his consent, and that he has reason to believe and suspect, and does suspect, that such property has been pledged with some pawn-broker, the Jus- tice, if satisfied of the correctness of the suspicions, must issue his warrant, directed to some constable of the city or place, commanding him to search for the property so embez- zled or taken, and to seize and bring it before him. (For Forms of complaint and warrant, see omte, p. 541.) The con- stable to whom the warrant is directed and delivered, has the same power to proceed thereon as in the case of a search war- rant issued upon a charge of larceny.' The property, when brought before the Justice, is to be de- livered to the claimant, upon his executing a bond, with such surety as the Justice shall approve, to the person from whose possession it was taken, in a penal sum equal to double the value of the property claimed, conditioned to pay on demand all damages that shall be recovered against him in any suit that may be brought, within thirty days from the date thereof, by the pawn-broker from whose possession the property was taken.^ § 345. Bovd of Claimant. Know all men by these presents, that we, A. B. and 0. D., both of in the county of , are held and firmly bound unto E. F., of , in the county of , in &c., \as tn § 342, to the *, the penalty to le double the value of the jorojperty claimed, and then add .'] Whereas certain property, namely, [describe it,'] has been taken from the possession of the said E. F., by virtue of a warrant issued by Q. H., a Justice of the Peace of said county, dated the day of , 18 ; And 1 1 E. S. Til, §§ 10, 11 ; ante, pp. 541, 542. » 1 S. B, 711, §§ 12, 13. 846 NEW-TOBK JUSTICE. whereas the said A. B. claims that the said property belongs to him, and was embezzled from him, [or, taken from him without his consent,] and was pledged with the said E. F., as a pawn-broker ; And whereas the said A. B. desires to have the said property delivered to him : JSTow, the condition of this obligation is such, that if the said A. B. shall, on de- mand, pay all damages that shall be recovered against him in any suit that may be brought, within thirty days from the date hereof, by the said E. F., then this obligation to be void ; otherwise, of force. A. B. [l. s.] C. D. [L. s.] Sealed and delivered in my presence, by whom the said bond and surety are approved. G. H., Justice of the Peace. If this bond is not given within twenty-four hours, the Jus- tice must deliver the property to the person from whose pos- session it was taken.' Mes. The fees allowed by law for services under the foregoing statute, are as follows : To Justices.'''] Administering an oath or affirmation, twelve and a half cents ; Drawing a bond, twenty-five cents. To Constables'] Serving a warrant, nineteen cents ; Mileage, going only, for each mile, six cents. CHAPTER XXI. OF UNCLAIMED BAGGAGE. It is the duty of the proprietors of the several lines of sta- ges, canal-boats, steamboats, rail-roads, taverns and inns, within 11E.S. m, §12. » Id. 647, §40. • 2 Id. 637, §§ !8, 29, UNCLAIMED BAGGAGE. 847 this State, who have any unclaimed baggage in their custody, to enter, in a book to be kept for that purpose, a description thereof, and the time when it was left. If the name and res- idence of the owner can be ascertained, he is to be notified by mail of the whereabouts of his baggage. If his name and residence cannot be ascertained, it is the duty of the person in whose possession the baggage may be, to make out a cor- rect written description of all such property as shall have been unclaimed for thirty days, (stating the time the same came into his possession,) and forward it to the editor of the State paper, by whom it is to be published once a week for three weeks, successively, commencing on the iirst Mondays of July, October, January and April, in each year.' In case the property remains unclaimed for sixty days after the publication, it is the duty of the person or company hav- ing possession thereof, to apply to a magistrate of the town or city in which the property is retained, in whose presence and under whose direction it must be opened and examined, and an inventory thereof taken by him ; and, if the name and residence of the owner are ascertained by the examination, it is the duty of the magistrate forthwith to direct a notice thereof to the owner, by mail. If the property remains im- claimed for three months after the examination, it is the fur- ther duty of the person or company having possession there- of, again to apply to a magistrate, and, if he deems the prop- erty of sufficient value, he must cause the same to be sold at public auction, giving six days' previous notice of the time and place of the sale. From the proceeds of the sale, he must pay the charges and expenses legally incurred in respect to the said property, or a ratable proportion thereof to each claimant, if insufficient for the payment of the whole amount ; and the balance of the proceeds of the sale, if any, the said magistrate must immediately pay to the Overseers of the Poor of said town or city, for the use of the poor thereof ; and the Overseers must make an entry of the amount, and of the time of receiving the same, upon their official records, and it is subject, at any time within seven years thereafter, to 1 Laws of 1S37, chap. 300, §§ 1, 2. 848 NEW-TOEK JUSTICE. be reclaimed by, and refunded to, the owner of the property, his heirs or assigns, on satisfactory proof of ownership.' The person making the entry of unclaimed property as above specified, is entitled to twelve and a half cents for each trunk, box, bale, package or bundle so entered, and has alien on the property until payment is made ; and, in case any ad- ditional expense is incurred for printing, the lien continues until payment is made for the additional expense. In case any person neglects or refuses to comply with the provisions of this statute, he forfeits the sum of five dollars for each and every trunk, box or bundle of baggage so neg- lected as above specified, to the benefit of any person who will sue for the same, in his own name, in an action of debt, in any Court having cognizance thereof." Fees. There is no provision of law establishing any rate of fees for the services of Justices under the above act. CHAPTEE XXII. or MISCELLANEOUS POWERS. Theeb are a few provisions scattered through the statutes, relative to the powers and duties of Justices of the Peace, the brevity of which did not seem to require their considera- tion in distinct chapters ; and, as there was no subject to which they appropriately belonged, they have all been ag- gregated in this Chapter. 1. ARBITRATORS. Justices of the Peace are authorized to administer oaths to ■ Laws of 18BT, chap. 80O, § 8. > Id. §§ 4, 6. DEPOSITIONS TO BE USED IN OTHEE STATES. 849 arbitrators, and to issue subpoenas to compel the attendance of witnesses before such arbitrators. The subpcenas are to be issued in the same manner, and with the like effect, and the witnesses are subject to the same penalties for disobedience, as in cases of trials before Justices of the Peace.' Fees. The fee for administering the oath is twelve and a half cents." The fees for subpoenas, and for subsequent proceedings, are the same as in civil actions in Justices' Courts." 2. DEPOSITIONS TO BE USED IN OTHER STATES. The statute provides, that if, upon application to any Jus- tice of the Peace of any town in this State, it shall satisfac- torily appear, upon affidavit or otherwise, to the Justice to whom such application is made, that a suit is pending in any Court in any other State of the United States ; and that any person residing in the town in which such application is made, is a material witness for either party to such suit; and that, according to the practice of the Court in which such suit is pending, the deposition of a witness taken before a Justice of the Peace in this State, will be received on the trial or hear- ing of such suit, such Justice shall issue his summons, requir- ing such witness to appear before him, at a place within the town in which such witness resides, at some reasonable time, to testify in such suit.* The Justice before whom such witness appears, must take down his testimony in writing, and certify and transmit the same to the Court before which such suit is pending, in such manner as the p-actice of the Court may require." If any person refuses or neglects to appear at the time and place mentioned in the summons issued in accordance with the statute, or if, on his appearance, he refuses to testify, he is lia- ble to the same penalties as would be incurred for a like of- fence on the trial of an action in a Justice's Court." 1 Laws of 1843, chap. 18T; 2 E. S. 641, § 6; < Laws of 1831, chap. 191, § 1. ante, p. 271, et seq. * id. § i. 2 2 E. S. 68T, § 28. • id, §§ 8, 4 ; ante, p. 278, et »eq. ' Ante, p. 472. 55 850 NBW-TOEK JUSTICE. Fees. To Justices.''] A summons, twenty-five cents. No particular fees are prescribed for taking testimony under the above statute. To Constables.^] Serving a summons, twelve and a half cents. To Witnesses."] Every witness who appears and testifies, as required by this statute, is entitled to receive from the party at whose instance he shall have been summoned, fifty cents for each day he gives his attendance. 3. FIREMEN. The supervisors and Justices of the Peace for the time be- ing of any town in this State, may ai:)point, in writing, any number of the inhabitants of the said town, not exceeding forty, to each fire engine which may be procured for the ex- tinguishment of fires in the said town. The persons so ap- pointed become firemen of the said town ; but no such com- pany can be formed pursuant to this statute, in any incorpo- rated city or village. All vacancies which may at any time happen in such companies, by death, resignation, or other- wise, are to be filled by the supervisors and Justices.* lees. There are no fees prescribed for these services. 4. FIRING OF "WOODS. Whenever the woods in any town are on fire, it is the duty of the Justices of the Peace, the supervisor, and commission- ers of highways, of the town, to order such and so many of the inhabitants of the town, liable to work on the highways, and residing near the vicinity of the fire, as they may sever- ally deem necessary, to repair to the place where the fire is prevailing, and there to assist in extinguishing it, or in arrest- ing its progress. If any person so ordered refuses or neglects to comply with the order, he forfeits the sum of fifty dollars, >2K. S. 687, §29. « Lows of 1832, chap. 222; Laws of 1846, ' id. 64T, S 40. Chap. 244. ' Laws of 1840, chap. 886, S 8. JUSTICES OF SESSIONS. 851 and is also deemed guilty of a misdemeanor, and, on conric- tion, may be punished by a fine, not exceeding one hundred dollars, or by imprisonment, not exceeding sixty days, or by both such fine and imprisonment. The forfeiture, when re- covered, is to be applied as a reward to such person or per- sons as the ofiicers above mentioned, or a majority of them, deem best entitled thereto, for superior exertions in extinguish- ing or stopping the progress of the fire.' Fees. No fees are prescribed for services under this statute. 6. FORCIBLE ENTRY AND DETAINER. Every Special Justice, every Justice of the Marine Court, and every Justice of the District Courts, of the city of New- Tork, has the like powers and authority under article one, title ten, chapter eight, part three, of the Revised Statutes, entitled " Of Forcible Entries and Detainers," that county judges have." Fees. Tlie fees in this matter are the same as in civil actions.' 6. JUSTICES OF SESSIONa The Constitution provides,* that two Justices of the Peace shall be designated according to law, to hold, with the county judge, Courts of Sessions. It is accordingly provided by statute, that two Justices shall be designated by annual elec- tion." Fees. For every day's attendance in holding the Courts of Oyer and Terminer and Sessions in any county, the Justices of Ses- sions are entitled to receive the sum of two dollars each, and six cents per mile in going and returning from Court ; such compensation to be a county charge, and to be paid by the county treasurer, on the production of the certificate of the • 1 E. 8. 697, §§ 2, 8, 1 < Constitution of 1846, Art. vl, sea 14. ' 2 id. 510, § 18, " Laws of 1847, obap. 276, § 40, and chap. 470 » id. 509, §§ 12, 13 ; ante, p. 472. § 84 852 NEW-TOEK JTSTIOE. clerk of tlie Court, specifying the number of days such Justices have attended, and the distance they have travelled respect- ively ; and but one allowance for travel can be made for any term of the Court.' The Justices of Sessions in and for the county of Orange, are entitled to receive the sum of three dollars per day each, for their services, to be audited by the board of supervisors of that county, and paid as other county charges are paid.^ 1. LIMITED PARTNERSHIPS. Justices of the Peace are authorized to take the acknowl- edgment of certificates made by persons forming limited partnerships/ 2^ees. The fee for such acknowledgment is twenty-five cents.* 8. RACING. All running, trotting, or pacing of horses, or any other animals, for any bet or stakes, in money, goods, or other valuable thing, or for any reward to be given to the owner or rider of any animal which shall excel in speed, excepting such as are by special laws for that purpose expressly allowed, are deemed racing within the meaning of the statute, and are declared to be common and public nuisances and misdemean- ors," punishable by a fine, not exceeding five hundred dollars, or by imprisonment, not exceeding one year. It is the duty of all officers concerned in the administration of justice, to attend at the place where they know or are informed that any race is about to be run contrary to the provisions of law, and there to give notice of the illegality of such contemplated race, and endeavor to prevent it, by dispersing the persons collected, and by all other means in their power. Upon his own view of persons offending against these provisions, as well as upon the testimony of others, a Justice of the Peace may issue warrants for the immediate apprehension of the ofl'enders, to the end that they may be compelled to enter into > Laws of 184T, clap. 2TT, § 6. * 2 E. S. 637, §29. ' LawB of 1848, chap. 241. « id. 672, § 65. 3 Laws of 1837, chap. 129. EACING. 853 recognizances, witli sufBcient sureties, for their good behavior and for their appearance at some proper Court' to answer for their offences.' § 346. Warrcmt to apprehend Persons engaged in Pacing. County, ) . Town of , P® • To any Constable of said County, greeting : You are hereby commanded, in the name of the People of the State of JNew-York, forthwith to take A. B., C. T>., and E. F., who are charged by me, J.H. B., a Justice of the Peace of the said town, upon my own view, [or, charged upon the oaths of B. A. and D. C, before me, J. TI. B., a Justice of the Peace of the said town,] with having been engaged, on the day of > 18 , [or, this day,] at the town of , in said county, in running and racing, and causing to be run and raced, certain horses there, for a bet or stakes in money, contrary to the provisions of the statute concerning racing, and to the common nuisance of the public, and to bring them before me at my office in said town, there to be dealt with according to law. Givenundermy hand and seal, this day of ,18 . J. H. B., [l. s.] Justice of the Peace. § 347. Pecognizance. State of New- York, ) County, f®^- "We, C. D. and E. F., of , in said county, acknowledge ourselves to be severally indebted to the people of the State of New- York ; that is to say, the said C. D. in the sum of dollars, and the said E. F. in the sum of dollars, to be well and truly paid, if default shall be made in the con- dition following : The condition of this recognizance is such, that if the said C. D. shall personally be and appear at the next Court of Sessions to be held in and for the said county, then and there to answer to a complaint against him for [fiere state the co7n- plaint^ and to do and receive what shall by the Court be then and there enjoined upon him, and shall not depart the said Court without leave, tnen this recognizance to be void ; oth- erwise, of force. C. D. [l. s.] E. F. [L. 8.] Taken, suBscribed, and acknowledged, the day of , before me J. H. B., Justice of the Peace. »Th8 Court of Sessions of the county is ^ 2 E. S. 6T2, § 56. such Court 854 NEW-TOEK JUSTICE. Fees. The fees allowed by law for services under this statute are as follows : To Justices.^'] A warrant, nineteen cents ; Drawing, copying and certifying a recognizance, twenty- five cents ; Taking and certifying the acknowledgment of any instru- ment which is required to be acknowledged before a Justice, twenty-five cents ; Administering an oath or affirmation, twelve and a half cents. To Gonstables.''\ Serving a warrant, nineteen cents; Mileage, going only, for each mile, six cents. 9. REMOVAL OF CONSTABLES. If any constable has collected any money on execution^ and a recovery therefor has been had against his sureties, upon a complaint thereof being made to any three Justices of the same town, they must summon such constable to appear before them, to show cause why he should not be removed from his office.' This summons may be made out by two of such Justices, upon a meeting of all three.* If such complaint be established to the satisfaction of such Justices, or of any two of them, after a hearing of the parties, or after the refusal or neglect of the constable to appear upon such summons, they must, by an instrument under their hands, remove such constable from his office, assigning therein the reason of such removal, and must file the same in the office of the town clerk, who must forthwith cause a certified copy thereof to be served on such constable.' Upon the service of a copy of such instrument, certified by the town clerk, on the constable named therein, such consta- ble will cease to have any power or authority as such, and his office will be deemed vacant." Fees. No fees are prescribed for services under this statute. ' 2 R. 8. 637, §§ 28, 29. • id. 655, § 2T. »ld. 64T, §40. 'W- 2T2, §269. » Id. 272, § 2G8. » id. 273, § 270. TOWN ATTDITOES. 855 10. TOWN AUDITORS. The supervisor, town clert, and Justices of the Peace, or any two of such Justices, of the several towns in this State, constitute a board of town auditors, for the purpose of audit- ing and allowing the accounts of all charges and claims pay- able by their respective towns.' The board must meet annu- ally for this purpose, at the place of holding the last town meeting, on the last Thursday preceding the annual meeting of the board of supervisors of the county.'' The board must make two certificates, to be signed by a majority, specifying the name of the person in whose name the account is drawn, the nature of the demand, and the amount allowed. One of these certificates is to be delivered to the town clerk, to be kept by him on file for inspection, and the other is to be delivered to the supervisor, to be by him laid before the board of supervisors at their annual meeting.' 'So account can be audited by the board of town auditors for any services or disbursements, unless it is made out in items, and accompanied by an affidavit of the claimant, (to be filed with it,) that the items of the account are correct, and that the disbursements and services charged have in fact been made or rendered, or are necessary to be made or rendered at that session of the board, and that no part of the account has been paid or satisfied. The chairman of the board may administer the oath to the claimant.' Notwithstanding the verification of the account, the board may require further proof of its accura- cy.^ No town officer can be allowed any per diem compen- sation for his services, unless expressly provided by law." It is also the duty of the board to make annually brief ab- stracts of the names of all persons who have presented ac- counts to be audited, with the amount claimed by each, and the amount finally audited. The abstracts are to be deliv- ered to the clerk of the board of supervisors, and printed with the other st.^tements required to be printed by him.' I Laws of 1840, chap. 805, § 1. 184T, chap. 490, § 2. 3 id. § 2 ; Laws of 1844, chap. 228. » Laws of 1815, chap. 180, § 25. 3 Laws of 1840, chap. 305, § 3. " id. § 28. *Lawfl of 1845, chap. 180, § 24; Laws of ' Laws of 1847, chap. 455, § 24 856 mSW-TOKK JITSTIOE. § 3i8. Affidavit to attach to an Account. County, ss : E. F., of said county, being duly sworn, says, that the items for services and disbursements mentioned in the foregoing ac- count by him presented [o7\ claimed,] are in all respects cor- rect ; that such disbursements and services have in fact been made or rendered, or are necessary to be made or rendered at this session of the Board ; and that no part thereof has been paid or satisfied. E. F. Sworn to, this day of , ) 18 , before me, j A. B., Chairman of the Board of Town Auditors of § 349. Certificate of Town Auditors. .1 ss: County, Town of We, the undersigned, composing the Board of Town Audit- ors of said town, do hereby certify, that we have this day au- dited and allowed to E. F., Commissioner of Highways of said town, by whom the foregoing account has been present- ed to us, the sum of dollars, as and for his services as such Commissioner, \iM8eTt, and the disbursements necessarily paid out by him in the execution of his duties, if necessary,] up to, and including, the day of we find a balance of dollars and by the said E. F. to the town of may be.'] the day of instant ; and that cents, to be due ; [oi", as the halanee Dated at .18 . A. B., Supervisor. C. D., Town Clerk. &c.^&c., ! '^"^^^<=«^- § 350. Absfnract of Claims audited hy the Town Auditors. Abstract of the names of all persons who presented ac- counts to be audited, to the Board of Town Auditors of the town of , on the day of > 18 , with the amounts claimed by each, and the amounts finally audited. Names. Title of Office, or nature of claim or services. Am't claimed. Am't audited. John Brown, John Doe, James Thompson, Justice of the Peace, Town Superintendent of Common Schools. Fur Supplies to Town Poor, &c., &c Total, 50 50 60 90 78 00 40 50 60 00 73 00 •1 ■) VACASrOIES IN TOWN OFFICES. 