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Cornell University Library 
 
 3 1924 031 425 394 
 olin,anx 
 
THE 
 
 CODE OF PEOCEDURE 
 
 STATE OF KEW TOEK, 
 
 FBOU 1848 TO 1871. 
 
 OOHPKISItfa THE ACT AS ORIGnTALLT ENACTED, AND THI 
 
 VAEIOITS AMENDMENTS MADE THBBETO, TO 
 
 THE CLOSE OP THE SBSSIOIT OF 1870, - 
 
 WITH A FUIiL INDEX. 
 
 ALBAIO": 
 
 Banks & Bbothees, 475 Broadwat. 
 
 New Tokk, 144 Nassau St. 
 
 i87n 
 
BnterM aiccordlng to Act of Congress, In tbe year 1870, 
 
 By BANES & BBOTESBS, 
 
 In the Clerk's Office of the District Conrt of the United States for the Northern 
 District of New Tork. 
 
CONTENTS. 
 
 explauatort note, .... - t 
 
 The Code of Procbdube, ..... 3 
 
 Appehde, .-....- 817 
 
 Index, --...-.- 333 
 
EXPLANATORY NOTE. 
 
 The intention of this work is, to present the Code of 
 Procedure of the State of New York as originally enacted 
 and as it now is, and to exhibit the various changes which 
 it has undergone down to the close of the session of 1870. 
 
 The plan pursued has been as follows : Where the sec- 
 tion has been amended, to give first the section as origin- 
 ally enacted, with a statement of the year in which it 
 was passed. Then following the section a note of the 
 year or years in which it has been amended, and following 
 this the section as it has stood after each amendment. 
 
 The sections which have undergone no amendment are 
 also .given with a note of the time of their passage. 
 
 The amended sections are given either in full or by ref- 
 erence to each other. Where it does not appear to the 
 contrary they must be understood to be given in full. 
 
 The prese7it sections of the code are denoted by the 
 larger numerals ; the smaller numerals denote the section 
 as it stood originally and down to the time of the final 
 amendment. 
 
 So far as possible the changes from time to time are 
 indicated by italics. 
 
 The Code was originally passed by the legislature of 
 1 848, and re-enacted in the year 1849, at which time many 
 sections were added and some omitted ; the omitted sec- 
 
^1 EXPLANATOEr NOTE. 
 
 tions (now forming no part of the Code) will be found 
 herein in their proper order. 
 
 The sections have been carefully compared with the 
 session laws of the respective years. 
 
 It is believed that a work of this kind has been long 
 needed by the members of the bar, judges and legislators, 
 and that it will be of no little assistance to them in their 
 labors. 
 
 An appendix has been added containing the various 
 acts relating to the organization of the judiciary, pursuant 
 to the amended judiciary article of the Constitution, also 
 the appointment by the Governor of Justices to hold 
 the General Term. 
 
 Albany, July 1st, 1870. 
 
THE 
 
 CODE OF PROCEDURE 
 
 OF THK 
 
 STATE OF NEW YORK, 
 
 TROU 
 
 1848 TO 1871. 
 
 AN ACJT 
 
 ZV gimplify arid abridge the praetiee, pleadings and proeeedingt of 
 the courts of this State. 
 
 Whbseab, it is expedient, that tlie present forms of actions and 
 pleadings in cases at common law should be abolished, that the 
 distinction between legal and equitable remedies shonld no 
 longer continue, and that an uniform course of proceeding, in all 
 cases should be established : Therefore, 
 
 TJie People of the State of JVew Tork, represented in Senate and 
 Assembly, do enact asfottowa : 
 
 QmrnsRAL DEFiNrriONS and DmsiONS. 
 
 Sicnoir 1. DlviBion of lemedleg. 
 
 5. Definition of an action. 
 
 8. Definition of a special proceedine. 
 
 4. Division of actions into civil ana criminal. 
 
 6. Definition of a criminal action. 
 
 6. Definition of a civil action. 
 
 7. Civil and criminal remedies not merged In each other. 
 
 8. Subjects embraced in this act. 
 
 § 1. (Being § 1 of 1848) Remedies in the courts of justice ai» 
 divided into, 
 1. Actions. 3. Spedal proceedings. 
 