85T Town of , ss : We do hereby certify that the foregoing abstract is correct. Dated , the day of , 18 . D. E. L., Supervisor. S. G., Town Clerk. H. F., S. T., &c., &c., Justices of the Peace. J^ees. There is no provision in the statute giving fees to Justices for their services under this act. 11. TOWJSr MEETINGS. It is the duty of the Justices of the Peace of each town to attend every town meeting held therein ; and such of them as are present must preside, and see that the meeting is orderly and regularly conducted. The Justices so presiding have the like authority to preserve order, to enforce obedience, and to commit for disorderly conduct, as is possessed by a board of inspectors at a general election.' And they may make a parol order for the removal of any disorderly person who dis- turbs the business of the meeting ; an order in writing is not necessary.' Fees. For every day's attendance, each Justice is entitled to one dollar and twenty-five cents.' 12. VACANCIES IN TOWN OFFICES. If any town neglects, at its annual town meeting, to choose any of its town officers, it is lawful for any three Justices of the Peace of the town, by warrant under their hands and seals, to appoint such officers.' § 351. Wa/rrcmt appointing Town Officers. State of New-York, ) County, y ss : Town of . , ) The said town having neglected, at its last annual town H E. S. 842, §1 It, 12. s 1 E. 3. 856, § 50. « IT WendeU, 5T2. * id. 84T, § 81. 858 NEW-TOEK JUSTICE. meeting, to choose a town superintendent of common schools, the undersigned, Justices of the Peace of the said town, pur- suant to section 31, of article 3, of title 3, of chapter 11, of part 1, of the Eevised Statutes of the said State, hereby ap- point A. B. of said town to be superintendent of common schools of said town. Given under our respective hands and seals, at afore- said, this day of 18 . [Signatures of Justices.'] [l. s.J The Justices must file this warrant with the town clerk, who is to give notice to the person appointed.' Any three Justices may also, for good cause shown, accept the resignation of any town oflScer of their town. If accepted by them, notice must be given to the town clerk.' § 352. Wotioe of Acceptance of designation. State of New-York, ) County, V ss : Town of , ) To the Town Clerk of the said town : Tou are hereby notified, that we, the undersigned. Justices of the Peace of the said town, have, for good cause shown, accepted the resignation of A. B. [the office'] of said town. Dated at , this day of , 18 . [Signatures of Justices.] Yacancies in all town ofiices, (except the offices of supervi- sor, overseer of the poor, collector, assessor, commissioner of highways, and overseer of highways,) occurring by, death, res- ignation, removal, incapacity, or refusal to serve, may be supplied by warrant in the manner pointed out.^ A vacancy in the office of assessor, occasioned by either of the above causes, may be supplied, until the next succeeding annual town meeting, by an appointment in writing, under the hands of any three Justices of the Peace, or of two Jus- tices and the supervisor of the town.* If any person chosen or appointed to the office of collector of any town or ward refuses to serve, or dies, resigns, or re- moves out of his town or ward, before he has entered upon or completed the duties of his office, or is disabled from com- » 1 E. 8. 84T, § 82. * Laws of 1845, chap, 180, § 4 ; Laws of 1S4T, » id. § 88. chap. 45B. » Id. 848, §86, VACAITOrES m TOWN OFFICES. 859 pleting the same by reason of siclmess or any other cause, the supervisor and two Justices of such town or ward have power to appoint a new collector.' A vacancy in the office of commissioner of highways is sup- plied in the same manner as a vacancy in the office of as- sessor." A vacancy in the office of overseer of highways is filled by the commissioners of highways.' In case of a vacancy in the office of inspector of elecUon in any town, or if any inspector shall be absent, or shall have ceased to be a resident of such district, or shall be unable to at- tend and hold any election in his district, the supervisor or town clerk and Justices of the Peace in such town, must meet at such time and place as shall be appointed by the supervisor, or in case of his absence or inability or a vacancy in his office, by the town clerk, and must designate and appoint so many electors of such election district, as shall be necessary to sup- ply such vacancy, to be inspectors of election for such dis- trict, and must file a certificate of such appointment in the office of the town clerk ; and the persons thus appointed will be inspectors of such election for such district.* When a vacancy occurs in the office oi overseer of the poor, or supervisor, occasioned by refusal to serve, or death, resig- nation, removal, or incapacity, it is the duty of the town clerk, within eight days thereafter, to call a special town meeting for the purpose of filling the same.' If the electors do not, within fifteen days after the vacancy occurs, supply it, by an election at town meeting, three Justices of the Peace of the town may appoint a person to fill it, by a warrant under their hands and seals, in the same manner as in a case where there has been a neglect to elect." If the electors of a town make no election at the regular town meeting, they cannot make an election at a subsequent meeting, though held within fifteen days ; and the three Jus- tices may supply the vacancy without waiting the fifteen days.' If the annual meeting failed to elect a supervisor, it » 1 E. S. 809, § 11. » Laws of 1830, chap. 820, § 2. a Laws of 1847, chap. 455, § 3. • 1 E. S. 848, § 85. s 1 E. S. 604, § 14. ' 16 Johnson, 49. •* Laws of 1S42, chap. 130, titfle 8, § 22. 860 NEW-TOEK JUSTICE. is competent for the three Justices to appoint a suitable per- son, who is entitled to hold the of&ce, notwithstanding a per- son was elected as supervisor at a special town meeting. The provision providing for a special election, relates to cases where officers have been duly elected or appointed, and the offices have subsequently been vacated by refusal to serve, &c.' "Whenever a vacancy occurs in any town office which Jus- tices are authorized to fill, and there are less than three Jus- tices in the town, the requisite number may be made up by calling in one or more Justices from an adjoining town ; and the three Justices so associated have the same power to fill a vacancy, as if they were respectively Justices of the town in which the vacancy occurred." 1 18 Wenaell, 515. ' Laws of 1830, chap. 820, § 3. EEEATA. Page 84, line 20 ; for "new" read "knew." " 91, line 25; for "inferred" read "injured." " 112, line 21 ; for " esen" read " oxen." " 28T, line 82; for "eitliey" read "either." " 886, note 1 ; before " Greenleaf " insert " 1." " 898, line 18 ; for "yan" read "any." " 461, line 29; for "§ 64" read "§ 68." " 468, line 82 ; for " § 63" read " § 64" " 601, line 29 ; for " § T8" read " § 78.* " " 569, note 3 ; before " Obitty's" insert "1." " 572, note 7; after "p." insert "566." " 581, note 1 ; before " Obitty's" insert " 1." " 621, note 2 ; for " E. S." read " ' 2 B. S." " 630, note 2 ; for " 42" read " § 42." " 630, note 4; read "< id. § 66." " 640, note 5 ; for " Smeode" read " Smedes." " 641, note 1 ; before " Obitty's" insert " 1." " 649, note 8 ; before " Blaekstone's" insert " 4." " 656, note 1 ; for "Archibald's" read "Archbold's." " 678, line 8 ; for " § 172" read " § 172.* " *,(,♦ Mere typographical en-ors have not been noted. INDEX. ABANDONING CHILD, ^^' complaint for 554 punishment for, 594 - Abatement, pleas in, in civil actions, abolished, . . . 168 [Seo Fleas.} Abduction, complaints for, 663 punisbment for, 620, 621 Aboetion, complaint for, 562 punishment for 608, 609 Ajbscdnbing Parents, [See I'areiits Absconding,'] Absence, evidence of, of subscribing witnesses, . 298 Acceptance, by purchaser, necessary, 48 not a bar to an action for damages, ... 60 ACCESSOEIES, complaint against, after the fact, 650 punishment of, before the fact, 594 punishment of, after the fact, 621 none, in petit larceny, 642 ACCOMrLICES, testimony of, may be taken, 682 Account Books, [See Shop-Books.l Accounts, amount of, cognizable by justices,.. 28,33 no interest on unliquidated, 71 statute of limitations as to actions upon, 144, 149 court may require, to be exhibited, . . . 208 actions on, 208 defence founded on, 208 over $400, not within jurisdiction of justice, 288 AOENOWXEDGMENT. by partners, after dissolution, 102 to take case out of statute of limita- tions, 14T, 150, 42T of authority to act as attorney, 203 of instruments in New-Tork and else- where 396 to 403 of instruments generally, 412 of certificates of limited partnerships, 852 fees therefor, 852 cmd proof of con'V&ya/nees, <&c., who may take, 696 requisite, to entitle instrument to be recorded, 696 party making, must be known, 696 statement by subscribing witness, 696 Buhscribing witness must be known, 696, 697 who may prove identity of grantor,. . 697 married women, to be examined apart, 697 erasures and interlineations, to be noted. 697 certificate of, to be endorsed, 697, 698 contents of such certificate, 698 meaning of term " conveyances," 698 satisfaction of judgment, 699 forms for, 699 to TOT [See Coivoeycmces, and Evidence.] Acquittal, of one of several defendants, 284 Actions, civil, where to be tried by justices, . . 21, 35 for penalties, where not to he tried by them, 25 definition of, 26 what causes ofi cognizable in justices' courts, 27, 28 what not cognizable in such courts,., . . 28 on indivisible contracts, 83 on accounts, 83 venue in, for injuries to real property, 35 venue in,for personal property distrain- ed, 85 venue in, for penalties, 35, 116 venue in, against public officers, 35 by warranty in favor of non-residents, 36 by and against non-residents, 36 in justices' courts, where to be brought. 86 by and against town and county offi- cers, 86, 151 on contracts, 3T for breach of waiTanty, 56 by pawners, 60 for money paid, laid out, &c 61, 63 for use and occupation of lands, 64 on guaranties of notes, 70 on illegal contracts, 75 for horses hired on Sunday, 79 for false recommendation as to credit, 83 for false afiirmation as to character, . . 82, 63 for fraud in sale of horses, S3 to 85 by executors and administi-ators, 91, 151, 157 by and against corporations, 92, 151 by and against counties, 93, 94 by and against towns, 94 between partners, 103 for injuries to the person, 106 for injuries to real property, 106, 110 for injuries to personal property, 110 for trespass, lOT to 110 for injuries by domestic animals, 113 for penalties and forfeitures, 114 to 116 for cutting down trees, 115 practice in, in name of people, 115 compromise of, for penalties, 116 process in, for penalties, 116 complaint in, for penalties 117 in which canal boats may be detained, 118 jurors, itc, in, for penalties, 118 under mechanicb' lien law, 124, 125 times of commencing civil, 142 to 151 on j udgments, 145, 4>9 when commenced, 145 attempts to commence, 145 new, on reversal of judgments, 147 parties to civil, 151 to 160 by and against public officers and bod- ies, 151, 152 against counties, 152 against towns, 152, 161 on contracts in behalf of towns, 153 by foreign corporations, 153 to 156 862 ACT — ^ADJ INDEX. ADM — ^AGE Page. Actions, by and against joint-stock associations, 154 by and against banks, 164 maliciously Instituted, 166 to be prosecuted by real party, 156 by assignees, 157 by and against married women, 157 bv infants, 157 to 159 Slaintiif may conduct, in person,. , 157, 283 not abate by death, &c,, 159, 160 substitution of creditor for defendant in, 160 how commenced, 161 to 180 when commenced without process,, . . 1 61 ■when commenced by warrant, 161 when commenced by summons, 161 ■when commenced by attachment, 161 against supervisors, 161 when continued by warrant, 169 parties to, when exempted from arrest, 184 hearing of, commenced by attachment, 197 parties may defend, in person,. . . . 200, 283 by and against idiots and lunatics, 202 on accounts, and instruments for the payment of money, 208 what causes of, may be united, 210 comi)laint in, for violation of statute,,. 211 on demands bought for suit,. 219 plea of former, 221 on due-bills, 22S may be arrested by a tender, 230 tender after, brought, 280 payment by defendant in, on bonds, . . 231 in what, set-off allowable, 233 set-off in, by personal representatives, 237 on demands -which might have been set-off, 237 set-off in, for tort, 238 set-off in, for breach of warranty, 288 set-off in, against personal representa- tives, 238 in what, recoupment allowed, 240 to be discontinued on plea of title, 244 and to be brought in coimty court, . . . 245 and in some cases in supreme court, . . 246 adjournments o^ 248 to 261 on bonds on adjournments, 254 against defaulting witnesses, 278 jurors in, for penalties, &c., 290 challenges in civil, 294 formal proceedings on trial of, . . . 297 to 310 parties to, competent as witnesses, 870, 371 examination of parties to, 372 to 877 on canal contractors' bonds, 894 evidence in particular, 420 to 443 costs in civil, 472 to 476 for issuing execution on satisfied judg- ment, 481 against bidders refusing to take proper- ty, 496 for detaining defendant in jail, 501 for not returning execution, 503, 608 statute of limitations as to criminal, . . 532 for violation of excise law, 780 by and against hawkers and pedlers, . . 798 for proceedings under highway act,. . . 803 for obstructing highways, 807 Adjouknment, Issue must be joined before, 207 in consequence of amendment, 218 when for more than ninety days, '257 not good, when justice absent, 257 illegal, a discontinuance, 257 examples of irregular, 257, 959 irregularity of, may be waived, 260 general rules as to, 260, 261 / commission may be issued after, . . . . 262 till return of attachment 276 when witness refuses to testify,. . . 282, 801 Ml tnoUon ofdefendatvt, on warrant,... 250,261,256 Page. Adjoubnmbwt, on onoMon of defended, when witness refuses to swear or testi- fy, 251,256 on short summons, 251 for how long, 251, 256 when not allowed, 251, 252, 256 when to be granted, 252, 258 steps to secure, 252 on issuing commission, 252 oath to materiality of witness, 252, 253 security for, 252,253 bond on, where body execution can is- sue, 254 bond on, where such execution cannot issue, 255 second, when, 256 new bond not necessary, 257 third, when, 257 testimony of witness need not be stated, 267 when for more than ninety days, 257 on -motion o/JTisHcef for eight days, 248 not allowed on warrant, 248 on summons and attachment, 248 must be on return of process, 248 not allowed a second time, 248 when irregular, 249 on TnoUon ofplmntfvff\ on return of process, 249, 250 on joinder of issue without process, 249, 250 affidavit for 250 for how long, 250, 251 not allowed a second time 250 on ,warrant in favor of non-resident, . . 250 when T^^tness refuses to swear or tes- tify, 260 on short summons, 251 when not allowed, 251, 252 on issuing commission, 252 in Marine court, in New-York, 252 when for more than ninety days, .... 25T AUMINISTIIATOES, cannot be sued in justices' courts, .... 28, 85 are personal representatives, 91 to collect debts due their intestate, ... 91 letters to, 91 actions by, 91 letters to, evidence, 92 statute of limitations as to, 146 may sue in justices' courts, 151 set-off in actions by, 237 set-off in actions against, 233 admissions by one of several, 350 when, may assign apprentices' inden- tures 715 Admissions, by agents, 97, 841 [See 3£xiidence.'\ Adultery, of husband or vrife, 887 Affidatits, for body execution, 165 for warrant, 166 for a warrant, in an action for a ■wrong, 167 for a warrant, in an action on contract, 16T for short summons, by non-resident, . . 171 for short summons, against non-resi- dent, 171 for attachment, 172, 174> 176 for long attachment, -under Eevised Statutes, 177 for long attachment, under non-impris- onmont act, 178 for short attachment, against non-resi- dent, 173 that justice is a material witness, .... 206 of service of notice of application for commission, 26S for attachment against witness, 275 AKF — AMB INDEX. AME — APP 863 Page. APFIDATlia, ex J u7-ie, not to be given in eyidence, 297 in what form to be taken, ;^^300 who to take, in other states and coun- tries, 890 by printei-s, of publication, 410 on confession oi^ judgment, 455 to procure discharge from imprison- ment, 500 to obtain certiorari, in a criminal case, 674 to accompany account of fees, 686 justices may take, 708 oath to deponent, 709 fee for taking, 709 to authorize removal of tenant, 821 of service of summons on tenant, .... 824 by tenant, to obtain trial by jury, 827 by town officers, to accounts, 856 Affirmation. of witnesses, 299 Affkays, j ustices have power to quell, 533 persons engaged in, may be arrested without process, 533 complaint for making, 562 Agenoy, evidence of, 420 Agents, their liability for money of their prin- cipals, 61 of corporations, 93 who may appoint, 04 who may be appointed, 94 cannot delegate powers, 95 how appointed, 95 when acts of, bind principals, 95, 96, 98, 99 general, 95, 96 special, 95 powers of general, ^ 9Q warranty by, 96 when personally liable, 97, 99 admissions, declarations, &c., o^ . -... 97 lidble for fraud, 97 may sell on credit, 98 their liability for so doing, 93 when liable for conversion, 98 must account, 93 must pursue their authority, 99 tender to, 229 when admission of, bind principals, . . 841 competent witnesses against princi- pals, 372 evidence of authority of, 420 Agkeements, void by statute of frauds 40 to 50 form of, to answer for debt of another, 44 in consideration of marriage, 40, 45 to pay for appointment to office, 77 against public policy, 76, 77 not to bid at auctions 77, 78 Albany, five justices of the peace in, 12 the time and manner of their elec- tion, 12, 13 justices' court in, 12, 21 jurisdiction of such court, 30 jurisdiction of aldermen of, 114 fees of constables in, 474 powers and duties of police justice in, 515,516 special sessions in, 663 Aliens, incompetent as jurors, 290, 291 depositions of, evidence, 393 Allegany, jurors in county of, 289 Almb-Houses, keepers of, exempt from jury duty, . . 291 AUBASSADOBS, exemption of, and their servants, from arrest, 185 Amendment, after demurrer, 214 when, may be made, 218 costs on, 218 by inserting true name, 218 of pleadings generally, 804 of justice's return, 508 Animals, actions for injuries by domestic, . . . 112, 113 complaint for cruelty to, 562 punishment for poisoning, 683, 643 Answer, may be oral or in writing, 208 demurrer to, 214, 215 permitted after demurrer, 214 contents of, 215, 216 objections to be taken by, 216 forms of, 216, 217, 243 no reply to, 217 plea to the jurisdiction, 219 to 221 plea of former action, 221, 222 plea of payment, 222 plea of tender, 222 to 233 must contain notice of set-off, 236 must contain notice of recoupment, . . 240 plea of title, 243 in such case, must be written, 24:5 form of, setting up title, 243 in county coui't, must be the same, , . . 245 Appeals, from Marine court, in New-York, .... 504 from District courts, in New-York, . . . 504 from justices' courts, 504 costs and fees on, 613 tolien amd Iww talceTi, notice of, 504 notice must state gi'ounds of, 505 notice of, on whom to be served, 505 costs and fees of justice to be paid, . . . 505 time for, cannot be enlarged, 505 when notice to be served, 505 form of notice, 505 stay of eoaecution on, security to be given, 506 form ot security, 507 undertaking to be approved, 507 eifect of delivery of undertaking, .... 507 to whom undertaking to be deliv- ered, 507 notice of filing undertaking, to be given, 507 return to, within what time to be made, 508 when j ustice has removed, 508 amendment of, may be ordered, 508 form of, 508 to be annexed to judgment, 511 proceeMngs in appelate couH, amendments may be granted on terms, 510 witnesses may be examined, 510, 511 appeal, when to be heard, 610 notice of argument, to be given, 510 appeal, when to be dismissed, 510 judgment to be reversed, on default of respondent, 510 appeal to be heard on original papers, 510 judgment, how to be given, 510, 511 new trial may be ordered, 511 restoration may be ordered, 511 costs, how to be awarded, 511 [See BaUards and La/ndlord cmd Tenant.'} Appellant, [See Appeal.} Appointment, of guardian for infant plaintiff, 159 Appkenticks, who may be, 710 binding of, when valid, 710 must execute indentures, 710 executors may bind out, 710, 711 864 AFP — ^A8S INDEX. ASS — ^AUB Page, Apphentioes, superintendents of the poor may bind out, 711 overseers of the poor may bind out, . . 711 ■wtien Indiiin children not to bo bound as 711 age of, to be inserted in indentures, 711, 713 indentures, ■prvma facie eyidence of age, 712 money paid or agreed for, to be in- serted in indentures, 712 contents of indentures, 712 to be instructed, and have a bible,, . . 713 Infants from beyond the sea may be, 712, 713 continuing beyond term of indentures, 718 absenting themselves, to serve double time, 713 refusing to serve, may be arrested, 718, 714 complaints by masters against, 714, 715 complaints by, against masters, . . . 714, 715 indentures of, when to be assigned,. . . 715 employed by third persons, 715 forms, 715 to 724 penalty for selling liquor to, .... 779 liquor not to be sold to, of habitual drunkards, 791 Akbitratues, justices may administer oaths to, . . 848, 849 and compel -witnesses to attend be- fore, 849 fees therefor, 849 Aemt, exemption of officers and soldiers in, from arrest, 184 acknowledgments by, in Mexico, . . 397, 398 Akkebt, imder cwil process^ plaintiff to be notified of defendant's, . . 169 what constitutes 182 of defendant, in his dwelling,.... 182,183 who exempt from, 188 to 185 after escape, 185, 186, 1 93 irregularly made, void, 198 Wider criminal process^ who liable to, 545 [See Constables, and Warra/nts.'] Aeson, complaints for, in all the degrees, .... 551 in the first degree, 592 in the second degree, 595 in the third degree, 695 in the fourth degree, 596 punishment of, 596 Absault and Battery, civil actions for, cannot be tried by justices, ■ 28 actions for, abate by death, 91 actions for, when to be commenced,. 144 complaint for, 648 warrant for, 570 triable by special sessions, 643 Assault, complaints for, 553, 555, 556 punishment for, with deadly weap- ons, 59T punishment for, with intent to com- mit felonies, 621 ASBESSOK, vacancy in office of, how filled, 853 ASBIGNEB, action by, 1 57 complaint by, 218 Assignment, of debt, transfers chattel mortgage,.. 55 date of, prima facie evidence, 239 ABBIGNOIt, examination of, as witness, 876, 377 Associations, actions by and against jolQt-8tock,158 to 156 Assumpsit, term abolished, 420 ASSUMPBIT definition of, by Code, substituted, . . 420 [See Contracta, 3.11^ Evidence.'] Asylum, Lunatic, [See lAmaUca.] Attachment, to issue to county of justice, 85 actions, when commenced by, 161 to be filled up, 163 need not be sealed, 163 to be in name of people, 1 63 to be in English, 163 service of, 189 to 197 duration of lien created by, 193 justice to wait one hour after return of, 203, 204 judgment on, when presumptive evi- dence of indebtedness, 235 adjournment by justice on, 243 when allowed, 274 affidavit to obtain, 275 form of, 275 how executed, 276 costs of, 276 costs on, to be paid by offender, 469 levy in actions commenced by, 492 long^ statute authorizing, 170, 172 to be applied for in writing, 173 affidavit for, 172, 174, 176 bond for, 172, 174 contents of, 174 computation of time on, 1 74 maybe amended, 174 when proper, 175 nature of demands authorizing, .... 176 application and affidavit for, under Kevised Statutes, 177 affidavit for, under non-imprisonment act, ...' 178 • bond on, 173 approval of justice on bond on, 179 form of, 179 slwrt, statute authorizing, 175 to be applied for in writing, 1 75 affidavit for, , 175, 176 bond for, 175 when proper, 175 nature of demands authorizing, 176 application for, 177 affiiiavit jtor, against non-resident, 178 bond on, 173 approval of justice on bond on, 179 form of, 179 Attempt, punishment for, to commit ofi"ence, . . 621 punishment for, to induce perjury,.. 622 Attorney-General, : when to com uience actions for penalties, 145 Attorney, liable for money of client, 61 corporation may appear by,. . .157, 202, 209 infant cannot appear by, 157, 200 when exempted from arrest, 184 lunatic, when to appear by, 202 constable, when not to act as, 202 authority to appear by, 203 may make a tender, 224 admission by, binds client, 853 cannot be a witness agfiinst client,. . . 357 may be bail, in a criminal case, 639 may acluiowledge satisfaction of judg- ment, 699 Auburn, three justices of the peace in, 4 mechanics' liens in 144 officers in prison at, exempt from ju- ry duty, 291 powers and duties of police justices in 516,617 AUB — ^BAI INDEX. BAI BAS 866 A-UBTTSH Guards, exempted from jury duty, 291 AirOTIONEEK, momorandum of sales by, 49 Auction, meuiorandum of sales at, 49 agreements not to bid at, 77, 78 agents, when bound as purchasers at, 99 Augusta, iurors in town of; 289 BAGGAGE, [See Unclaimed Baggage,'] Bail, when exempted from arrest, 134 who may take, 620 meaning of term, 636 who may otfer, 686 I'ustice to judge of sufficiency of, 63t ly what standard, 637 excessive, not to be requirw pleaded, 209 CONFF^SION, not evidence of executi on of specialty, SS6 [See Eri(!'^nce.'\ Confession op Judgment, by partners, 102 [See Jiidffments.1 Congress, exemption of members of, fi-om arrest, 185 Consent, form of gnardian's, 153, 202 by plaintiff, to defendant's escape, 186 what jurisdiction may be conferred by, 205 when, will not give jurisdiction, 247 Consequential Damages, fi-om trespasses on lands, jQg OONBIDBaATION, guaranty must express, 42 43 co^" — CON INDEX. CON CON 869 Consider ATTON, seal irnportfi, 42, 45 *' for value received" expresses, 42,45 guaranty expre^.-ing pa-t, void 43 promissory noto imports, 66 what sufficient, for promissory notes, P6 of note", Inquiviible into, 67, 435, 436 and Its f;i 1 1 lire may be shown, 67 of contracts, ^, . . 75 effect of illegality of, ^.V.^L... 78 paid when recoverable by infants,.. »0 parol evidence to explain 863 when want of, must be pleaded, .... 863 OONSPIKAOY, punishment for, by persons disguised, 625 Constables, liable for money collected on execu- tion, 61 actions against, when to be commen- ced, 144 summons t(t be directed to, 162 to notify phtintiff of defendant's arrest, 169 service of summons by, 180, I'*! to make return on summons, 181 form of such return by, 181 servi«'e of warrant by, 182 to 189 need not show warrant. 182 but should state substance, 182 when, may break open doors, 183 arrest by, after escape, 185, 1 86 liable fi ir escape , 166 may plea what, bailable by a county judge, 620 what, by justices of the peace, 620 pun ishable with deatlu, arson in the first degree, 592 duelling, 593 murder, 598 treason, 593 ■jjunishahle hyoxierJVi>e I/fans' hnpiison- ment, abandoning children, 694 accessories before the fact, 594 aduunistcriiig poison, 694 arson in the second degree, 595 arson in the third degree, 595 arson in the fourth degi-ee, 596 assaults with deadly weapons, 597 attr.Tipts to commit offences, 59T bribery, .- 59T burglary in the 0rst deirree 598 burglary in the second degi'ee, 599 compelling to marry, 600 duelling, 600 falsely personating others, 601, 602 forgery in tlie first degree, 602 forgery in the second degree, 603 to 605 incest, 606 kidnapping, 606 larceny, when, 607 manslaniiliter in tlie first degree, 608 manslaughter in the second degree, 608, 609 mayhem, 609 perjury and subornation of perj ury,. . . 609 poisoning food, springs, &c., 610, 611 rape, 611 robbery in the first degi'ee, 611 robbery in the second degree, 611 second ofi'ences, Oil, 612 sodomy, 612 jjwyiishaole, hy Uss thrni ^e, years'' iin- prisonmsni, abduction, 620, 621 accessories after the fact, 621 assaults, w i th intent to commit felonies, 621 attempts to commit offences, 621 attempts to induce perjury, 622 bigamy 622 burglary in the third degree, 623 buying stolen property, 624 carnal knowledge of women, 624 compounding offence.9, 624 conspiracy by persons disguised, 625 coiTupting jurors, 625 death by wrongful act, 625 embezzlement, 626 escaping from county jail, 627 872 OEI — DAM INDEX. DAM — DEF Obhos, pwniahable ty leas t7um Ji^e yewrg im- prisormient, escaping from state prison, 62T false tokens and pretences Q'^T forgery in the third and fourth de- grees, 628 to 630 grand larceny, 630 anjuries to rail-roads, 680, 631 jurors accepting bribes, 631 manslaughter in the third and fourth degrees, 681, 682 poisoning cattle, : 633 receiving property, embezzled, 633 second offences, 633 seduction, under promise of marriage, 634 severing produce from the soil, 634 stealing records, 635 Bending threatening letters, 635 violating graves, &c., 635, 636 triable by a court of special eeeaions, assault and battery, 64-3 cutting down monuments, &c., 644 destroying guide-boards, &c., 644 petit larceny, charged as a first ofiFence, 642 poisoning and cruelly beating animals, 643 racing animals, 643 removingproperty to defraud creditors, 645 selling liquor to Indians, 645 selling poisons without labels, 644 "Wilful trespass, not amounting to grand larceny, 643 Ceiminal Actions, definition of, 26 [dee Grimes, and Special Sex»io7--.] Cbiminal Conversation, actions for, when to be commenced,. . 144 Cboss Interbogatokibs, [See CoTmmssions, and Interroffatories.'] Cumbrous Articles, delivery of, 4T, 48, 48T OUBTEST, estate by, 86 DAMAGES, actions for, cognizable in justices' courts, 2T,28 acceptance, not a bar to action for, ... 60 in case of trespasses on lands, 108 under mechanics' lien law, 125, 129 recoupment of, after action brought,. . 241 ■when, may be recouped 2+1. 242 recoverable from defaulting witness, 277,278 must be proved, 333 evidence in actions for, 424, 425 general remarks concerning, 443, 444 special, must be averred, . .* 446 for not returning execution, 508 ctga/hnst coTivmon carriers efm.dants.'\ Debts, agreements to answer for. of another, 40, 42 assignment of, passes chattel mctrtgage, 55 wife, not liable for her husband's, 65 due to wife, formerly belonged to hus- band 86 husband liable for wife's, ST collectable by personal representatives, 91 Deceit, in sale of horses, 83, 84 in sale of sheep by agent, 9T complaint for, 212 Declarations, by agents 97, 341 of deceased persons, 342 to 344 dyiTig, inadmissible as evidence, 344, S45 justices may take, 53S how to be taken, 588, 589 Deobebs, actions on,within what time to be com- menced, 1^ records and exemplifications of; evi- dence, 403 Deeds, contract by, 8T of gift, in trust, void, 50 evidt^nce to vary, 862 forms for acknowledgment and proof of, 699 to T05 [See OoTweytPiices, Ji'ridence^ and /«- stnim^nts.} Defendants, residence of, to give jurisdiction, 85 actions against non-resident, 86 when actions commenced against,. . . . 146 when entitled to costs, -. 15S who may be made, 169 creditor, how substituted for, 160 when, may disregard summons, 163 may be sued by fictitious names, 16S "warrant against non-resident, 165, 166 plaintifr. to be notified of arrest of, 169 suiinnons and attachment against non- resident, 170 attachment against, 17^ short attachment against, 175 service of summons on...... 180, 181 arrest of, by warrant, 182 to 189 arrest of, irfter escape, 186 rights of, as prisoners, I88 copies attachment and inventory to DEF — ^DEF INDEX. DEF DEP 873 Defendants, be sewed on, 189, 194 infaut, must appear by guardian, .... 200 guardians of iufant,how appointed, 200 to 202 failing to appear on return of pro- cess, 204, 205 detention of, when arreatad, 205 how to procure testimony of justice, 205,2(16 ■when to demur, 218 rights of, in actions on demands bought for suit, 220 payment by, in actions on bonds, 281 may pay money into court, 282 set-otfby, 283 to 240 to givo notice of set-off, 286 judgment for, on set-off, 236, 23T set-off by, against executors, &c. , 237 neglecting to set off demand, 237 ro.coupment by, 240 to 243 may set up title, 243 undertaking by, setting up title, 243 answer by, in county court, 245 adjournment by, on warrant, 250,251 adjournment on motion of, 250 to 256 acquittal of one of several, 284 stateaient of defence by, 804 examination of witnesses by, 304 ■when must plead want of considera- tion. 863 may call plaintiff to prove usury, 869 and to prove that demand was bought for suit, 869, 870 judgment for, after trial, 455 douole costs, when allowed to, ... . 469, 470 treble costs, when allowed to, 470 double and treble costs belong to, ... . 470 when to be discharged ft"om imprison- ment, : 500, 501 evid'&nce by, as common carriers, 423, 424 in mitigation of dambges, 425 of infancy, 425 when infants, to rebut proof of neces- saries, 426 to avoid plea of statute of limita- tions 426,427 in answerto proof of partnership, 428 pleading payment, 428, 429 in actions on notes, 485 of a tender, 487 in actions of trespass, 433, 439 in actions of trespass on tho case, . . 440, 441 in actions of trover, 443 [See Adjownvmsnts.'l Defdotions, jurisdiction, 17 action, 26 ' criminal action, 26 civil action, 26 contract, 87 express contract, 88 implied contract, 88 executed contract, 39 executory contract, 89 exchange, 89 contract of sale, 89 Tender, 40 Tendee, ... 40 "broker, 49 bailment, 57 bailor, 57 bailee, 57 depotiit, 57 mandate, 57 pledge, 68, 60 Sawn, 68 iring, 58 promissory note, 64 payee. 65 endorser, 66 endorsement, 65 Definitions, misrepresentation, 80 concealment, 81 executors, 91 administrators, 91 corporations, 92 general agent, 95 special agent, 95 partnership, 100 mutual accounts, 149 negligent escape,. 185 voluntary escape, 185 mesne process, 186, 186 chattels person^d, 190 recoupment, 240 subpceoa dnices tecum,, 272 trial, 282 challenge to the array, 294 challenge to the polls, 295 of various kinds of evidence, 311, 812 probability, 314 presumption, 815 surplusage, 880 primary evidence, 885 hearsay evidence, 388 general character, - 885 sworn copies, 89T special property, 441 conversion, 442 liquidated damages, 444 vindictive damages, 445 general damages, ; 446 interlocutory judgment, 453 final judgment, , . . . , 453 judgment, 463 bail, 636 DELiyBET, of cumbrous articles, 47, 48 of goods generally, . . * 47, 48 essential to validity of transfer, 50 common carriers liable until, 59 of pledges, 60 on a contract of sale, 223 on a contract to pay a debt, 223 DEMLiNI), need not be made on factor, 99 of payment of chattel note, 223 Desiakos, not to be boueht for suit, 219 passed npon by a jury, extinguished, 221 and cannot be recovered in another suit, 221 what, may be set off, 233 to 235 which might have been set off, 287 Dejubed Pkemibes, [See Lrwnkards.'\ Due Bills, place of payment of, 227 rights of parties to, 237,228 Duelling, deemed as murder, 593 punishment for, 600, 601 Dutchess County, mechanics' lien law in, 138 to 141 ELECTIONS, first, of justices, 4 of justices, under constitution of 1346, 4 certificate of justices', 5 of j usticos', in new towns, 5 of two or more iuatioes, 8 of justices of Mai'ine court, In New- York, 13 of justices of District courts, in New- York, 12 of justices in Albany, 12, 13 of justices in Hudson, iS of justices in Troy, 13 oivll procesB,not to be served on day 0^ 198 ELE— EVI INDEX. EVI— EVI 875 Elections. voters at, not exempt from criminal avi'est, 545 vnc^mcy In olHce of inspector of, how filled, 860 El'bctoiis, justices must be 4 to desigrnate term of office of justice. 8 Embezzm-imiint, complaijit for, 560 what is 626 punishment for, 626 Encboaoumkm's [S^e Ilig/i/ways, andS:oads.\ Endorsees, who are, , 65 recovery by, 6T Endows -MCNT, of process generally, 116 of process, undtr excise law, 780 of process, in actions for obstructln g highways, 808 of promufiory note-% in blank, 65 in full 65 restrictive, 65 transferring note without, 65 on back or face of note, 66 subscribing witness to, 66 without recourse, 66 contracts by, 68 striking out, 432 Endorsees, who are 65 transfers by, 66 how exempted from liability, 66 liable for amount received, 67 their conrract, 63 demand an-d notice to charge, GS notice to, when and how given, 68 guarantors not considered as, 70 may demand note on tender, 225 England, justices rtrst nominated in, 1 justi^-esin, liow appointed, 1 jurisdiction of justice in, 2 law as to chattel mortgages in, 54 [See Convey ancea.'\ Entries, in partnership books, 103 ofticial. wlicn admissible in evidence. 342 bypersons since deceased, 843, 344 in banltrupfs' books, of creditors^ debts, 351 refreshing memory of witness, by in- spector of. 330 [See Shop-hoolcs.'] Erie Countt, jurors in, 289 Escape, civil, actions for, when to be commoncel,l44 negligent, 1^5 voluntary, 185 arrest after 185, 186, 198 officer liable for, 186 consent by plaintiff to, 186 criminal, after arrest on criminal process, . . . 574, 575 punishment for aiding prisoners to,.. 594 punlshmentfor, firom countyjails, .. . 627 punish ment for, from state prison, . . . 627 Estates, in lands, how conveyed, 63 by curtesy, 86 Etibope, proof of conveyances made in, 896 EVTDENCB, certificate of drawing of justices, 8 of validity of chattel mortgages, 52, 54 In actions for goods sold, 62 in actions for noa-delivery, 63 EVIDENOE, parol, to explain dates, 66 possession, of title to notes, 67 in actions on promissory notes, 70 to prove fraud in contracts, 80 letters testamentary, &c., 93 of partnership, 103 entries in part ership books, 103 of possession of liighway, 107 of incorporation, wlien necessary,... 152 of authority to act as attorney, 203 knowledge' of pistice, not, 203, 205 parol, of issued in former suit, 222 date of assignment, prima JUcie, . . . 239 of servici! of .-ubpcena, 274 of service ofiiemre, 288 of employment in salt manufactories, 290 of employment in lunatic asylum, . . . 291 of membersliip in fir© company in Auburn state prison, 291 of service in the militia, 292 ew^f/z-if aftida\its. not to be given in, 297 plaintiff, when to introduce, 297 of death or absence of subscribing witness, 293 defendant, when to introduce, 804 nature and principles of, 310 to 312 competent, 811 satisfactory, 811 things j udicially noticed withoat, 312,318,389 various kinds of, 313 to 815 relative value of direct and circum- stantial 827 to 829 admissibility of, a question for the court, 880 sufficiency of, a question for :*iejury, 830 objections to, must be specific, 880 must be relevant, 830 if not, inadmissible, 830 none required, of surplusage, 830 of knowledge or intent, . , 831 relevancy of, must be shown, 831 ^i on whom burden of proof rests, 331, 332, 834 substance of, in reply, 333 of substance of issue, will suffice, 334 effect of variance between, and plead- ing, 335 the best must be produced, 335, 888 instruments of, how divided, 864 to show incompetency of witnesses, 865 of conviction for felony, 866 of market value, 451 efl'ect of judgment as, where defend- ant did not appear, 456 transcript, primafacie, of judgment, 461 rules of, applicable to criminal cases, 655, 656 certificate of conviction at special sessions, 659 adm,is8ions, admissible against party, 848 by whom they may be made, 848 to 854 by Ode of several parties, 349 by one, where interest is joint, 349 by one partner, 349,850 by one tenant in common, 849 by one executor or administrator, .... 850 when party gcted in diff'erent capaci- ty, 850 by parties in interest, 850, 351 of a eestwi que trust, 851 sheriff bound by deputy's, 351 of strangers to actions 851 by third persons who have been re- ferred to, 35 1 to 353 by one party, if the other will swear, 852,353 when husband bound by wife's, 853 of principal, against surety, 853 876 EVI — ^EVI INDEX. EVI — wn Page. EVIDENOE, client bound by attorney's, 353 of vendors of personal property, 854 of corporators 854 any one may prove, 854 time and circumstances o^ 354, 355 direct and indirect, 855 impiisd, from acts, 855 examples of such, 855 the whole, must be given in evidence, 855, 856 conclusiveness of, 856, 857 by paying money into court, 356 by tenant's paying rent, 857 not acted upun, not conclusive, 857 by receipt, may be explained, 857 doGwrnmitary, generally^ depositions of aliens, 893 letters of attorney, 893 form of certificates to, 894 canal maps and transcripts, 894 transcripts of canal contractors' bonds, 894 copies chattel mortgages, 895 proceedings of common council of New- York 395 Instruments duly proved and acknowl- edged •. 396 to 403 transcripts of records of convey- ances, 401 conveyances of lands in other states, 401, 402 copies records of deeds in ofiice of secretary of state, 402 originals, records, and exemplifications of, wills, 402, 412 records and exemplifications of judg- 4ent records and decrees, 403 ficates of incorporation of corpo- rations, 408 copies of papers and records in county clerks' oflices, 404 depositions in perpektwm rei Tnemo- riam^ 404 certificates as to services of firemen, . . 405 legislative papers, 405 papers and field-notes of land compa- nies, 405 certificates of loan commissioners, 406, 407 certificates of lost papers, 4u7, 403 marriage certificates, 408 copies papers deposited in the offices of the state government, 408, 409 transfer books of plank and turnpike road companies, 409 printers' affidavits of publication, .... 410 certificates of redemption of real es- tate 410 certified copies of laws, 411 certificates of unpaid taxes, 411 papers in offices of town clerks, 4U leases on unpaid taxes, in villages,. . . 411 written instruments proved or ac- knowledged, 412 eoochtded/rom puhUc poUoy^ communications of attorney and coun- sel 857,858 wife against husband, 858 communications to religious advisers, 858 comm unlcations to physicians and sur- geons, 858 definition oi; 888 meaning of rule, "hearsay, not evi- dence," 839,840 when Information from third persons Isnot, 340 declarations, being a part of re9 gestae, not, 841 official entries, when not, 843 as to pedigree, 843 exceptions of rule excluding, ... 342 to 848 Page. EVIDENOE,- Tiearaay, matters of public or general inter- est, 842, 843 ancient documents, 843 declarations of deceased persons,., 343, 844 entries by deceased persons, 343, 844 dying declarations, 84 i, 345 testimony of deceased witnesses, 345 to 348 pa/rol, to vary written i/nstrtmienis, general rale excludes, 360 effect of this rule, 360 to whom the rule applies, 361 when Instrument is in foreign lan- guage, 861 when instrument is illegible, 861 when instrument is incomplete, 861 admissible, to show fraud or illegal- Itj;, 362,863 admissible, to show variance of simple contracts, 862 admissible, to explain consideration of written contracts, 363 of usage, 363, 364 part'icular actions^ agency, 420 assumpsit, 420 to 422 common carriers, 422 to 424 damages, 424, 425 infancy, 425,426 partnership, 42T, 428 payment, 428, 429 promissory notes, 429 to 436 tender, 437 trespass, , 437 to 440 trespass on the case, 440, 441 trover, 441 to 443 presumptive, divisions of, 316, 817 when conclusive, 317 examples of; 818 to 327 of death, 321 of inability to commit rape, 321 when disputable, 322 of innocence, 322, 324 of malice, 322,323 possession, of ownership, 323 arising from possession 323, 324 jud^ent on attachment, 286,456 entries in justice ^s docket, 468 private writings, production of, 412 proof of loss of, 412, 413 secondary evidence of; 413 compulsory inspection of, 413 notice to produce, 413 to 415 mode of proving, 415 to 418 admission of genuineness o^ 415 proof of, when not attested, 416 proof of, by subscribing witness,. . 416, 417 proof of hand- writing of party to,. .417, 418 shop-books, 418,419 proceedings hfj/bre jusUcss, justice's docket, before himself; 465 transcript of such docket, . . 465 such docket and transcript conclusive, 465 and cannot be contradicted by parol, 465, 466 after justice's death, : 466 when docket is losti 468 public doewments^ written laws of other states and gov- ernments, 3SS, 389 common law of other states and gov- ernments, 383 laws of this state, 888 Kevised Statutes, 888, 889, 410 constitution U. S 389 acts of Congress, 389 journals of the le^slature, 889 records amd judicial wrU/higs^ how proved^ ,.., S89 EVI — ^EXO mDEX. EXC EXE 877 BVIDENOE, records and jitdicial wHMngs, seals to exemplified copies of, judici- ; clallj noticed, ' 3S9 how proved, under act of Congress, 889 390 by sworn copies, 890 affidavits taken in other states and countries, 890 of foreij?n courts, 891 copies of, of foreign courts, 891 of justices' courts in adjoining states, 892 of the courts of the United States, 892 in the departments of the federal gov- ernment, 893 etatiUe of frauds^ contracts relating to lands, 869 leases for more than a year, 359 contracts not to be performed within a year, 359 promises to answer for another's debt, 359 contracts in consideration of mar- riage, 859 contracts of sale, over $50, 359 what written, must contain, 360 ihs best must be produced, primary and secondary, 835 of execution of instruments, 836 secondary, of instruments, 836 confession is not, of execution of spe- cialty, 836 instrument must be produced, 836 ■written agreements, of themselves,. .. 33T when existence of instrument is dis- puted 387 letters must be produced 337 of authority of public officers, 338 [See Bufden of Proofs CoTweyances, and WiMesses.} ExCTSH AND Taverns, board of commissioners, how form- ed, 772,773 board of excise, when to meet, 773 act of majority, valid, 778 special meeting of board, how ap- pointed, 773 notice of such meeting, 773 minutes of meeting, to be kept and filed 773 powers of board, 77i what sum to be charged for license,.. 774 may grant ta\'ern licenses, 774 not to charge therefor, 774 board to sign licenses, 774 duration of licenses. 774 board must assemble to grant licen- ses, 775 when to grant licenses to drink on premises, 775 board have a discretionary power, . . . 775 bond to be given for license to drink on premises, 775 penHlty and condition of such bond, . . 775 form of such bond, 776 form of bond for tavern license, 776 form of tavern and liquor license, .... 776 contents of grocer's license, 777, 778 grocer to give bond, 778 condition of such bond, 778 form of grocers license, 778 grocers bond, 778 his bond to be filed 779 penalty for violating excise law, 779 penalty for selling liquors to appren- tices, &o., 779 penalties, how recovered, 779 who to prosecute bonds, 779 process in actions for penalties, to be endorsed, 780 form of such endorsement, 780 complaint for penalty, 780 evidence, in actions for penalties, .... 780 Excise and Tavukns, rule as to bringing actions for penal- ties, 780,781 convictions for violating law, where to be certified, 781 execution to collect penalty and costs, 781 to whom statute as to, does not ex- tend, 781, 782 rule as to boats 781, 782 moneys received for, where to be paid, 782 pledges, sales and assignments for liquors, void, 782 witnesses in actions to recover prop- erty pawned for liquors, 782 fees, .T 782,783 Executed Contracto, [See CoTiiracts.'] EXECTJTIONB, in actions in name of people, 116 growing wheat may be sold on, 122 under mechanics' lien law, 125, 126 to be filled up 163 need not be sealed, IftS to be signed by justice, 163 to be in name of people, 163 to be in English, 168 when to issue against body, 166 on judgment on set-ofF, 286 on such judgment, against executors, . 237 to enforce adjournment bonds, 254 against defaulting witness, 280 justice cannot issue, after transcript filed in county clerk's office, 461 first levy, entitled to preference, 492 property bound for delivery of, 493 impruoTvment v/nder, when, 500 when defendant to be discharged from 500,501 affidavit to procure discharge from, . . . 500 judgment not released by discharge from,.... 501 issimig of when to ba issued, 476 when to be made returnable, 476. to issue against body, ; 476 to direct collection of interest, 478 formal requisites of, 478 form of, 478 cannot be amended after it has been executed, 479 when to issue against town and coun- ty ofB.cers, , . . 479 endorsement of, when all the defend- ants did not appear, 480 when county is divided, 480 in actions for violation of excise law,.. 480 in actions for violation of statute as to fisheries, , , 4S0 after retm-n of one, unsatisfied, 481 after judgment is paid, 431 levy, time of receiving must be endorsed,. 484 what is a levy, 484 must be actual, 484 breaking open doors to make,. 485 time of, to be endorsed, 485 forms of endorsements ofi 485 form of inventory of, 465 receipt for goods taken on, 486 must be during life-time of execution, 4S6 after expiration of constable's office, . . 486 does not extinguish judgment, .... 487, 488 under one, enures to junior execution, 488 remains good as to debtor, though dor- mant as to junior executions, 488 officer liable for wanton levy, 489 officer making, acquires special proper- ty, 489 on gold and silver coin, as money, .... 490 878 EXE — EXE INDEX. EXE — FEE EXBOUTIONS, lev]/, bank bills may be taken on,i -490 promissory notes cajinot be taken on,. 400 after forfeiture under a chattel mort- gage, 491 when all the defentlantd m snoamps^ of constables, 772 of jurors. 7T2 of justices, 773 eo'c/.'ie anff tarrm-'i, of board of commissionera, 783, 7?3 of cominiasiouer drawing bond, 783 of j ustices, 850 /inng of woods, of justices 851 Jvroible entry an.t7 detainer, of justices ill New- York, 851 fugitirM from /notice, of constables, 788 ofju^ices 78S gamiiig ami lottery tick^t% of constables, 790 of justices 790 Twibitual drunkards, of constables, 795 of jurors, 795 of justices, 795 of witnesses, 795 7ia/ichers and pedlers, of constables, 799 of justices, 799 7i/ighica!/-% of constables, S13, 814 of jurors, S14 of justices, 813 of town clerks, 814 justices of session, generally, 851,852 in the county of Orange, 853 landlord arid tefiant, of j iistiees. 835 lirmied, pai-tnersMps, of justices, 852 lunatics, of constables, 838 of justices, 838 of wicuKsses, 838 7narj%ages, of justices, 841 o'bser7>am,ce of Swnd-an/, of constables, 766,767 of justices, 766, 767 parenU abseondi/jig, of justices, 844 poAffii-brokers, of constables, 846 of j ustices, 846 profane cursing a/nd swearing, of constables, 766, 767 of justices, 766, 767 racing, of constables, 854 of justices, 854 removal of constables, of justices, 854 town auditors, of justices, 857 town ■ineeUngs, ot j ustices, 857 unclav)ned baggage, of justices, 848 I'JSLONIES, conviction for, disqualifies as a wit- ness, 365 evidence of conviction for 866 punishment for assaults with intent to commit, - 631 [See Crimes a,nd. Pencdtie8.'\ Females, arrest of, 184 not exempt from criminal arrest,... 645 \^Q& Married WoTnen.} ' PaSe. Fences, defects In, defence in trespass, . . . .106, 114 purpose of, 114 cannot be taken on execution against tenant, 490 removal of, encroaching on high way ,808,809 Pines, justices punishable by, 10 for neglecting to All up process, 163 for suing out process against ambassa- dors, 185 for serving process on Jews and Sev- enth Day Baptists, 198 for refusing to assist in the execution of process, 200 for non-attendance of witnesses, 278 for contempt of court, 534 [See Special Sessions, and Iliglvwa/ys amd Jioads.} FlSEMEN, exemption of. from jury duty, 291 evidence of servi(!e of, 405 in towns, how appointed, 850 vacancic'^ among, how filled, 850 Firing of Woods, who may be ordered to extinguish fire in woods, 850 who may make such order, 850 penalty for refusing to obey such or- der, 850, 851 disposition of penalty, when collected, FlXTITRES, general rule, as to, 119 classification of, as to tenant, 119, 130 what are, 120, 122 what are not, 120 to 122 Forcible Entry and Detainer, powers of justices in New-York, un- der statute relative to, 851 Foreign Corporations, actions by, 153 to give security for costs, 153 Forfeitures, husband liable for wife's, 87 actions for, 114,116 recovered, where to be paid, 115 venue in actions to recover, 116 given to persons who will sue, 116 actions for, when commenced, ,. . 116 compromise of actions for, 116 process in actions for, 116 pleadings i n actions for, 117 double or treble value, bow assessed, 118 actions for, when to be commenced, 144, 145 j urors in actions for, 290 Forgery, complaint for, 557 in the first degree, 602, 60S in the second degree, 603 to 605 punishment of In the first and second degi-ees 605 In the third and fourth degrees, . . 638 to 630 punishment of, in the third and fourth '^kki^^^'^-iLi::^:!:^ ''^^/ certificate of the election of a Jus- tice of the Peace, 5 supervisor's notice of drawing, 6 certificate of the drawing, 7 oath of office, 9 dml, consent to be guardian for infant plaintiff, 158 summons, 164 aflidavit for a warrant, in an action for a wrong, 167 affidavit for a warrant, in an action on contract, 167 security by a non-resident plaintifi", on issuing a warrant, or a short sum- mons, 16S 880 FOE — FOB INDEX. FOE — FOE F0EM9, Page. written security, in like cRsee, 168 ■warrant, in a civil action, Iti9 affidavit for short summona by non- resident plaintiff, ITl affidavit for short summons against non-resident defendant, 171 application for an attachment, 177 amdavlt for a long attachment, under the lieviBod Statutes, 177 affidavit for a long attachment under the non-imprisonment act, 178 affidavit ftir short attachment against a non-resident, 178 bond on all attachments, long and short, 178 approval of Justice on the bond, . . - . 179 attachment, iu all cases, 179 returns on summons, 181 return on warrant, 189 bond to prevent the removal of goods attached, 192 bond by claimant of property attach- ed, 198 return to attachment, 196 consent to be guardian for infant de- fendant, 203 complaint in an action arising on contract, 211 complaint for injuring personal prop- erty, 212 complaint for breach of warranty, . . 212 complaint for fraud or deceit, 212 complaint for the conversion of per- sonal property, 212 complaint for injury to real property, 218 complaint by an assignee, 213 demurrer to complaint, 214 demurrer to answer, 215 answer, 216 answer, with notice, 217 answer, setting up plea of title 243 undertaking, on plea of title, 244 bond for defendant on adjournment, where he can be imprisoned on ex- ecution, '. . 254 bond for defendant onjadjournment, where he cannot be imprisoned on execution, 255 notice of application for a commis- sion 268 affidavit of service of notice, 268 commission, 265 interrogatories, and cross-interroga- tories, 266 commissioner's summon^ to witness, 269 oath to witness examined on a com- mission, 270 deposition of witness before a Com- missioner, 270 endorsement on an exhibit produced before a Commissioner, 270 return to be endorsed on commis- sion, 271 subpoena, 272 affidavit to obtain attachment against witness, 275 oath to party, to prove service of Bubpcena, 276 attachment against witness, 275 minute of conviction of defaulting witness, 280 execution against him, for fine and costs, 280 •oenire, for trial by jury in a civil ac- tion, 286 oath on objection to constable's serv- ing the vejUre, 287 oath of witness, upon the Gospels,.. 299 the same, not on the Gospels, 299 Forms, Page. affirmation of witness, 299 warrant of commitment against wit- ness who refuses to testify, 802 confession of judgment, 454 affidavit where the confession Is for a sum exceeding fifty dollars, 455 transcript of judgment, 461 entry in Justice's docket, 463 execution, in a civil action, 478 renewal of execution, 483 endorsement of levy on execution, 4S6 endorsement on an execution, where inventory is attached, 485 inventory to be attached to execution, 485 receipt for goods taken on execution, 486 constable's advertisement of sale,... 489 bond to indemnify constable, 493 memorandum of sale of goods or chattels, 496 return to an execution satisfied, 501 return to execution satisfied in part, 501 return, where defendant Is commit- mitted, 502 return of no property found, 502 return, where no property, nor the body of the defendant, is found, 602 return of part satisfied, and bo body found, 502 return, where goods remain unsold, 502 notice of appeal, in a civiJ action, . . 505 undertaking, 507 justice's return, 508 warrant of arrest for contempt of Court, 535 record of conviction therefor, 636 warrant of commitment therefor,.. , 537 complaintto obtain a search warrant, 641 search warrant, 641 oath of complainant, or of witness on complaint, 548 complaint for assault and battery, . . . 548 complaint for grand or petit larceny, 549 complaint for murder, 549 complaint for murder by poisoning,. 549 complaint for murder by stabbing, . . 549 complaint for murder by shooting, . . 550 complaint for murder by cutSng throat, 550 complaint against an accessory after the fact, 650 complaint for arson in the first de- gree, 651 complaint for arson in the second de- gree, 551 complaint for arson in the third de- gree, 551 complaint for setting fire to a crop of gi'ain growing 551 complaint for manslaughter, in kill- ing another witli an axe, 552 complaint for' manslaughter, in kill- ing an unborn child, by kicking its mother, 652 complainttfor manslaughter, in kill- ing an unborn child, by administer- ■ iug drugs, &c , to its mother, 562 complaint for rape, 552 complaint for rape on female under ten years of age, 653 complaint for assault, with intent to commit a rape, 558 complaint for forcible abduction of a woman, with intent to compel her to marry, or prostitute herself, 553 complaint for taking a female under fourteen years of age ft-om her pa- rent or guardian, 563 , complaint for mayhem or maiming, 554 FOE— FOE INDEX. FOE — FOE 881 TOKMS, ' oriminaZ, complaint for child-stealing, 554 complaint for abandoning child 554 complaint for shooting at, or attempt- ing to ?hoot at, with intent to kill, rob, or maim, 555 complaint for assault with deadly weapon, with intent to kill 555 complaint fur poisoning food, 555 complaint for poisoning well, 655 complaint for assault, with intent to rob, or commit burglary, 556 complaint for burglary, 556 complaint for felony and burglary in shop 657 complaint for burglary in entering store, 657 complaint for constructive burglary, 557 complaint for forgery, 557 complaint for passing, or offering to pass, counterfeit bank notes, 66S complaint for altering or counterfeit- ing bank notes, 55S complaint for obtaining property by a false token, or by falsely persona- ting another 659 complaint for obtaining money, or property, by false pretences, 659 complaint for robbery, 659 complaint tor embezzlement, 660 complaint for receiving stolen goods, 560 complaint for perjury, 560 complaint for bigamy, 561 complaint for marrying the wife of another, 661 complaint for malicious mischief, 661 complaint for malicious trespass, or for girdling trees, 661 complaint for procuring abortion,.. 562 complaint for making an alFray, 562 complaint for cruelty to animals, . . . 562 complaint for a rout or riot, 562 complaint for selling unwholesome food 563 complaint for disturbing a religious meeting, 663 general form of warrant in a criminal case, 670 warrant for assault and battery, 670 warrant for grand or petit larceny, . . 570 form of backing or endorsing a war- rant, 576 warrant of commitment for further examination, 681 prisoner's examination, 686 examination of the complainant, and of the witnessesforboth parties, 586 warrant of commitment of a wit- ness who refuses to enter into a recognizance, 588 recognizance by a witness to give evidence, 590 recognizance by a witness, with sure- ties 590 recognizance by sureties for a wit- ness who is an infant or a married woman 4 591 warrant of commitment, 618 recognizance, on giving bail, 640 warrant to liberate a prisoner, on giving bail, 641 warrant of commitment of prisoner to await trial by Court of special sessions, 647 order to jailer to bring up prisoner for trial, 647 plea to the jurisdiction 649 demurrer to the complaint, 649 plea in abatement, 650 special plea in bar, 661 57 Page. TORMS, crhninal, venire 652 subpoena, 654 oath to witness, 665 constable's oath, on retiring with jury, 656 minutes of proceedings on trial, 653 certificate of conviction at special sessions, 659 warrant of commitment, oa convic- tion at Special Sessions 660 acknowledgment of sat i.'- faction, on the compromise of an olfence, 673 order superseding the commitment of the prisoner, 673 order discharging the recognizances of the prisoner and the witnesses, . . 673 affidavit to obtain a writ of certiorari in a criminal case, 674 certiorari^ to remove a conviction to the Supreme Court, 676 return endorsed (m eertwrari, 676 schedule annexed to return, 676 recognizance to be entered into by a defendant, on the removal of a crimi- nal case into the Supreme Court by ceridoraH, 678 complaint to obtain surety of the peace, 681 peace \\'arrant, 682 recoguizance to keep the peace 683 commitment for not finding sureties, 684 warrant to discharge prisoner on finding sureties, 684 affidavit to accompany account for fees in criminal cases, 6S6 achnoicledg')n.ent% certificate of acknowledgment of a conveyance by aparty kziown to the officer 699 by a party, where his identity is proved to the officer, 700 by husband and wife, both known to the officer 700 by husband and wife, both proved to the officer, 700 by husband and wife-husband known, and wife proved, to the officer, 701 by two husbands and their wives, all known to the officer, 701 by wife, in separate certificate, 701 by two or more parties, 701 by one of several parties, 702 by an attorney, 702 by an executor, or trustee, 702 certificate of proof by subscribing witness known to the officer, 702 by subscribing witness, where his identity is proved to the officer, 703 by subscribing witness — grantors re- siding in another State, 703 the same, by subscribing witness proved to the officer, 703 by subscribing witness as to the hus- band, and acknowledgment by the wife, both being known to the . officer, 704 by subscribing witness as to the hus- band, and acknowledgment by the wife, both proved to the officer, 704 by subscribing witness to deed execu- ted by an attorney, 704 proof of deed, by a religious corpo- ration, 705 satisfaction of mortgage, and ac- knowledgment,by individual known to the officer, 705 certificate of satisfaction of a mort- gage, to be written thereon, 706 satisfaction of a mortgage, by an ex- ecutor, administrator or trustee, .... 70fi 882 FOR FOE INDEX. FOE — FOR Page. Forms, special, achnowledgme/nU, satisfaction of a judgment in a Jus- tice's Court, wiiere a transcript is filed in the county cleric's ofliuc. . . 706 satisfaction of a judgment in a Court of Kccord, 7U6 oath to be administered to a sub- scribing witness, 707 oath to a witness proving the identity of thu parties, or of the subscribing witness, to a conveyance, 707 oath to a deponent, 709 a/ppre/itiws, apprentices indenture, 715 consent by father or mother, 716 justices certificate, wliere thefatber does not give the consent, 717 consent of guardian, 717 consent by tl)e Overseers of the Poor, or two Justices of the Peace of tlie town, or tlie County Judge of the county, wliere the infant resides.. . . 717 complaint by master against appren- tice for rtifusing to serve, 717 warrant on the foregoing complaint, 718 commitment of an apprentice refu- sing to serve, 718 complainttotwo Justices concerning any misdemeanor or ill-behavior of an apprentice, 719 ■wan'ant on the foregoing complaint, 719 commitment of an apprentice on the forego] ug complaint, 720 discharjiC of the apprentice from his servie*.-, and of the master from his obligations, 720 complaint by an apprentice to two Justices, for the cruelty or mj.^usage of his master, or bis refusal to fur- nish him with necessary provisions or clothing, 720 summons on the foregoing complaint, 721 discharge of an apprentice on the foregoing complaint, 721 complaint by an apprentice against bis master, where money has been pail], or agreed to be paid, 722 summons on the foregoing complaint, 722 recognizance of master and surety on the foregoing complaint, 728 complaint by master against appren- tice -refusing to serve, where money has been paid, or agreed to be paid, 723 summons on the foregoing complaint, 723 recognizance of apprentice and sure- ty on the foregoing complaint, 724 hastard.% application uf a Superintendent, or overseer, of the Poor, in a case oi bastardy, 725 examination of the mother before birtli 726 , examination after hirth, 726 warrant to apprehend reputed father, 726 endorsement on a warrant of arrest to be e\t?cuted in a foreign county, 727 endorsement by a Justice in a foreign county, 727 bond to be taken hy the Justice before whom the reputed father is carried, 728 certificate to be endorsed on warrant, 729 subpccna in a case of bastardy, 730 bond on adjonrntoent, 781 order of filiation, 732 bond on order of filiation, 734 warrant to commit putative father, 780 warrant to commit a mother who refuses to disclose the name of the father, 787 POHMS, lastards, summons where the mother has prbjterty in her own right, 738 order to compel the mother to pay for the sujji^ort of the child, 788 warrant to commit the motlier, 789 bond by the mother of a bastard to appear at the next Court of ties- sions 740 order reducing the sum to be paid by the father or motlier of a bastard child, 740 ■H'arrant to discharge putative father, 742 warrant to beize the property of absconding father of bastard, 743 bond to be given by party where property has been seized, 744 order to discharge the warrant, and to restore the property, 745 teggars mid vagraTds^ record of the conviction of u Ta- grant, 748 warrant of commitment of a va- gi-ant, 748 warrant to arrest a person in disguise, 749 warrant to commit a child to the county jjoor-house, 750 dMorderVy persons, warrant to arrest a disorderly per- son, 753 recognizance of a disorderly person, 752 record of the conviction of a disor- derly person, 753 warrant to commit a disorderly per- son, 754 warrant to commit a disorderly per- son, after a recovery upon his recog- nizance, ". 755 discbarge of a disorderly person, to be granted by any two Justices,. . . 756 distwrhance of religious meetings, (fee, waiTant to arrest a person for the disturbance of a religious meeting, &c, 757 record of conviction for disturbing a religious meeting, &c, 753 execution to collect penalty and costs, on such conviction, 759 certificate of such conviction, 760 security for the payment of penalty and costs, npon conviction for dis- turbing a religious meeting, 763 warrant of commitment, on such conviction, 762 warrant to seize goo(k forfeited by being exposed to sale on Sunday,.. . 764 warrant of arrest for profenity, 765 security for the payment of the pen- alty and costs, upon conviction for profanity, 766 wai-rant of commitment, upon con- viction for profanity, 766 dogs, order to kill a dangerous dog, 767 drainin{f swamps, summons for a jury to determine on opening a ditch, 769 oath totlio jurors, 770 inquisition, 771 excise and invents, notice of Supervisor for special meet- ing of the Commissioners of Excise, 773 minutes of Board of Excise, 773 bond of tavern keeper, on license to sell spirituous liquoi-s, with appro- val, 776 bond for obtaining license, under Act of 1843, 776 license for keeping tavern and sell- ing spirituous liquors, 776 FOE — FOR rNDEX. FOE — ^FEA 883 FOKMB, ' esooise and iaverms^ license to koep tavern, without sell- ing spiri ttious liquors, 777 license to grocer to sellliquor, 778 gTOcer^s bond, 778 warrant to commit a fugitive from justice, 784 bond by a fugitive from justice, 785 habUtuU drunkards^ notice designating habitual druuk- ^ird, &c 791 notice to ovex'seers by justice, 793 venire for a jury to try the fact of habitual drunkenness, 792 juror's oath, 793 oath to witness, 793 exec u tion against the drunkard, 798 execution against the overseers, 794 revocation by the overseers, where a drunkard reforms, 794 hawkers and pedlers, commitment of a hawker or pedler for refusing to pay the penalty for not showing his license, 796 warrant to collect a penalty from a hawker or pedler, 79T Idghwaijs mid roads, complaint against a person for refa- sing to work on a highway, 800 complaint against a person for not furnishing a team, 800 summons for refusing to work on a highway, 801 return of constable on serving sum- mons, 802 conviction endorsed on the com- plaint, 802 warrant to collect a fine for not work- ing on a highway, 803 summons for a jury to re-assess high- way damages 805 oath to the jurors, 805 oath to witnesses, 806 verdict of the jury 806 certificate of the justice, 807 precept to summon a jury, in case of an encroachment on a highway, 810 oath to jurors, 810 oath to witnesses, 810 certificate of the jury, 811 warrant to collect costs of proceed- ings, upon an encroachment on a highway, 812 certificate where no encroachment is found 813 landlord mid tenanit^ petition and aflidavit, where demised premises are deserted, 815 notice to tenant who has deserted the demised premises, 815 bond on appeal. 817 notice to landlord of the appeal, 817 record of justice, where premises are deserted, 817 notice of intention U> re-entor demi- sed premises, 818 notice requiring payment of rent, or possession of demised premises, . . . 819 affidavit to authorize the summary removal of a tenant, 821 summons to remove tenant holding over after exjnration of lease, 822 summons in a case of tenancy at will, or at sufferance, terminated 'by no- tice, 823 summons to remove tenant for non- payment of rent, 828 afiadavit of service of summons, 824 warrant to put in possession, where FoRMB, Page. lamdlord cmd tenant, tenant holds over after expiration of lease 824 warrant to remove the tenant in a case of tenancy at will, or at suffer- ance, terminated by notice, 825 warrant to put in possession, on de- fault of payment of rent, 825 return of officer to warrant, 826 affidavit to obtain trial by jury, in proceedings to remove a tenant, . . . . 827 precept for a jury, 828 oath to jurors, 828 officer's oath to knep jury, after evi- dence given, 829 bond to stay proceedings, on a war- rant for non-payment of rent, 880 security for rent to stay proceedings, where the tenant has taken the ben- efit of an insolvent act, -,-..., 880 affidavit to stay proceedings, by oc- cupant of premises sold nnder ex- ecution, 881 bond to stay proceedings, by the same, 883 affidavit for appeal to county court, in proceedings to remove a tenant,. 88$ notice of appeal, 833 undertaking on appeal, 884 IwnaUcs, warrant to confine a lunatic, 88T marriages, form of marriage, 840 man-iage certificate, 840 justice's certificate, 841 parents tibsoonding, warrant to seize the goods of an ab- sconding father, husband, or mother, 842 bond to be given by party, where- property has been seized. 84S order to discharge the warrant, and to restore the property, 844 pamn^hrokers, bond of claimant of propertypledged. with a pawn-broker, 845 raaing, warrant to apprehend persons enga- ged in racing, 853 recognizance by person apprehended, 858 iovyn auditora, affidavit to attach to an account, .... 856 certificate of town auditors, 856 abstract of claims audited by the town auditors, 856 va^com-Gies m toion offices, warrant appointing town officers, . . . 85T notice of acceptance of. resignation of town officer, 863 Feanoe, jurisdiction of justices in, 2 what coins of, a legal tender, 226 proof of conveyances made in, 396 Fraitklin ComuTT, jurors in, 289 Fkattd, actions for, in j ustlcea' courts, 23 damages should be given for, 82 complaint for, 21 2 may be shown by parol,. 862 \^QQ FroAjdident Contracts.'] Feattdulent Conteacts, not binding, 80 what misrepresentation constitutes, .. 80 evidence of, 80 effect of performing, SO niay be rescinded, 80 when concealment will make, 81, 83 damages on, 83 false recommendations, 83 false affirmations, 83 deceit in the sale of horses, 88 deceit in the sale of sheep, ....'••*.,. 98 884 FEE— IIAB INDEX. HAB — ^Hia PKEEnOLDERS, first process against,. , 161 suiiiiiHins and wairant against, 170 Fruit, contracts for the pale of, 64 Fugitives riiuM justice, may be arrested by j iistices, 581, 788 provisions of U. 'S. constitation cou- cerniiiff 783 proceecdings to arrest, 783, 784 when to be committed, 784 may give bail, 784 warrant to commit, 734 bond by, 785 when to be discharged, 786 GAMING ANB LOTTEET TICKETS, charge of, to be on affidavit, 788 contents of such affidavit, 789 warrant, when to issue, 789 contents of warrant, 789 disposition of property, 789 fees 789, 790 Gas Companies, copies certificates of incorporation o:^ evidence, 403 General Issue, obsolete, 215 Genesee County, jm-ors in, 289 Geneva, mechanics' liens in, 123 Governor, to select justices of the peace, 3 Grain, complaint for firing growing, , 551 punishment lor severing, from the soil, 684 Grand Larceny, complaint for, 549 warrant for, 570 whati& 607, 630 punishment for, 607, 630 Grass, contract for gale of, 64 when tenants may mortgage, 122 when it may be taken on execution, 490 Graves, punishment for violating, 635, 636 Great Britain, ■what coins of, a legal tender, 226 proof of conveyances made in, 897 Guarantors, actions against, 70 evidence in actions against, of notes, 435 Guaranty, must express consideration, 42, 43 void, expressing past consideration, ... 43 of collection, 42, 45 actions on, 70 Guardians, of lunatics, 202 of infant defendcmts, how appointed, 200 to 202 not liaole for costs, 201 form of consent by, 202 of wfant plaintiffs^ how appointed, 158, 159 must consent in writing, 158 their consent to be filed, 15S when to be appointed, 158 form of consent by, 159 HABEAS COKPITS, for witness in Jail, 298 propriety of commitment for contempt cannot be inquired into on, 585 Habitual Drunkards, overseers of the poor to designate, . . , 790 HAErruAL Drunkards, penalty for furnisliinjj liquors to,. . 790, 791 liquor not to be furnished to children or apprentices of, — 791 notice designating 791 may apply for jury to try fact, 791 notice of such application to be given to overseers, 793 venire to issue for jury, 792 form of notice to overseers, 792 form of v&n/ire, 792 witnesses, bow summoned, 792 oaths to jurors ard witnes-es, .'. . 793 verdictof jury, presnmpiive evidence, 793 when judgment to be entered gainst, 793 execution against, 793 judgment, when verdict is in favor o^ 794 costs in such case, 794 execution atrainst overseers, 794 notice against, may be revoked, 794 form of such revocation, 794 both overseers must proceed against, 795 fees, 795 Hand-Writing, how proved, 417, 418 .Hawkers and Pedlees, liable to penalty for selling witliout li- cense, 796 and fornot showing license, 796 form of commitment of, 796 who may apprehend and detain, .... 797 duty of overseers to do so, 797 when to be convicted, 797 warrant against, 797 when not entitled to costs, 793 actionsby 793 actions against, when to be commen- ced, 793 fees 799 Hearsay Etidenoe, [See Hvidence."] Hector, has five justices, 4 Highways, who entitled to possession of 1C7 evidence of possession to centre ofi-. 107 actions for trespa.-ses upon, lOT vacancy in office of commissioner o^ how filled 859 vacancy in office of overseer o^ how filled 859 Highways and Koads, collecUon oj fines for not loorMng an^ fine for refusal or neglect to work, . . . 799 fine for hindering others, 799 fine for neglecting to furnish a team, &c, 799, 800 overseers of, to make complaint, 800 corporations, liable to be fined SOO complaints for neglect to work, &c., . . 800 overseer, judge of delinquency, 801 justice, to summon party refusing to work, SOI form of summons, 801 such summons, how served, 801, 802 such summons against corporations,.. S03 return of constable on summons, .... S03 fine, when to be imposed, S03 when ■\^'airant to issue, 802 conviction endorsed on complaint, . .. 802 warrant for, 803 authority of overseer, a jurisdictional fact, 803 officer, not liable to action, .. to whom fine to be paid, , re-aftses$77ie?it of da/niages for out^ appeal, how taken, 804, jurors, how summoned, jury, how drawn and sworn, witnesses, to be sworn, 803, 804 805 805 805 HIQ ^IDI mDEX. IDI — nSTF 885 ^ Page, HlS-BTWAYS AND RoADS, r6-as»easn}£nt of damages for laying cnit, jury, to view premises, 806 and to deliver verdict in writin;^, 800 verdict, to whom to be delivered, 806 verdict linal, 806 assc^siuf^it of damages for Imjiiig out private, duty of jiis'ices, 807 removal of ohst/iictimis a/nd enoroac/ir- penalty for obstructing, 807 plea of title, not a bar to action for, . . 807 who may maintain action for penalty, 807 what is an obstruction, 807 process, to be endorsed, 806 penalty for injuring, 808 penalty for obstructing water-course, 803 fences, how removed, 808, 809 contents of order to remove fences, . . 808 penalty for not removing fences, 809 proceedings, when encroachment is denied, 809 iury how summoned. 809, 810 ^ oaths to j nrors and witnesses, 810 *• dnty'of jury, 810 to certify fact of encroachment, 811 form of certificate, 811 finding of j ury conclusive, 811 certificate, where to be filed, 811 occupant, when to remove fences, .... 81i occupant, to pay costs, 812 costs may be collected by warrant, . . , 812 certificate of jury, when no encroach- ment is found, 813 costs in such cases 813 fees, for all proceedings, 813, 814 HmiNQ, definition of, 53 liabilities of bailees, 60 of liorses on Sunday, 79 Holland Land Company, papers and field-notes of, evidence, . . 405 HOMICtDE, when j ustifiable or excusable, 607, 608 HOBSES, actions for use of, on Sunday, 79 fraud in sale of, 83 recoupment in actions for use of, 242 House of liEFUGR, iurenile delinquents to be sent to, ... . 661 Htjdson, justices' courts in, 13, 21 jurisdiction of such courts in, 80 Husband and Wife, statutes relative to, 86 estate by curtesy, 86 chattels real, and debts due to latter, 86 debts of latter before coverture, 87 liability of former for necessaries, .... 87 adultery of either, 87 liability of former for acts of latter, . . 87 wife may act as agent, 94, 95 actions by. against, and between, .... 157 presumptions of survivorship, 317 former, when bound by admissions of latter, 353 latter cannot be witness against for- mer, 358 incompetent, as witnesses for and against each other, 866 husband, competent to prove mar- riage, 871 - HUSBAI«)3, cannot appoint agent, 94, 95 to sue and be sued in their own names, 202 Idiots, tender on behalf of, 224 incompetent as jurors, 290 incom])i?tont as wiLne--s(.'s, 864 Illegal cuntracts, what are, 7'5 fl.ctious not mahitainiible on, 75 examples of, 75, 76 in restraint of rnarriuicc and trade,. .. 76 [yec CoiUrdi'ls^ antl FraadideiiZ Contracts.] Implied Conteact^^, I6<,'ny i;;i|jtists on Saturday, 198 refusing to assist in execution of pro- cess, , 200 of defaulting witnesses, .-. . . 280 for contempt of court, 534, 638 [See Crimes, and Mmcutions.] Incest, what is, 606 punishment for, 606 Indentuees, [See Apprentices.'] Indians, d/vU, when competent as witnesses for themselves, 368 criminal, punishment for giving liquor to, 645 special, children of, when not to be bound ap- prentices, 711 Indictment, justice's title to office, may be ques- tioned by, 10 Infancy, personal piivilege, 90 cannot be pleaded by another, ...,.,. 90 cannot be assigned for error, 90 a disability, under statute of limita- tions 143, 146 how proved, 425 Infants, civil, age of majority, , 89 acts of, void and voidable, 89 must give notice of disaffirmance, ... 89 liability of, for necessaries, 90 cannot recover consideration paid, .... 90 must pay back consideration receiv- ed, 90 can liold property, 90 liability of, for wrongs, 90 ineligible to office, 90 when they may act by agents, 94 may act as agents, 94 may be partners, 1 00 cannot appear by attorney, 157, 200 actions by, 157 must appear by guardian 15S, 200 guardians of infant plaintiffs, 15S, 159 guardians of infant defendants, .... 200, 203 recoupment in .iftions by, 242 presumptions of hiw in respect to,. . . 321 burden of proof on, as to infancy, 334, 425 when competent as witnes-^us, 365 nrmnaZ, competent to testify as to crimes, 547 may be required to find sureties for appearance, 588 recognizance by sureties ■ for, as wit- nesses, 591 cannot become sureties, 639 886 INJ — I8S INDEX, IS& -jmo Page. Imjttries, civil, actions for, by personal representa- tives, 91 by neglect of roads, 94 to tlie person, 106 to real pr^ aga.nstjoiat defendant, not o^oanl^ V"45Q w hen to be rendered, 457 confession of, justices may take, 453 statute concerning, 453 defendant must appear, to authorize,. 454 examples of void, 454 several, on one demand, 454 form of, 454, 455 when to be on affidavit, 455 form of affidavit on, 4G5 9107VSWU, when to be rendered, 455 i^ansenpt of iitstices'', may be filed and docketed in county clerk's office, 458 when lien of, commences, 458 amount of, to be a lieu on real proper- ty, 458 former provisions concerning, 458 duration of lien of, 459, 460 in New-York, . . 460 must correspond with judgment, 46(t contents of, 461 prima facia evidence of judgment,. 461 may be given after expiration of office, 461 form of, 461 justice cannot issue execution after filing of; 461 crimm.al^ when complaint was malicious, 662 reversal o/j by certioraH, 674 certioiari^ by whom allowed, 674 \?hen certiorari to be applied for, ... 674 affidavit to obtain writ, 674 forn^ of certiorari, 675 when cerUorari not allowed, 675 to whom writ and affidavit to be de- livered, 675 return to, 676 copies papers to be served on district attorney, 677 when execution of sentence to be sus- pended 678 recognizance to be given, 678 when prisoner to be discharged G7S proceedings in supreme court, 679 BpeduZ^ satisfacHoTi of, justices may take acknowledgments, 696 by parties and attorneys, 699 forms for, Ti)6, 707 [See ^D^idence.} JtraiSDIOTION, of justices generally, 3 ci/vil, definition of term, 17 distinction between courts of general and special, 18 of the latter, must be shown, 18 judgments void for want of, 19, 86 can always be enquired into, 20 of inftsriur courts, never presumed, . . 20 consent will not give, as to subject matter, 20, 21 Jurisdiction, cvoil, once gained, cannot be lost, 20 when acquired, proceedings valid,.. . 21 of justices' courts, conferied by stat- ute, 21 how acquired as to parties, 2L territorial, of justices, 22, 81, 35 justices acting beyond, trespa^.^crs,. .. 25 ol^ieer protected, unless want of, ap- pears, 25 want of, must be total, to avoid pro- ceedings, 26, 36 want of, may always bo shown, 26 when iuAtices not obliged to exercise, 26 civil, of justices, 27, 28 of Marine court, 28,29,32 of District courts 29, SO, 3^ of justices' courts in cities, ,., 30 territnrinl, of justices, S4, 35 oftbe persdn, 35 coutesbion of judgment does not con- fer, 86 of actions for penaliies, &c., 114 in actions under m^iciia-nci" lien laws, 125, 130, 182, 136,140 when it may be conferred by consent, 205 plea to, 219 to 221 pli:;a to, when waived, 219 consent will not give, of question of title, 24T of actions on canal contractors" bonds, 894 justice's transcript musthhow, 465 crimiiud, of j ustiecs, 5 j9 to 544 co-extensive w^ith bounds of county,. 529 of coQrts of sessions, 589 of courts of oyer and terminer, 5S1> of courts of sp('ci.i! sessions, 642 to 646 pleas to, in criminal csiaes, 643, 649 criminal, of United Slates courts, 787 territorial, of tliose courts, 787 JURO RS, eie-U, ill actioTis for penaltie?, 118 how summoned, 235, 2S7 venire for, 286 punishment of defaulting, 288 qualifications and exemptions of, 239 to 293 challenges to, 294 to 297 oath to, 29T fees of in civil actions, 474 criiiiituil, punishment for corruptin n, 625 punislimentof, accepting bribes, 631 not entitled to fees, 653 oath to, 653 special, may be fined for non-attendance, . . . , 694 draining sicamps, bow summoned, 762 oath to, 770 duty of, 770 inquisition by, 771 fees, 772 liabitual drv/nkai'ds^ how summoned, 792 their duty, 792, 793 oath to, 798 fees 795 higli/ivaya and roitd.% how summoned, to re-assess damages, 805 oath to, in such case, 805 verdict of, in such case, 806 how summoned, when encroachment is denied, 809, 810 oath to, in such case, 810 certificate by, in such case, 810 fees, 814 landlord, and tenani, trial by, , 82T JUE — JUS INDEX. JUS — ^JUS Page. JlTBOEB, landlord and tenant^ precept for, in such case, 823 oath to. Id such cjisl-, 8:i8 [Seu Disorderly I^ernonH, and Jui-y.l JUKY, ciril, validity of chattel mortgage, a ques- tion for, ' • ■ ■ 54 demands passed upon by, extinguish- ed, 221 verdict of, when conclusive, 221 question of tender, for tiie, 224 trial by, when to be demanded, . . . 2S3, 285 •venire for, ^65, 288 drawing 293, 294 challenging, 294 to 'JUT swearing, 297 statement of action to, 297 statement of defence to, 3i 4 summing up to, . . 3i)5 charging, 305, aSO retiring of, 305, 3)'7 delivery of verdict by, 3(J7 toSlO disagreeing, new venire to issue, 308 may be sent back, 808 may be discharged on Sunday, 3U9 may be polled, 309 not to infer bad character of defendant, 825 to determine sutficiency of evidence,. 830 criminal how summoned, 653 court has no authority to try by less than six, 653 not entitled to fees, 6fi3 challenges to, 653 oath to, 653 punishment of ofB-cer refusing to take charge of, 694 [See Jurors.^ Justices, of Marine court in New-York, 12 of District courts in iNew-Tork, 12 Justices' Coukts, Marine court, in New-York 12 in Albany, ' 12,21 in Troy, 13,21 in llud'son, 13, 21 their j urisdiction limited, 17 and must be shown, 18 jurisdiction of, how created, 21 take nothing by imjilication, 21 powers of, in cities, 21 jurisdiction of parties, how acquired by, 21 causes of action co=rnizable in, 2T, 28 actions not cognizable in, 28 jurisdiction o^ m cities, 80 jurisdiction of, as to amount, Si territorial jurisdiction of, 34, 35 their jurisdiction of the person, 85 actions in, when to be bronglit, 80 no reply in, 21 7 jiiay amend pleadings, 2 1 S rule in, as to subscribing witness, 326 appeals from, 004 JUSTtOl'^fi OF TUB X-'bace, how formerly nominated, 1 how appointed in England, 1 iurisdietion of, in England, 2 jurisdiction of, in Franco, 2 their appointment in colony of New- York, 2 their jurisdiction in that colony 2,3 their appointment mider constitution ofl777, 3 number of, in towns, when first limit- ed, 8 selection of, under constitution of 1321, 8 term of offlce of, , 8, 4 Pago. Justices op the Peace, made elective, in 1826, 4 elected, under constitution of 1846,.. , 4 one to be elected annually, 4 qualifications of, 4 in Hector, 4 in Buffalo, 4 in Schenectady, 4 in Utica, 4 in Williamsburgb, 4 in Rocliester, 4 in Auburn, 4 in Syracuse, 4 in O'-wego, 4 certificate of election of, 5 to be notified of election, 5 election of, in new towns, 5 notice of drawing of, 5, 6 ciashification of, in new towns, 6 retain office, wlien town divided, .... 7 their official term cannot be shortened, 7 elected for regular term, g electors, to designate ofl&cial term of, . . 8 classification of, 8 elected to fill vacancy 9 when to enter on duties of office,.... 9 vacancies in office of, when filled, .... 9 to take oath of office, 9 to deposit oath in county clerk's office 10 wheu and where to file bonds, 10 eff'ect of neglecting to file oath or bond, 10 acting without taking oath or filing bond, guilty of misdemeanor, 10 but their acts valid as to the public,.. 10 their title to office, how questioned, .. 10 when office of, becomes vacant, ID, 11 to whom to present resignation, '..... 11 may be removed, 11 in Albany, 13 election of, in that city, 12, IS in Troy, 13 in Hudson, IS civU, their jurisdiction, generally, 17 trespassers, when acting without juris- diction, 20, 260 where to reside, 21, 34 territorial jurisdiction oi, 22, 34 process of, where to be served and returned, 22, 34 process of, when void, 23 now disqualified, 22, 23 interested or re lated, 23 to 25, 283 cannot sit in their own causes, 24 when not to try actions for penal- ties 25 issuing process without proof, tres- passers, 25 when acts of, voidable, 26, 33 when not obliged to act, 26 civil jui-isdietion of, 27, 23 may enter judgment by confe^-^ion, .. 23 actions not eognizriblo by, Dt- amount of jud^uieuts 10 bo rendered by " . t 81 their jnri-uictiou of matters of ac- count, 83 their subpcenas run to adjoining coun- ty, 35 whore to issue proress, 85 their jurisdiction of the person, S5, 86 can try actions by and against corpo- rations, , 92 their jurisdiction in actions for dam- ages, 105,106 their jurisdiction as to penalties, A:c, 114 when and how to endorse proces-^ 116 canal boats, when to be detained by... 118 have jurisdiction of mechanics' liena 122 JUS — JUS INDEX. JUS — ^JUS 889 JUSTICBS OF THE PbAOB, cwil, their duty under mechanics' lien law, 125 to 141 to appoint guardians for infant plain- tiffs 158,159 names of, must appear in summons, . . 162 to sign summous, 163 cannot depute official power, 164 tlieir authority to issue long summons, 164 wlicn to issue warrant, 165 when to issue body execution, 165 when to issue either summons or warrant, 169 when to issue short summons, 170 ■whtn to issue attachment, ITO, 172 may amend attachment, 174 when to issue short attachment, 175 issuing attachment without proof^ trespassers, 177 approval of, on attachment bonds,. .. 179 to appro^'e sureties on claimant's bond, 198 when to hear action commenced by attachment, 197 ma}' empower deputy to serve process 197 may amend clerical mistakes, 199 to appoint guardiiius for infant defend- ants 200 to endorse consent of such guardian, 202 cannot act upon their knowledge or appointment of attorney, 203 to wait one hoar after return of pro- cess, 203, 204, 260 failing to appear on return day, 205 their duty on return of warrant, 205 cannot be witnesses before them- selves, 205 cannot act on knowledge as evi- dence, 203, 205, 2S4 proceedings when they are material ^\itnesses 206, 207 may require party to exhibit account, 208 to enter pleadings in docket, 208 construction of pleadings by, 209 duty on sustaining demurrer, &c.,. .. . 214 not to buy demands for suit, 219 no jurisdiction when accounts over $400 238 nor of title to real property, 243, 247 to approve undertaking on plea of title, 244 duty, when title not disputed, 245 adjournments on motion of, 248, 249 to adjourn on motion of plaintifiF 249 when to grant adjournment on war- rant, 250, 251 when to commit witness, .... 251, 282, 300 to approve bond on adjournment, 254, 255 when to issue commission 261, 262 have discretion as to issuing commis- sion, 265 to settle inteiTOgatories, 266, 267 to direct return of commission, 268 may issue subpoenas 272 when to issue attachment against wit- ness. 274 when to fine witnesses, 278 to 280 to make minute of conviction of wit- ness 280 to issue execution on such convic- tion, 280, 281 to commit witness refusing to testi- fy, 282,300 when to try action 288, 28.9 cannot have partners, 283 trying causes, to swear witnesses, .... 254 cannot decide on their own knowl- edge, 234 eneral rules as to trials by, 288 to 2^5 when to issue vemre, 285 Pago. JUBTIOKS OF THE PeAOE, cirnl, to whom to deliver venire, , 286, 28T when may issue second venire, 288, '293 when to discharge and excuse ju- rors, 291 to 293 drawing of jury by, 293, 294 to determine principal challenge,.. 294, 295 cannot challenge panel of jurors, 294 swearing the jury by, 29T to deciao upon competency of wit- ness, ... 298 swearing witnesses by, 299, 300 to decide upon objections to evidence, 802 when to nonsuit plamtitfs, 303, 304 charging j ury by, 805, 880 to swear officer taking charge of jury, 8o5 nut to interfere witli jury, 306, SOT to enter verdict in docket, 8o7 to call plaintiff to receive verdict, .... 808 to issue new -oenire when jury disa- gree, 808 may send jury back to reconsider ver- dict, 308 may receive verdict on Sunday, 309 when, cannot give judgment for vari- ance, 810 proceedings of, presumed to be regu- lar 818 to determine admissibility of evi- dence, 830 may reject irrelevant evidence, 331 may change order of evidt-nce, 882 to exclude as witnesses persons intoxi- cated, 865 transcripts of dockets of, In adjoining states, evidence, 392 in adjoining states, may prove dock- ets, 893 can try actions on canal contractors' bords 894 to enter judgment by confession, . .4583 455 when to enti^r judgment, 456, 457 when to enter judgment in docket,... 457 to give transcripts of judgments, 458 to aive transcripts of judgments and pleadings, on default, 461 their fees for such transcripts, 461 may certify transcript, after expiration of office, 461 cannot issue execution, after transcript Isfiled, 461 what to enter in docket, 462, 463 form of entries by, in docket, 463 to certify copy of docket, 4iJ4 docket of, evidence, 465 transcript of docket of, evidence, .... 465 to certify transcript of docket, 465 transcript must show jurisdiction ofj 465 may make oath to docket, 466 proceedings how proved, after death of, 466 may identify pleadings, 466 to file papers and affidavits, 467 to keep index of judgments, 467 removing, wliere to deposit papers,.. 467 removed, where to deposit papers, . . . 467 to certify book of minutes, 46T to render judgment with costs, 468 fees of, in civil actions, 472, 473 not allowed fees for ad vice, 475 receiving illegal fees, guilty of misde- meanor, 476 may demand fees in advance, 476 their duty as to executions, 476 to 503 neglecting to pay over money, guilty of a misdemeanor 508 notice of appeal, to be served on, 505 fee of, on return to appeal, 505, 508, 512 to approve undertaking on appeal,. . . 507 when to make return to appeal, 608 890 JUS — ^JTJS mDEX. JITS — ^JUS Page. JtrSTIOKS Off THE PBAOE, form of return by, to appeal, 608 cHnvmaZy criminal jurisdiction of, ........ 529 to 544 must be exercised in county, 529, 530 may arrest fugitives from justice, . . , . 5)31 their autliority as conservators of the peace, 581, 532 statute of limitations as to jurisdic- tion of, 631 issuing process, act ministerially, .... 544 liable for ministerial acts, 544 rule as to liability of, 545 duty as to criminal complaints,.. , 54T, 548 to add jurat to complaint, 563 when justified in issuing warrant, 568, 564 when to issue warrant, 565 how to draw warrant, 565, 566 how to make warrant returnable, 566 to 569 to whom to direct warrant, 569 tbeir duty when accused is in jail,. . . 573 when to endorse warrant, 575, 576 not liable for endorsing warrant, 576 general directions as to talcing exami- nations by, 580, 5S1 maybe associated with each other,.. 580 may commit prisoner for fui'tber ex- amination, 531 how to take testimony of prosecu- tion, 581,582 may take testimony of accomplices, 582 not to hold out hope of pardon, 582 how to take examination of pris- oner, 582,587 to caution prisoner, 583, 584 discretion of, as to such examina- tion 588, 584 to write down answers of prisoner, . . . 585 to certify examination of prisoner,. .. 585 to exclude witnesses, while prisoner is examined 585 may commit prisoner for contempt, . . 587 when to discliarge a prisoner, 587 when to bind over complainant and witnesses, 587, 588 may commit witness refusing to be bound, 588 where to certify examinations, &c., 589, 590, 591, 641 how to draw recognizance for a wit- ness, 590 may be compelled to return recogni- zance, &c., 691 when to commit prisoner, 592 when not liable for committing pris- oner, 618 wrongfully taking bail, guilty of es- cape, 688 powers of, to bail under acts of Con- gress, 638 to make return to certiorari^ 676 fees of, in criminal cases, 687, 6S8 affra/ys^ to quell affrays and riots, 533 may com mand assistance to do so, . . , 633 may command arrest of rioters, 633 (^miempts of courts when, may commit for 688, 584 what punishment to inflict for, 684 may arrost olfender, 534 to hear oifender in defence, 534 when to convict offender, 686 to make up record of conviction, .... 536 to file such record, 537 to issue warrant of' commitment, 537 d/ymg dsclaraiionfi, how and w hen to take, 588, 689 searcli wsning war- rant is absent, 740 JUS — JITS ESDEX. JTJS — JTTS 891 rage. Justices op the PuAoai, , fei^s, 746 oeggarsand vagrants^ to be brought before, 747 to make record of conviction of, 747 ■where to commit, 747 where to fllo record, 748 to arrest persons in disguise, 749 to commit children begging alms, 750 ft-'es 750, 751 depositions to Ije^ifSed i/n other states, when to take, 849 how to take, 849 may compel witnesses to appear, 849 fees, S50 disorderly persons, when to order arrest of, 752 to bind over, for good behavior, 7^2 to retain recognizance, 753 when to make up record of conviction, and commit, 753 dut}'" of, after recovery on recognizance of, 755 two, to grant discharge of, 755, 756 disturbance of religiovs meetings, ob- servance of Sunday, a>nd profivne cursing and swearing, when to issue warrant for offender, . . 75t when to issue execution, 759 to file certificate of conviction, 759 may convict summarily, 760 when to commit ofi'ender, 761, 765 when to issue veyi ire, 762 when to convict on their own knowl- edge, 765 fees, 766,767 dogs, to order dangerous, killed, 767 fees, 768 draining swamps, to issue summons, 769 to attend on return of summons, .... 770 to swear jurors, 770 to file map and inquisition, 771 may summon new jury, 772 fees, 772 eeacise and taverns, \^QQ Excise aTid Ta/vern^.\ Jiremen, and supervisors, to appoint, 850 and fill vacancies, 850 fees 850 firing of woods, to order fires in woods to be extin- guished, 850 fees, 851 forcible entry an/l rleiain^r, powers of, in New- York, under stat- ute relative to, 851 fees, 851 fuglt) res from justice, from other states^ may arrest, 783 when to commit, 784 to notify district attorney of arrest of, 785 and make return to court of sessions, 786 gaming and lottery tickets, ^ when to issue warrant, 788, 789 when to retain property, ,,,. 789 fees, •.. 790 Tiotdtual drunkards, to give notice of application by, for a jury 791,792 how to conduct trial of, 792, 793 to enter verdict, 793 when to enter judgment against,. .. 793 how to issue execution against, 793 when to enterjudgmentin favor of,.. 794 how to issue execution on such judg- ment, 794 , fees, 795 Page. Justices of the Peace, Jiwickers and pedlers^ when to commit, 796 when to con vict, 797 wlien to is^ue warrant against, 79T to whom to pay penalty collected from, 798 fees, 799 highways and roads, to issue summons against party refu- sing to work, 801 when to impose fine, 802 and issue warrant, 802 not liable to action, 803 to whom to pay fine, 803 when to issue summons for jury to re- assess damages, 805 to draw and swear such jury, 805 to swear witnesses, 806 to certify verdict, 806 form of certificate by, 807 duties of, on assessment of damages for laying outprivate 807 to issue precept for jury, when en- croachment is denied, 809 to annex list of j urors to precept, .... 810 to swear jury and witnesses, 810 when to issue warrant for costs, 812 when to issue second precept, 813 fees, 813 la/ndlord ompeal to coiudij court, how taken 833 security on, to pay rent, 833 affidavit on, to pay rent, 833 affidavit for, 883 notice of, 883 copy affidavit and notice to be served, SS4 undertaking on. S;^ decision on, final, 884 Lahdlokds. actions oy, for rent, , 64 manure belongs to, 123 when rails do not belong to, 122 tenants' possession, their possession,, 143 Lands, contracts relating to, 63 LAIT ^LIM INDEX. LIM; — MAK 893 _ Page. actions for use and occupation of. 64 question of possession of, not one of ti- tle, 24T [See Heal Fropertij.'] Laboent, complaint for grand and petit, 549 ■warrant for grand and petit, 570 ■what is granil, 60T, 630 punishment for, 607,630 petit, what is, 642 punishment of, 657 La"W8, of other states ^ow proved, 338, 389 secretary of state to certify, 411 Lrases, when requirad tobe writtr^n, 63 of unpaid taxes, in villages, 411 [See JEoidence, and Sealed Insii'u- Legislature, cannot shorten term of office of justi- ces, 7 exemption of members from arrest,. 183 copies paperd presented to, evidence,. 405 not exempted from criminal arrest, . . 545 [See Evidenoe.'\ Lenox, turorsln, 2S9 Letteks, penally for sending threatening, 635 of adinin Utration^ by whom issued, 91 of attorney, evidence, 293 testamentary^ by whom issued, 91 Lett, [See Execution.'] IiEWIS CotTNTY, jurors in, 289 Liability, of bailees, 57 to 60 of common carriers, 58 of husbands, 87 of parent^, 88, 89 of infants, 90 of corporations, D"? of principal, for acts of agent, 96 of agents, 97 of partnership firms, 101 to 103 actions upon, when to be com- menced, 143, 144 actions upon, when several, 159 of officers, for escape, 186 of constables, for property attach- ed 190,194 of guardian of infant defendant, for cost^ 201 of surety, on undertaking, on plea of title, 243 of constables' sureties, 503 rule as to, of justices, 546 of complainants in criminal cases,... 546 of justices, for committing prisoner,.. 618 Libel, justices cannot try civil actions for,, ., 28 actions for, abate by death, 91 actions for, when to be commenced, . . 144 Liens, J bailees, for services 60 duration of, created by attachment,.. 193 of justices' judgments, 453 to 460 [See 3Iedianic8'' Liens."] Limitations, of mechanics' liens, 124, 181 statute of, construction ot, 148, 149 computation of time under, 149 as to accounts, 149 must be pleaded, 150 I Limitations, statute of as to promissory notes 160 evidence to support plea of, 426, 427 as to crimes and offences, 533 Limited Partneesuii'S, acknowledgement of certificates of, . . . 853 [See Partnsre/iips.] Liquidated Damages, [See -Damages.] LiQUOES, penalty for furnishing, to habitual drunkards, 790, 791 Livingston County, jurors in, 289 LOAIJS, usurious, cannot be recovered back, ... 74 c&nmiissioners of certificates of evidence, 406, 407 executions against, 479 Lottery Tickets, [See Gairvin^ and Lottery Tlcketn,'] Lower Canada, proof of conveyances made in, 39T LUU ATIO ASTLUM, officers of, exempt from jury duty,... 290 [See LiLiiailcs.] Lunatics, cannot appoint agent, 94, 95 to sue and be sued in their own names, 203 ■when infants, must appear by guardi- an, 202 when of full age, by attorney, 202 incompetent as witnes'-es, 364 committee of, when to send, to asy- lum, a35 when parents of, to send, to asylum, . . 835 overseers of the poor may collect costs of confi,ning 835 when to be apprehended, 836 ovorseers of the poor, when to apply for warrant for, 886 contents of such warrant, 836 asylnm to be speciiied in warrant, 836 insanity of, to be proved, 836 testimony to be written and filed, .... 836 overseers of the poor, to designate place of confinement of, 836, 837 warrant to conline, 837 county clerk, to fi.le papers, and give certificate, 837 admission of, to state asylum, 837 fees, 837,838 MAIL, notice of protest may be sent by, .... 69 Malioe, when presumed 822, 823 legal meaning of term, 828 Malicious Peosecution, justices cannot try civil actions for, ... 28 Malicious Mischief, complaint for, 561 Mandate, definition of term, 67 Manslaughter, complaint for, 653 in the first and second degrees, 608, 609 punishment of, in the fi.rst and second degrees, 609 in the third and fourth decrees 631, 633 punishment of, in the third and fourth degrees 633 Manufaotueing Companies, certificate of incorporation of, evi- dence, 408 Manure, belongs to landlord, 123 belongs to farm, 49d 894: MAE — MEO INDEX. MEG — HON Maeine Court, is a justice's court, ,, 12 number and election of justices of,. .. 12 clerk of, 12 compensation of officers ofi 12 powers of, 21 jurisdiction of, 28, 29 ha3 jurisdiction of mecUanlcs' liens, 122, 135 adjournment in, on motion of plain- tiff, 252 commissions in, 271 costs in, 469 appeals from, • ■ • • 504 commitments for contempt in, 538 powers of justices of, as to forcible entry and detainer* ^^^ ^1 contrifcts in contemplation o^. 85 when actions do not abate by, 159 when husband competent to prove,.. 371 certiiicate of, evidence 408 punishment for seduction, 6S4 Markiagb Ceetifioates, justices, to give, 840 contents of, 840 form of, 840 ministers and priests, to give, 841 when certified, may bo filed, , S41 Maeriages, justices may solemnize, 838 requisites to validity of, 838 age of consent to, 838 before age of consent, voidable, 888 consent to, must be voluntary, 639 consent makes valid, 839 ages of parties to, to be ascertained,. . 839 registry of, to be kept ! 839 contents of such registry, 839 solemnization of, improperly, a mis- demeanor, 839, 840 form of ceremony, 840 certificate of, to be given, 840 form and contents of such certificate, 840 ministers and priests, to certify, 841 when certificates of, may be filed, .... 841 fees, 841 Married Women, separate property of, 85 may inherit, 85 may convey and devise, 85 trust estates of, 85 wlien they may act by agents, ....... 94 may act as agents, 94 statute of limitations as to, 143, 146 actions by and against, 157 arrest of, on civil process, ls4 service of subpcena on, 274 conveyances by, in other states, . ... 4U0 criraiTUil^ may be required to find sureties for appearance, 583 recognizance by sm'eties for, as wit- nesses, 591 cannot become sureties, 639 special^ acknowledgment of conveyances and grants by, 697 Masters, [See ApjprmUc6s:\ Mathem, complaint for, 554 what is, 6U9 punishment of, 609 MEOnANKJs' LliCNS, in cilii.'S, and certain villases, 122, 123 agsre;;iito of, on otte buildlog, 123 steps necessary to secure, 123, 126 when tliey attach, 124 duration of, , . . 124 how discharged 124, 127 I liow romovod by owner, 124, 125 | Mechanics' Liens, how enforced, 124 to 128 amount of, 126 when lost, 126 4m, particular locaUti-ea, Buffalo 124 Dutchess county, 188 to 141 KinKston, 128 New'burgh 188 to 141 New-Tork 184 to 187 I'utnam county, "• 38 to 141 Eenesclacr county, 138 to 141 Richmond county, 12% to 181 Eockland county, 135 to 141 Ulster county, 131 to 134 "W estchester county, 188 to 141 Memoeasdums, under statute of frauds, 40, 46 of auctitm t^ales, 49 of sales under executions, 495, 496 Mesne Process, married women cannot be arrested on, 184 Mexico, what coins of, are a legal tender, . ... 226. conveyances by officers and soldiers in, 397, 398 Mile-Stones, punishment for destroying, 644, 657 Militia, when exempted from arrest, 184 when public oftiotrs may order out,.. 199 exempted from jury duty, 291 evidence of service in, 292 double costs, when allowed to officers of, 470 security for costs in actions against officers of, 471 Militia Officers, iustices may administer oaths to, 709 MiNOES, [See InfanU. and Parents aiid C'dh/ren.] MmUTES OP CON"VICTION, of defaulting wituess, ... - 280 [See Oonvzctio7if and GerUficates.] MiSDEMI-ANORS, justices acting before taking oath and filing bond 10 instituting actions maliciously, 156 neglecting to fill up process, 163 arresting females on civil process,. .. 184 taking reward, «fcc, from prisoners, &c., 1S6, 13T, 183 serving process on Saturday, on per- sons obser\-ing that day, 19S justices refusing to take affidavit,... 207 justices buying demands for suit, 220 constables buying demands for suit, . . . 220 conviction for, does not disqualify as witness, . 865 giving or selling liquor to Indians,. . . S6S taking illegal fees, 476 constables taking rewards 495 justices neglecting to pay over money, 503 inserting names of prisoner's wit- nesses in people's subpteua, 654 taking illegal fee^, 689 taking acKuowledgments improper- ly,.. 698 solemnizing marriages improperly, 889, 840 refusing to extinguish fire in woods,.. 861 [See Ci"u-inifuient.% Crimes, and Qifences.'] Mistake, recovery of money paid under, 61 llnTIMUS, [See Commitments.l Monky, actions for, paid, laid out, Ac., 61, 63 recovery of, on illegal contracts, 61 MON — NOT INDEX. NOT — OAT 895 Monet, recovery of, paid under mistake, 61 MoMEOE County, jurors in 289 juvenile delinquents in, whero to be sent, 661 Month. computation of, 638 MOKTGAGKES, ■with noUce, not protected, 63 title of articles mortg^ed, 55 MOKTGAHF.S, of chattel? 50 forms fur satisfaction of, 705, TU6 [See Chattel Mortgages^ CoTvo&ycmces^ and Inatrumeivts.l Motion, to strike out irrelevant matter, 209 [tiee Pleadin^s.'l MUIIDKII, complaints for, 549, 550 statute detiuition of, 593 NATT, exemption of employees in, from arrest, 184 Neckssauies, liusband is liable for, 8T when parents liable for, S3 ^ liability of infants for, 90 Ij L/ ; evidence of, bow rebutted, 426 Newburgii, mecbanics'' liens in, 183 to 141 police j ustices in, 519, 520 New- York, justices how appointed in colony of, 2 their j urisdiction therein, 2, 3 Marine court in, . ..^ 12, 21 judicial districts in, 12 District courts in 12, 21 jurisdiction of Marine court in, .... 2S, 29 jurisdiction of Distinct courts in, 29, 30 chattel mortgages in, where to be filed, 52 mechanics' liens in, 134, 137 exemption of firemen in, from jury duty 291 proceedings of common council of, evidence, 895 proclamations by mayors of, how proved, 395 register of, to certify transcripts of records, 401 transcripts of justices' judgments in, 460 police justices in, 520 special sessions in, 667 to 669 powers of justices in, as to forcible entry and detainer, 851 Next Friend, married women, when to appear by, 16T Niagara (Jottntt, jurors in, 289 NoN- Deliveet, damages in actions for, 450, 451 NoN -Ees idents, when plaintifis, to give security, 153, 168, 170 process against, when defendants, 170, 175 affidavit for short attachment against, 178 Nonsuit, on non-appearance of plaintiff, 203 in actions on demands bought for suit, 220,221 not a bar to a new action, 221 when to be granted, 308, 3i i4 judgment of, when to be rendered, . . . 455 NoBTH America, proof of conveyances- made in, 897 Notaries Ptjbho, official acts of, how proved, 434, 435 Page. Notes, [See Promissory/ JT'otes.} Notices, drawing of justices,.,, ^ 6 civil, of viciousness of domestic animals, to be given, 112 of appointment of guardian by plain- tiff, 201 in actions on demands bought for suit, 220 of set-off, to be ^veu 286 effect of not giving such, 28T of recoupment, to be given, 240 of application for a commission, 263 form of such 263 to party, to be examined, 372, 873 of examination of assignor, 376, 377 affidavit of publication of legal, .... 410 to produce private writings, 413, 415 of prote.^t, 434, 435 of sale under execution, 489 of appeal, 504 of filing undertaking, 508 of arguuient of appeal, to be given, . . 510 C7'i'/ni7ial, of argument of certiorari, to be ^veu, 67T ^evial^ designating habitual drunkard, 791 of application by habitual drunkard for a jury, 792 to tenant who lias deserted premises, 815 to landlord, of appeal, 81T of intention to re-enter demised premises, 818 to pay rent, or quit, 819 of appeal, in proceedings to remove tenant, 833 OATHS, justices to take oath of office, 9 form, 9 civil, constable may administer, to surety,, . 191 of service of notice of application for commission, 264 to procure commission 265 commissioner's, to witness, 270 to prove service of subpoena, 275 on objection to constable, 2.S7 on trial of challenges, 295 to jurors challenged, 296 to triers, 296 to jurors, 297 to witnesses, 299 of materiality of witness, 301 to constable, on taking charge of jury 305 crimi}ud, to complainant and witnesses, 548 to jurors, 653 to witnesses, on trial 655 to constable, on retiring with jury, . . . 650 special, to subscribing witness to convey- ance, &c., 707 to witness proving identity of parties, or of witness, to a cnveyanee, 707 justices may administer, 708 form of, to town officers, 7o9 to a deponent, • ■ 709 to jurors, on proceedings to drain swamps, 770 to iurors, on trials of habitual drunk- ards,... 793 to witnesses, on such trials, 793 to jurors, on re-assessment of highway damages, 805 to wiLuej':'e-i, in like cases, 605 81>6 OAT — PAE INDEX. PAR — PAT Oaths, Page. to jurore, when encroachment Is de- n'iefl, 810 to witnesdes, in like ciises, 810 to jurors, nn triiils hetween landlord and tenuut, 828 to officer, to keep jury, in such case,.. 839 justices may administer, to arbitrators, 849 Observance of Sunday, offender to be brought hefore a justice, 757 warrant for that jnirposo, 757 reel ird of conviction, to be made up, . . 758 conviction, final, 758 when proceedings may be instituted,. 758 execution to collect penalty and costs, 759 certificate of conviction, to be filed,. . . 759 form of such certificate, 760 statute concerning, 763, 764 warrant to seize goods forfeited, 764 liquor, not to hu sold on Sunday, . . 764, 765 penalty for selling liquor on Sunday,. 765 fees 766, 767 Offences, punishment for attempt to commit, 597, 621 punishment for compounding, 624 [See Gri/mes^ and ConvproTnise ofOf- /e7ices.'\ Office, Infante, ineligible to, 90 Ogden Company, papers and field-notes o^ evidence, . . . 405 Oeange County, fees of justices of sessions in, 852 Oeleans Codntt, jurors in, 289 Oswego, two justices in, 4 mechanics' liens in, 123 police justice in, 520 special sessions in, 669 Otbkseer of Highways, vacancy in ofiice of, how filled, 859 OVERSEEES OP TUE PoOR, when execution to issue against, 479 may bind out apprentices, 711 where to deposit copy of indentures, . . 712 vacancy in ofiice of, how filled 859 [See BaMarda, Ildbitual Drwrik- ards^ JIa/wkers a/nd PedlerSj lliglvwaya and Roads, LimaUcs, and Parents Absconding.] Oybe and Terminer, jurisdiction of, 589 PARENTS,,*,' /: , /a^-^- . ^-''Vo,<:f^ [9ee lAMiatics.'] Parents Absconding, ' ^' - property of, of bastards, may be seized, 748 warrant for that purpose, 743 property of, when to be seized, 842 form of warrant to seize property of,. 842 overseers of the poor may take prop- erty of, 843 Bales by, after warrant issued, void,.. . 843 overseers of the poor to return inven- tory to court of sessions, 843 when entitled to property seized, 843 to give security, 843 form of such security, 843 fees, , 844 Parents and CniLDREN, statute requires former, to maintain lat- ter, 88 neccssaiies, 88 step-fathers, 89 step-children, 89 Parol Evidence, * [See Evidence.'] Parol Contraots, [Sfe Contracts.'] Page. Pabties, jurisdiction not conferred by consent of; 20,21 jurisdiction of, how acquired, 21 actions cognizable by justices when people are, 28 residence of, to give jurisdiction, 86 both, must be privy to usury, .... 74 character of, must be stated in process, 162 may defend in person, 200 rights of, to due-bills, 227, 228 may adjourn cause beyond ninety days, 257 may waive irregularity of ad joumment, 260 may agree upon interrogatories, 266 foi-m of assent by, to interrogatories, . . 267 may try their own causes, 283 may prove death or absence of sub- scribing witness, 298 may poll the jury, 309 identity ot; presumed from identity of names, 318 admissions by, 849, 350 competent as witnesses, 370, 871 in interest, competent as witness&s, 371, 372 examination o^ 872 to 877 may prove loss of instruments, 418 may prove death or absence of sab- scribing witness, 417 hand-writing of, how proved, 417 Partners, who may be, 100 what constitutes, 100, lol powers of individual, 100, 101 notes given by, 101, 102 partnership of, how dissolved, 102 jtowers of, after dissolution, 102, 103 acknowledgment by one of several, 102, 349 powers of surviving, 103 payment by one, 108 actions between, 103 evidence of partnership, 108 entries in books of, 104 rights of, between themselves, 104 payment by one, after dissolution, .... 104 general and special, 104, 105 set-off of note of. against firm, 238 justices cannot have, 233 Partnership, definition of, 100 who may enter into, 100 how formed, 100 what constitutes, 100, 101 how dissolved, 102 efftjct of dissolution o^ 102, 103 evidence of^ lOS f)roperty of, how applied, 104 imlted, how formed 104, 105 transaction of business hy limited. 105 once shown, presumed to continue,. . . 827 evidence of, 427, 428 Paw^, definition of term, 68 [See Pledges.} Pawn-Brokers, warrant, when to Issue against, 845 powers of constable under such war- rant, 845 claimant executing bond, entitled to property, 845 form of such bond, 845 property, when to be re-delivered to, . 846 i-ees 846 Payee, definition of term, 65 where to endorse name, 66 [See Pro7)vlsao7-y Notes,] Payment, actionsnotmalntainahlefor voluntary, 62 rule as to application of, 71 by note of third person, 74, 75, 429 by debtor's note 74,^9 PAT PET INDEX. PEW — PLA 897 Payment, in bank bills, 75 of judgments for penalties, 118 etFect of partial, by one of several joint debtors, 150 demand of, on chattel notes, 223 in forged paper or base coin, 226 in worthless bank bills, 226 in counterfeit bank notes, 227 . of due-bills 227, 228 by defendant, in actions on bonds,. . . . 281 or money into court, 281 evidence of, 428, 429 Peace, [See 8'U/rety ofilm Peace.} Pedlers, [See Emokera cmd Pedlers.l Pbkalties, venue, in actions for, given to towns, 26 actions for, in justices' courts, 27 husband liable for, incun-ed by wife,. . 87 actions for, 114 to 117 actions for, for cutting down trees,. . . . 115 recovered, where to be paid, 135 venue, in actions to recover, 116 given to any person who will sue, 116 actions for, when commenced, 116 compromise of actions for, 116 endoi-sement of process in actions for,. 116 pleadings in actions for, 117 imposoa by by-laws of corporation, . . 117 cannot be raised by implication, 117 one, for one offence, 118 double or treble, how found, 118 when moiety given to people, 118 jurors in actions for, 118, 290 statute of limitations as to, 144, 145 of bonds for attached jtroperty, .... 192, 193 for violating excise law, 779 for selling liquor to apprentices, 779 for selling liquor to habitual drunk- ards, 791 for peddling goods without license, . . . 796 for not showing pedler's license, 796 for obstructing highways, 807 for injuring highways, 808 for obstructing water courses, &c., .... 808 for not removing fences, 809, 812 for refusing to extinguish fire in woods, 850,851 Peejuby, conviction for, disqualifies as witness, 865 complaint for, 560 what is, 609, 610 punishment of, 610 punishment of subornation of, 610 punishment of attempts to induce,. . . 622 Personal Property, venue in actions for, distrained, 85 actions for injuries to, 110 plaintiff must have possession, or a right thereto, 110, 111 examples ofactionable injuries to, 110 to 112 statute of limitations as to actions for 144 complaint for injuries to, 212 complaint for conversion of, 212 possession of, evidence of title, 328 admissions by vendors of, 354 Personal Kepresentatives, [See Ad^nimstt^aiors, and Moeeidora.'] Persons, actions for injuries to, 106 such actions, when to be commenced, 144 PKBtr, what coins of, a legal tender, 226 Petit Larceny, complaintfor, 549 warrant for, „ 570 what is, 642 no accessories in, 642 58 Page. Pew, real estate, 64 [See jScceouUons.] PmLADELPmA, proof of conveyances made in, 897 Physicians, communications to, when privileged,. 363 [See Manslaicghtev.] Place OF Trial, actions for injuries to real property,. . . 85 actions for personal property distrain- ed, 85 penalties, 85 actions against public officers, 35 Plaintiffs, residence of, to give jurisdiction, 85 non-resident, to give security, 158, 168 may conduct action in person, 157 guardians for infant, 158 who may be, 159 warrant in favor of non-resident,.. 165, 166 to be notified of defendant's arrest, . . . 169 to elect between warrant and sum- mons, 170 bond and affidavit by, for attach- ment, 172 to 174 when entitled to short attachment, . . . 175 may take out summons after attach- ment, 196 appointment by, of guardian for infant defendant, 201, 202 requiring testimony of justice, must discontinue, 207 to prove cose, 217 witness, in actions on demands bought for suit, 220 entitled to amount tendered, 280, 231 recovering less than tender, to pay costs, 231, 333 entitled to money paid into court, . . . 288 set-otf by defendants against, .... 233 to 240 notice of set-off to be given to, 286 judgment for, on set-off, 236 undertaking to be given to, on plea of title, 244 questioning title, : 245 adjournment on motion of, 249 to 252 when entitled to commission, without notice, 262 statement of action by, to jury, 297 Introduction of evidence by, 297 examination of witnesses for, 802 when to be non-suited, 808, 804, 465 to be called to receive verdict, 808 juay remit excess of verdict, 310, 456 may be called to prove usury, 369 and that demand was bought for suit, 869, 370 joint, must prove joint contract, 421 must be free from fault, 110, 111, 447 judgmentfor, after trial, 456 costs of, recovering double or treble damages, 470 when to give security for costs, 471 &t>idencs by, in actions on contract, 422 in actions against common carriers, 422, 423 in proof of damages,. . . 424, 425 to avoid defence of infancy, 425 pleading statute of limitations, 426, 427 of partnership, 4.7, 428 in answer to plea of payment, 428, 429 in actions on promissory notes, . 429 to 436 to avoid a plea of tender, 487 in actions of trespass, 437 to 440 in actions of trespass on the case, . . 440, 441 in actions of trover, 441 to 443 Plank-Koad Companies, copy articles of association of, evi- dence, 408 transfer books of, evidence, 4(. 9 898 PLE POL INDEX. POO — PEG Pago, Pleabtkgs, in actions for penalties, 45, 117 in a':tions by and against public offi- cers, 161 character of parties, to be stated in,. , . 162 when to be made, 207 object of, 208 difl'crent kinds of, 208 may be oral or in writing, ' constraction of, I judgments, how to be stated in, I peiformance of conditions precedent, how to be stated in, : private statutes, how to be stated in,. 210 no reply in justices' courts, 217 when pleadings may be amended,. 218, 304 effect of variance between, and ' proof, 335 [See Araendinents, Aneioer, Com- plaint, and Demurrer.'] Plea of Title, not a bar to action for obstructing ruad, 807 Pleas, evvil, in abatement, abolished, — 168 to jurisdiction, when and iiow made, 219 to 921 to iurisdiction, when deemed waived, 219 of iformer action, 221, 222 of payment, 222 of tender, 22^ to 233 of title, 243 to 247 criminal, to the jurisdiction, when proper, 643 form of, 649 in abater/iemt, when proper, 649 should be verified, 650 form of, 650 apecidl, in liar, goes to the merits, 650 what are good as 650 pleading over, after, 650 form of, 651 [bee Pmfm&nt, Fleadmg, Tendet\ and IWe to EeaZ Properi/y.'] Pledge, definition of term, 58 difference betWeen, and chattel mort- gage, 60 title to, in debtor, 60 must be delivered, 60 when to be redeemed, 60 POKON, punishment for administering, to ani- mals 594,643 punishment for selling, without la- bels, 643,644 POIBONING, complaints for, food and wells, 555 punishment o^ food and wells, 610 punishment for, cattle, 688 Police Justices, jurisdiction of, generally exclusive,. . . 4 Albany, 515 Auburn, 516 Brooklyn, 517 Buffalo 617 IClngston, 518 Newburgh, 519 New-York, 520 Oswego, 520 Pougbkeepsie, 620 Rochester 521 Bitratoga Springs 522 Bchcnectady, 523 Syracuse, 526 Troy 526 Williamsburgb, 527 POOK-HOUBES, keepers of, exempt from jury duty,. . . 29t POBBB CoMITATUe, when it may be ordered out 199 POUQDKEEPSIE, special sessions in, 669 POWBBB, of agents, cannot be delegated, 95 PkE8UMI*TION8, in favor of public officers, 31 S [See MhidenA^.] PfilNOrPALS, may act by agents, 94 how, 95 when bound by acts of agents, 95 to 98 must express dissent, 9Q agents to account to, 98 when not bound by acts of agents, ... 99 when bound by declarations of agents, 841 admissions o^'against surety, 353 agents, competent as witness against, 872 [6qq Ag&nts.] Print RR8, affidavits by, of publication, 410 Prisoner, rights of; under civil process, 133 may be conveyed through different counties, 1S3 cH/miTuil, when and where to be searched, 54^} escaping, may be re-arrested, 575, 577 not liable to arrest on civil proces, .... 57i disposition of; while awaiting exami- nation, 580,531 may be committed for further exami- nation, 531 may employ counsel, • 582, 583, 5S4 may cross-examine witnesses, 582 statute authorizing examination of, 582, 583 may decline answering, 563 when he need not be examined, .. 533, 584 when he must be examined, 5.S4 not to be examined on oath, 584 answers of, to be written down, 585 should he kept separate, 5S5 witnesses for, to be sworn and exam- ined 585 forms of examination o^ 586 may be committed for contempt, .... 587 when to be discharged, 5?T punishment for aiding, to escape, .... 594 to what prison to be eommitt^ 613 may be detained to prepare TmtimmiS, 614 may demand copy miWim^m, 618 may be discharged, on giving bail, 624, 641 when to be bailed, 624 to 636 may waive examination, 638 warrant to liberate, 641 may pay fine to sheriff 661 may apply to county court to remit fine, 661 [See Bail^ Commitments and Judg- ments,'] Private "WRrriNGS, [See Evidence,] Peooesh, yi/aU, jurisdiction acquired by service of, . . 21 where it may be issued by justices, 22, 84 of justices, how served and returned, 22 of justices, when void, 22 officer serving, when protected, 25, 199 when and how to be endorsed, 116 service of, in actions for penalties, 113 guardians, to be appointed before issu- ing, ]53 actions, how commenced without, . . . 161 different kinds of, lei long summons, 161 to 165 character of parties, to be stated in, . . 162 PEO PEO INDEX. PEO — PUT 899 Page, of jiistices, tp be signed, 168 but need not be sealed, 168 to be in name of people, 168 to be in English, 168 not to be made returnable on Sunday, 165 nor to be issued on that day, 165, 166 of the service and return of, 180 to 200 married women, cannot be arrested on mesne, 184 what is mesne, 185, 186 not to be executed on Sunday, 198 service of, on Jews and Seventh Day Baptists, 198 not to be served on election day, 199 copy of, to be given, 199 return on, 199 criminal^ not necessary, for violation of Sunday, 633 issuing of, a ministerial act, 544 when it is regular on its face, 572 special, officers bound to execute, 693 in actions uDder excise law, to be en- dorsed, 780 and in actions for obstructing high- ways, 808 [See Attachments^ SuTmnon-s, SuJ)- pce?ia8f and Warrmits.'] Propane CuKsmG and Sweaking, offenders to be brought before a jus- tice, 757 warrant for that purpose, 757 record of conviction for, to be made up, 758 conviction, final, 758 when proceedings must be instituted, 759 execution to collect penalty and costs, 759 certificate of conviction to be filed,. . . 759 form of such certificate, 760 penalty for, 765 committed in the presence of a jus- tice, 765 offender, when to be committed, 765 warrant of arrest for, 765 security for payment of penalty and costs, 766 warrant of commitment for, 766 fees, 766,767 Peofits, contingent, not recoverable as dama- ges 447 when recoverable, 448 Pkomise, to avoid statute of limitations, .... 147, 150 Promibsoet Notes, what are, 64, 65 negotiable and non-negotiable, 65 endorsement of, 65 eff'ect of taking non -negotiable, 65 of any kind, may be transferred, 65 transfer of, how made, 66 need not be dated, 66 necessity of " value received," in, ... . 66 Import a consideration, 66 days of grace on, 66 falling due on Sunday, 66 falling due on fast days, &c., 66 consideration of. when inquirable into, 67 property in, evidenced by possession, 67 owners of lost, can recover, 67 void in inception, remain void, 6T failure of consideration of, may be shown, - 67 and that under a general denial, 67 purchased at less than face, 67 founded on illegal contracts, 67 all makers, principals as to holders,. . 68 construction of " security," in, 68 contract of makers of, 68 Peomissohy Notes, contract of endorsers of, 68 joint or several, 68 *' I promise," several, . .,, 63 construction of "jointly or severally," in, 68 construction of " surety," in, 69 demand of payment of, when neces- sary, 69 notice of non-payment of, to bo given, 69 how and by whom notice may be given, 69 evidence in actions on, 70 interest on, how comp^uted, 70, 71 gnai'anty of, 70 actions against guarantors of, 70 rule of construction of guaranties of, 70 application of payments on, 71 examples of, not void for usury, 72 accommodation makers may set up usury in, 74 payment by, of third persojis, . . 74, 75, 429 payment by debtor's own, 74, 429 statute of limitatious as to, 150 not to be bought for suit, 219 endorser may demand, on tender, 225 when due, when time not mentioned, 229 payable on demand, when duo, 229 set-otf, in actions on, 234 set-off, of partner's, against firm,. .... 238 admissions of makers of, 349, 850 parol evidence, to vary terms of^ . ... 360 cannot be taken on execution, 490 evidence in actions on, the existence of the note, 430 its loss, 430 the signature of the parties, 431 the relation of the defendant, 431 interest of plaintilF in, 431, 43i the breach of contract, 433 demand and protest, 433, 434 notice of demand and of non-pay- ment, 434,435 a^ainstguarantors, 455 ot want of consideration, 435, 436 of usury, 436 Proof, necessary to sustain chattel mortgage, 51, 53 in actions for goods sold, 62 in actions for non-delivery of proper- ty, 63 [See Burd^/n of Proof, and Evi- dence.'l Protest, [See Kota/rim Public, and Promia-' sory N^otes.'] Provisions, warranty and sale o^ 56 PlJBLIO DOOUMBNTS, [See ^^idenee."] Public Officers, venue in actions against, S5 may sue and be sued in justices' courts, 151 pleading in actions by and against, . . 151 actions against Successors of, 152, 160 actions do not abate by death of, 160 actions, how commenced against,. . . . 161 when to order out posse cojnitaUte,.. 199 presumptions in favor of, 318 rule of evidence as to authority o^ . . . 838 Purchaser, acceptance by, necessary, 48 caveat envptor,app\iciib\e te, 55 when accidents at risk of, 62 when entitled to possession, 63 Putnam County, mechanics' liens in, 138 to 141, 900 QTSL — EEO INDEX. EEC ^liOO QUALITY, wan-iinty of, 55, 56 Quo "Walbanto, justice's title to office may be ques- tioned by, 10 EACING, ■when puTiislmble, 643 BtatuLc lorbitlding, 852 peace oflicers, to attend and prevent, . 852 justices, may order apprehension of pei-bons engaged in, 852 form of warrant for that purpose,. . 852 persons engaged in, to be recognized, 852, 853 form of recognizance, 858 fees 854 KAiL-lioAD Companies, are private corporations, 93 cattle tre^passing upon roads of, 113 may be sued byiong summons, 164 copies arti^fes association of, evidence, 4ff!»ions.] EOADB, injuries occasioned by nedect of, ... . 94 [See UUjhivai/s \indIioads.\ Eobbkrt, complaint fbr, 559 in the first degree, 611 in the second degree, 611 punisliment for, in both degrees, 611 EoOH ester, three justices in 4 EOO — SED INDEX. SEE— srE 901 BOOHESTEK, police justice in 521, 522 special sessions In, ti(J9 EocKLAND County, mechanics^ liens in, 188 EOTJTS, [See Riots.} EUBSIA, proof of conveyances made in, 897 SALES, by auctioneers, 49 of chattels, 60 by sample, 56 of graj^s, fruit, &c, 64 [See Vendor, and Vend^.} Salt MAKUFACToiaiiS, exemption of employees in, from jury duty, 290 Sample, sales by, 56 Saratoga Springs, powers and duties of police justices in, 522 special sessions in, 669 Saturday, when civil process not to be served on, 193 SOBTENECTADY, four justices in, 4 powers and duties of police justice in 523to526 Scire Facias, abolished, 462 Sealed Instruments, actions on, when to be commenced, . . 143 [See Bond^, and Undertakings^ Sbals, import a consideration, 42, 45 agents, when to be appointed under, . 95 partners cannot bind each other by, . . 102 public, and of notaries public, judi- ci lly noticed, 31 2 what are, 312 only presumptive evidence of consid- eration, 363 what, judicially noticed, 389 of corporations, may be on paper, .... 404 Searching Pkisonees, when and by whom, 543 Search Warrants, when to be issued, 539, 540 when to authorize search in night time, 540 must be executed by an officer, 540 contents of; 540 complaint to obtain, 540, 541 form of; 541 execution of. 541, 542 disposition of goods on return o^ . , 542, 543 Sboond Opfbnces, punishmer t for, 611, 612, 633 Sboretart of State, certificate of, as to authority of com- missionersof deeds in other states,399,400 copies deeds in office of, may be re- corded, 402 copies i)apers in office of, evidence, 408. 409 to certify laws, 421 Security, tainted with usury, void, 72 to procure warrant, 1 68 to stay execution, on appeal, 506 for costs^ in actions against militia officers, ... 4T1 statute as to 471, 472 [See Boihds^ and Uhderia kings.'] Seduction, justices cannot try actions for, 28 punishment of, under promise of mar- riage, 634 Service, of summons, 180, 131 of warrant 182, 189 of attachment 193 to 19T [See Mcecutiavs^ and Subpomas.'] Set-off, by purchaser against principal, 97 general remarks concerning, , . . . 233 to 240 what demands are good as, 233 statute concerning, 283 to 285 against judgments on attachments,. .. 285 notice of, to be given, 286 judgment on, 286 in actions by personal representa- tives 237, 238 actions on demands which should have been used as, 237 demands which need not be used as, 237 in actions for tort, , 233 in actions for breach of warranty, 238 against personal representatives, 238 against firm, of partner's note, 238 general rules concerning, 238, 239 recoupment analogous to.. T 240 [See Recoupment.} Seventh Day Baptists, when process not to be served on,. ... 193 when exempt from jury duty, 291 Severing Producf^ punishment for, 634, 648 SUERIFFS, liable for money collected on execu- tion, 61 actions against, when to be commen- ced, 144 when admissions of deputy bind, .... 351 liability of, for refusing to discharge prisoner, 501 [See Constable.'] Shooting, complaint for, 655 Shop-Books, admissibility of, in evidence, 41*^, 419 proof, when entries were made by clerk, 418 proof, when entries were made by parties 418, 419 what they are nut evide«ce of, 418, 419 party not allowed to swear to, 419 all, must be produced, 419 Short Attachment. [See Attachjiient] Sing Sing Guards, exempted from jury duty, 291 Slander, justices cannot try actions for, 28 actions for, abate by death, 91 actions for, when to be commenced, 144 Sluices, penalty for obstructing or diverting, 808 Smithfield, jurors in, 239 Sodomy, whatis 612 punishment for, 612 South America, proof of conveyances made in, 397 Special Peocbedings. how continued before different jus- tice, 694, 695 Special Sessions, to be held by a single magistrate, 642, 646, 653 minutes of proceedings in, to be kept, 653 jurisdiction of., petit larceny charged as first oflfence, 642 assault and battery, 643 poisoning, and cruelly beating, ani- mals, 643 racing animals, 6-13 severing produce, and wilful trespass, 643 902 SPE ST. L INDEX. STO SUM Special Sessions, jurisdicUon of, selling poisons without labels, . .. 648,644 cutting down monuments, &c., 644 destroying mile stones, &c., 644 moving property, to defraud creditors, 645 sellingliquor to Indians, 645 when to take place, 646, 648 disposition of prisoner awaiting, 647 order to bring up prisoner for, 647 charge, to be stated to prisoner, 648 pleas by prisoner on, 648, 651 prisoner's plea, to be entered in nain utes, ,... 648 by the justice, when, 651 by a jury, wlien, 651 formal management o£ before a ju- ry, 651 to 657 rules of evidence applicable to, ... 655, 656 general rules applicable to, 657 proceedings mhsequent to tlie ij'ial, what piinishment may be awarded, . . 657 priso ; acquitted, to be discharged, 658 certil rt, non-residents to give security for, .... 168 when proper process, 170 statute authorizing, 170 when to issue without security, 171 SUM SUE INDEX. SUE — ^TEN 903 Summons, affidavit for, "by non-resident, 171 affidavit for, agaiust non-resident, 171 when to be made returnable, 171 computation of time on, . ... 171, 172, ISO service of, 180, 181 adjom*nment on, 251 speciaZ, for refusing to work on highways, .. 801 for ajury to re-assess highway dama- ges, 805 \^eeDraining mSwamps,and Excise Ta^erns^ Lcutidlord cmd Tenant^ andPr(?ce5S.J , ' . . .,. ^ Sunday, t:?^ «- ^ ^ . -^ • what days esteemed as, 66 contracts made on, 78 last day for performance of contract, on, 78 last day prescribed by statute, on, 78 work performed on, 78 awards published on, 78 acts on, forbidden by statute, 78, 79 actions for horses hired on, 79 when to be computed, 164, 171, 181 civil process, not to be made returna- ble on, 165 nor to be issued on, 165 nor to be executed on, 198 arrests on, after escape, 198 courts, not to be open on, 3(19 verdict, may be received on, 809, 657 jury may be discharged on, 302 judgment, not to be entered on, 809 process not necessary, for violation o^ 532 courts to be adjourned over, 657 [See Observance of Sundm/.'j SUPEBINTENDENTS OF COMMON SCHOOLS, executions against, 479 StTEBINTENDBNTS OP THE PoOE, executions against, 479 may bind out apprentices, 711 where to deposit copy indentures, . . 712 [See Ma^arda.'] SUPEKTISOES, boards of, formerly nominated justi- ces, 8 to give notice of drawing of justices, 6, 8 to make certificates of such drawing.. 6 justices may resign to, 11 may sne and be sued injustices' courts 151 actions against counties, to be brought against 152 actions against successors of, 152, 160 actions do not abate by death of^ 160 actions, how commenced against,.... 161 executions against, 479 to sue for dog penalties, 768 and justices, to appoint firemen, 850 and fill vacancips, 850 vacancy in office of, how filled, 859 [See Eo'Hse cmd Taverns^} Supplemental Complaint, to continue action, 159 SUPEEME COUET, may remove justices, 11 to assign cause for so doing, 11 proceedings in, on argument of cerU- orari 679 justices cannot take acknowledgment of bail in, 696 ^/ [See Courts.'] , i , Sureties, ^'^ ^ . '-i - ^/,-, .Jc'f. /^ ■ , on bonds for attached property, 191 such, to be approved, 192, 193 liability of, on bonds on plea of title,. 242 admissions of principal, receivable agaiui-t, 353 liability of constable^s, 508 SuitETT OF the Peace, how obtained, 680_ complaint to be in writing, 681' who may demand, 681 complaint, to obtain, 681 wai rant, when to issue, 682 prisoner, to be interrogated, 682 prisoner, when t(t be recognized, 688 form of reeognizarice by 683 prisoner, when to be coumiitted, 683 form of such commitment, 684 prisoner, when to be discharged, 684 warrant to discharge, 684 when court may require, 685 Surgeons, communications to, when privileged, 858 BUEPLUSAGE, what comprehended by the term, . , . 830 evidence as to, inadmissible, ; . 830 examples of, 831 SUEROOATES, to issue letters, 91 SUEVIVOKSHIP, presumptions of, ,j, ^ 817 Sworn Copies, »,^v what are, '.\ 890 Stbaouse, three justices in, 4 mechanscs' liens in, 123 powers and duties of police justices ^in, - 526 TA VEENS, [See Excise and Ta'oems.'] Taxes, certificates of unpaid, evidence 411 leases for unpaid, in villages, evidence, 411 Telegraph Companies, copies certificates of incorporation o:^ evidence, 403 Tenants. implied contracts of^ 88 rights of, as to fixtures 119, 120 what may be removed by them,.. 120,121 manure does not belong to them, 122 when rails rlo, ■ 132 when, may mortgage grass, 122 possession by, i^eemed that of land- lords, 142 cannot deny lanrllords' title, 321 l^ee Landlord and Tenant] Tender, effect of, after default on mortgage, . , 55 by pawnor, 60 must be averred in answer, 222 in what, may be made, 222, 2 .3 of portable and cumbrous articles, . . . 223 equivalent to performance, 223 a question for the jury, 224 debtor discharged by 224 of specific actions, to be uncondition- al,. 224 who may make, 224 what is a good tender, 225 of money, 225 must be unqualified, 225 what is a legal tender, 226 of bank notes 226 creditor refusing, to bear loss, 227 where to be made, 227 at what time to be made, 228 to whom to be made, 229 consequences of, and refusal 229 to be kept good, 230 costs on I ecovery beyond, 230 plaintiff entitle to 230 afteraction brought, 280 statute applicable to such, 280, 281 by payment of money into court, .... 233 evidence of, 487 904 TEE — TOW INDEX. TOW TEXT Page. TSBKirOTtlAL JtrBISDIOTIOW, of justices, 84 of United States' courts, 787 Thkeatening Letters. puaifihmentfor pending, ,^. 685 computation of,. ...164,171,172,^4,180 Title, to things mortpaged, in mortgage,. . . 65 ■warranted, by vendor of chattels, .... 55 tenant cannot deny lessor's, 821 to property levied on, how determin- ed 492,498 to real property, justices have no jurisdiction of, 28, 243 plea of, 243 to 247 answer containing, to be written, .... 243 form of answer setting out, 248 undertaking on, 243, 244 costs in snch case, 244, 245 when not disp . ted by defendant, 945 new action, when title is set up, . . . 245, 246 examples, where title comes in ques- tion 247 plea of, not a bar to action for ob- structing highway, 807 TOETS, joint liability for, 108 set-ofF, in actions for, 238 Town Auditors, board of, how composed, 855 when to meet, '. 855 to make two certificates, 855 to whom to deliver certificates, 855 not to audit accounts, unless verified, . 855 chairman of, may administer oaths, . . 855 to make abstract of accounts, 855 to whom to deliver abstracts, 855 certificat3 by, 856 affidavit, to attach to account, 856 form of abstract by, 856 fees 857 Town Clerks, notice of drawing of justices, to be given to, 6 to record certificates of such drawing, 6 to keep mechanics' lien docket, 140 their ifees, for entries therein, 140 form of certificate by, to documenta- ry evidence, 394 certified copies papers in office of, evi- dence, 411 Justices, when to deliver papers to, . . . 467 when to demand such papers, 467, 468 fees of, under highway act, 814 Town Meetings, justices to be elected at, 4 clerks of, to certify such elections, ... 6 and to notify justices elected, presiding officers of, to determine such election, 8 justices, to preside at, 857 Eowers, while so doing, 857 ses, 857 Town Officers, justices may administer oaths to, ... . 708 [See Jbuwi OJiees.} Town Offices, vacancies In, how filled, 857, 858 Towns, number of justices in, limited, 3 election of justices in new, 5 justices must reside in, 21, 34 actions for penalties given to, whereto be tried, 25 actions by and against officers of, 86 actions by and against. 94 officers of, may sue and be sued in justices', com-ts 151 actions against, how brought, 152 actions against, how commenced, .... 161 Page. Towns, venire. In actions between, 286 executions against officers o^ 479 firemen in, how appointed, 850 officers of, when allowed per (Mem pZ^ compensation, 855 Teanbceipts, of judgments of courts in New-York, may be filed, .... 81 of judgments under mechanics' lien 12T , [See Evid&nce, and JudgmenU.'] Tkbason, what constitutes, 693 [See Crimes.'l Tr-sblb Costs, [See Costs-I Tebeb, coCtracts for sale o^ 60 actions for cutting down, 115 go to the heir, 122 complaint for girdling, 561 Teespabs, wilful, by agents, 97 upon real property, 106, lUT defence In actions for, by cattle, 106 who may maintain, 106 to 108 obstruction of lights not a, 107 defence in actions for lOS damages for, on lands, 108 bycattle, 114 actions for, when to be commenced,. 144 tender in actions for, 280 evidence in actions for, on the case, 437 to 440 evidence in actions for, generally, . 440, 441 levying on property of stranger, , 492 complaint for malicious, 561 what is a wilful, 643 Tbebpassebs, minors acting as officers, 90 agents, 97 who are, upon real property, 106,108 ab iniUo, 108 corporations liable as, 108 justices issuing attachments without proof, 17T justices, not having jurisdiction, 260 constables, arresting wrong person, . . 572 [See Trespass.} Telal, what is, 283 by jury, when to be demanded, . . 233, 285 general rules as to, by justice,. . . 2S3 to 2S5 by jury, 285 [See JudgrnenU, Special SessKms^ and Ve7iir6.'] TEIBE9, challenge to favor, decided by, — 294, 296 who may be, 296 oath to,. 296 Teovee, evidence In, 441 to 443 Teoy, justices' courts in, '. 13, 21 jurisdiction of such courts, 80 powers and duties of police justice in, 526,627 Trttstefb set-off, when plaintiff is, 284 of express trmts, actions by, 157 of gospel wrid sclwol loU^ actions by and against, 151 executions against, 479 qf school-diatnctSy actions by and against, 151 executions against, .... 470 Teubtb, actions by trustees of express, 167 THE TEN INDEX. TEN WAE 905 Page. TirENPiKE Companies, are private corporations, 93 copy articles absociation of, evidence, . 403 transfer books of, evidence, 409 ULSTER COUNTY, meclianics' liens in, 181 to 184 Unclaimed Baggage, duty of proprietors of conveyances, as to, 846, 847 duty of justices, as to, 847, 848 fees, 348 Undertaking, on plea of title, 243 form of, in sucb case, 244 justice, to approve such, 244 to stiiy execution on appeal, 506 to 508 United States, jurisdiction of justices in, , 2 qffemler^ afjain-'tt laios of, justices may arrest, Imprison, or bail, 7R6 proceedinL's upon arrest of, 786 Tvhenjustices may bail, 787 proce-^s and recognizances, where to be sent, 787 [See Circwit Courts, axiii D-iMrict CourtsJ] Upper Canada, proof of conveyances made In, S9T Usage, evidence of, 363, 864 [See S/Videmce^ Use and Occupation, action for, of lands, 64 USTTRY, promissory notes void for, 67 statute concerning, 72 criterion to detect, 73 recovery on executed contracts void for, 74 subsequent agreements cannot create, 74 ■when maker of note may set up, 74 both parties must be cognizant of,.. 74 plaintiff, may be called to prove, .... 869 witnesses to prove, in notes, 436 Utica, four justices in, 4 special sessions in, 670 VACANCY, election of justices to fill, 9 how occasioned, in office of justice, 10, 11 in town offices generally, how filled, 857, 858 in office of assessor, how filled, 858 in office of collector, how tilled, 858 in office of commissioner of highways, how filled, 859 in office of overseer of highways, how filled, 859 In office of inspector of elections, how filled 859 in office of overseer of the poor, how filled, 859 in office of supervisor, how filled, 859, 860 Vagrants, false assertions as to, . . . .(/. 82 Variance, to be disregarded, 310 judgment for, when not to be given, 810 effect oi; between proof and pleadings, 335 Vender, definition of word, 40 must return goods, to recover price, . . 56 Vendor, definition of word, 40 of chattels, warrants title, 55 right of, to stop in trcmsitu, 63 Page. Vendor, admissions by, of personal property, 854 Venire, civil, when to be issued, 285, 293 in actions between towns 286 form of, 286 how executed, 287, 288 costs on, 288 when jury disagree, 808 costs on, abide event, 469 criminal, contents of, 651,652 form of, 652 service of, 652, 658 second, may be issued, 656, 657 apecial, disturbance of religious meetings,.. . 762 draining swamps, 763, 769 habitual drunkards, 793 re-assessment of highway damages, . . 804 removal of encroachments from high- ways, 809 removal cf a tenant, , 827, 828 [See Jurors, and Jurt/.'] Venue, [See Flace of THaX.] Verdict, when conclusive, 221 for amount tendered, , 231 justices, to enter in docket, 307 may be received on Sunday, 309 when final, .' 309 how delivered, 309 examples of various, 809, 810 judgment to be rendered after, 457 of fact, of habitual drunkenness, is pre- sumptive evidence, 793 [See Bighwaya wnd EoadsJ] Vernon, jurors in town of, 289 Villages, certificates of incorporation of, 411 lea'ses for unpaid taxes, in, 4]l certificates by clerks of, 413 Vindictive Damages, [See Damages.'] Violating Graves, punishment for, 685, 686 Voluntary Payment, actions not maintainable for, 62 WAETiANT OF COMMITMENT, [See Convmitmenta, and Warro/nts.} "Warrants, eivil, to issue to county of justice, 85 to detain canal boats, when to issue,.. 113 actions commenced by arrest under, . . 161 defendant may be sued by fictitious name, 168 to be filled up, 163 need not be sealed, 1G3 to be signed by justice, 168 to be in name of people, 363 to be in English, , 163 when to be issued, 165 affidavit for 166 form of affidavit for, in tort, 167 form of affidavit for, on conti.iet, 167 security, when to be given for, 168 form of security to procure, 168 to whom directed, 169 contents of, 169 form of, 164,169,171 actions, when continued by, 169 void, when summons is the regular process, 170 when to be made returnable, 171 service of, 182 to 189 90G WAE — WAE INDEX. WAE — WIT "Warrakts, ofllcer need not show, 182 but should state substance, 182 special deputy must .show, 182 oxemptiona from arrest under,. . 183 to 185 is mesne process, , 186 constable to make return on, 188 return on, 189 proceedings on return of, 205 to 207 adjournment on, by justice,. ........ 243 adjournment on, by plaintiff, 250 adjournment on, by defendant, ... 250, 251 to commit witness refusing to testi- fy 801,802 command of justice, when good as, . . 533 of arrest for contempt, 535 of commitmont for contempt, 537 when to be issued, 565 remarks as to contents of, 565, 566 how to be made returnable, 566 to 569 to whom to be directed, 569 forms of, 570 service of, 571 to 575 backing 575, 576 to whom to be delivered after arrest, 578 of commitment for farther examina- tion, 5S1 of commitment of witness, 588 to liberate prisoner, 641 of commitment of prisoner, to await trial, ._ 64T of commitment from special sessions, 660 to arrest apprentice, 718, 719 to apprehend reputed father of a bas- tard, 726 to commit a putative father, 735 to commit mother refusing to disclose name of father, 737 to commit mother who has property in her own right 739 to discharge putative father, 742 to seize property of absconding father, 748 to commit a beggar or a v^rant, ...... 748 to arrest a person in disguise, 749 to commit a child to the county poor- house, 750 to arrest a disorderly person, 752 to commit a disorderly person,. . . 754, 755 of an-est, for disturbance of religious meetings, '. 757 of commitment, for the same, 762 to seize goods exposed for sale on Sun- day, 764 of arrest, for profanity, 765 of commitment, for the same, 766 to commit a fugitive from justice, .... 784 to commit a hawker or pedler refu- sing to pay penalty, &o., 796 to collect penalty from a hawker or pedler, 797 to collect a highway fine, , 803 to collect costs of proceedings upon an encroachment, 812 to put landlord in possession, 824, 825, 826 to confine a lunatic, 887 to seize goods of an absconding parent, or husband 842 to arrest jn^T^ons engaged in racing, 853 [See CofJimilnuvts!, and Search War- ratiU.] Wareantt, implied, of title to chattels, 65 of quality 55, 56 not implied, as to latent defects, 56 actions for breacli of, 66 that residue is 1 ike sample, — 66 of wholesomencss of provisions, 66 i when to bo made, 67 I Wakrakty, language constituting, 67 " not afraid to warrant," 67 by agents, 96 complaints for breach of, 212 no set-off In actions for breach of, 288 damages for breach of, 449, 450 Water Couesbs, penalty for obstructing, 808 Water VLiBT, special sessions in, 670, 671 WESTcm-STBK County, mechanics' liens in, 138 to 141 Wheat, may be sold by parol, 122 Wife, [See BusbmuZ am.d Wife^ and Ma/r- ried Women.'] Wilful Trespass, what is a, 1 643 WlLLIA-MSBUEGII, four justices in, 4 mechanics' lien in, 123 powers and duties of police justice in, 527, 528 special sessions in, 671, 673 WlLL8_, originals, records, and exemplifications o^ evidence, 402,412 WmTESSJiS, , /, ^ ^^ ciidl, .■-■'- ■^l"-' '■■"''»/ ■- ^ " subscribing, to endorsement of note, 66 in actions for penalties, 119 / ^ ■ exempted from arrest, 184 justices cannot he, before themselves, ©!&• X, O ^^ justices, for defendants, 206 * justices, for, plaintiffs, 207 plaintiffs, in demands bought for suit, 220 refusing to testify or be sworn, 251 examination of, by commission, 261 to 271 when to produce books and papers.. . 273 service of subpcena on, 'TS, 274 fees of, 273 attachments against, 274 to 276 duty of, as to obeying subpoena,. . . 276, 277 damages recoverable from defaulting, 277, 278 punishment of, for non-attendance, &&, 278 to 282 oath to, on trials of challenges, 295 evidence of death or absence o^ 298 incompetency of, how determined, . . . 29S in jail, how brought out, 298 swearing, 299, 300 punishment of, refusing to testily, 300 to 802 oath to materiality of, 301 examination of plaintiff's, when, 802 examination of defendant's, when,.. . 804 testimony of deceased, 345 to 348 attorneys, cannot be, against client,.. 357 when infants competent as, 865 examination of parties as, 372 to 877 examination of assignor as, 876, 377 justices in adjoining states, to prove docket, 892 to prove usury in notes, 436 fees of 478 not exempt fi-om arrest for crimes, . . . 47S oath to, on complaint, 648 testimony of, to be in writing, .... 685, 582 of prisoner, to be sworn and examin- ed, 585 should be kept separate, 586 may be bound over, 587, 588 infants and married women may bo boxmd over as, 688 and when in default, may be commit- ted, , 688 form of recognizance by, 590 not entitled to fees, , 664 WIT — WIT INDEX. WIT — ^TEA y-'' / Page. WrTNESSKS, criminal, oath to, 655 special^ in cases of bastardy, 730 fees of, in such cases, 746 fees of, in proceedings against beggars and vagrants, 751 fees of, in proceedings against disorder- ly persons 756 in actions to recover property pawn- ed, *fcc., for liquor", 783 on trials of haliitual drunkards, ... 792 oath to, in such cases, 793 fees of, in such cases, . . . , 795 oath to, on re-assessment of highway 810 oath to, when encroachment is denied, fees o^ in proceedings against luna- tics, B3» justices, may compel, to attend before arbitrators, 849 may be compelled to give depositions to be used in other states, 849 fees of, for such depositions, 850 persons excluded 05, by statute, <&c., idiots, lunatics, and madmen, 864, 865 infants, when, 365 persons intoxicated, 365 persons convicted of perjury and fel- ony, 365 husbands and wives, ... - 366, 357 persons insensible to the obligations of an oath, ..- 867,368 persons rendered competent as, hy spe- cial statute, corporators, 368 Indians, for themselves, 368, 369 owners of lost baggage, 369 plaintiff, where defence is nsury, 369 plaintiff, where demand was bought for suit, 369, 370 parties to actions, 870, 371 parties in interest, 871, 372 viode of examiining, privilege of witnesses, 877, 378 907 Page. W1THK68BS, divert c cannot be asked leading questions, .... 379 exceptions to this rule, 879 refl'eshing memory of, •. 879, 380 cannot be asked opinion, 381 exceptions to this rule, 881 cannot be impeached by party calling, 882 nor discredited by him, by evidence of different statements, 883 cross-examdnaUon, great latitude allowed on, 882 when not allowed, 882 questions not to be asked on, 883 foundation to be laid on, for impeach- ing, 883 leading questions permitted, 883 as to contents of letters, 384 when memory of, has been refreshed, 884 •vrnpeach/inent, by evidence of general character,. . 884, 885 % proper questions to be asked, 385 by evidence of different statementa, 885, 386 attention of witness must have been called to former statement, 883, 386 7'e-direct eccmnination, obiectof, . by evidence of general character, 887 proper questions to be asked, ■ . . . 887 "Wkit of Inquiey, under mechanics' lien law,... 124,133,140 Weitten Lnsteuments, [See Instruments.'] Weongs, liablity of husband for, committed by wife, 87 liability of infant for 90 actions ibr, by personal representatives, 91 set-off, in actions for^j 238 damages, in actions for, 477 TEAR, computation ofj 533