4 CODE OP PEOCBDXTEK. [§§ 2-8. 
 
 I 3. (Being § 3 of 1848.) An action is a regular judicial proceed- 
 ing, in which a party prosecutes another party for the enforcement 
 or protection of a right, the redress or prevention of a wrong or 
 the punishment of a public offense. (Am'd in 1849.) 
 
 § a. <As am'd in!l849.) An action is ^n ordinary proceeding in 
 a court iof 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 punishment of a.public offense, 
 
 §3. (Being .§ 3 of 1848.) Every other remedy is a special 
 proceeding. 
 
 § 4. (Being § 4 of 1848.) Actions are of two kinds : 
 1. CivU. 3. Criminal. 
 
 g 5. (Being § 5 of 1848.) A criminal action is, prosecuted by the 
 state, as a party, against a person charged with a public offense, 
 for the punishment thereof. (Am'd in 1849.) 
 
 § 5. (As am'd in 1849.) A criminal action is prosecuted by the 
 people of the state, as a party, against a person charged with a 
 public offense, for the punishment thereof. 
 
 § 6, (Being § 6 of 1848.) Every other is a civil action. 
 
 § 7. (Being § 7 of 1848.) Where the violation of a right admits of 
 both a civil and criminal remedy, the right to prosecute the one is 
 not merge^ in the other. 
 
 I 8. (Being § 8 of 1848.) This act is divided into two parts : 
 The first relates to the courts of justice, and their jurisdiction ; 
 The second relates to civil actions commenced in the courts of 
 this state, after this act shall take effect, and is distributed into 
 twelve titles. The first four relate to actions in all the courts of 
 the state, a;ud the others, to actions in the supreme court, in the 
 county courts, in the superior court of the city of New York, in, 
 the court of common pleas for the ci ty, and. county < of New York, in 
 the mayors' courts of , thp cities of Albany, Hudson, Troy and 
 Rochester, and in the recorders' courts in the 'cities of Buffalo and 
 Utica; and to appeals to, the court of appeals, to the supreme 
 court, to the county courts and to the superior court of the city of 
 New York. (Am'd in 1849.). 
 § §. (As am'd in 1849.) This act is divided into two parts : 
 The first relates to the courts of justice, and their jurisdiction : 
 
§ 8.] CODE OP PBOCEDUEE. 5 
 
 The second delates to civil actions commenced in the conrts of 
 this State, after tlie first day of July, 1848, exe^t when otAerwisa 
 provided therein, and is distributed into fifteen titles. The first 
 fooT relate to actions in all the conrts of the state, and the others 
 to actions in the supreme court, in the coontj conrts, in the supe- 
 rior court of the city of New Yort, in the court of common pleas 
 for the city and county of New York, in the mayors' conrts of 
 <^iea,-aad. in the recorders' courts of Htiei, ^d to appeals to the 
 court of appeals, to the supreme court, to the county courts, and 
 to the superior court of the dty of New York. 
 
PART I. 
 
 OP THE COURTS OP JUSTICE AND THEIE JURIS- 
 DICTION, 
 
 TITLE I. Or ths Coubts at Qbukbai.. 
 
 II. Or THE COOBT OF AfPXAU). 
 
 nL Of the Supbbmb Coubt, Cibcxttf Coubts Am Coubtb of Oybb 
 
 AHS Tebminbb. 
 IV. Of thb County Codbtb. 
 
 Y. Of the Supebiob Coubt aitd Coubt of Coukon Fi.sa8 in thb 
 CiTT OF New Tobk, and thb Matobs' and BscoBDEBa* 
 Coubtb in otheb' Cities. 
 yi. Of the Coubtb of Justices of the Peace, 
 yn. Of Justices' and otbeb Infebiob Coubtb in Cities, 
 
 TITUS L 
 
 Cf tlie Courts in Oeneral. 
 
 Section 9. The sereral courts of tbis State. 
 10. Their jurisdiction generally. 
 
 § 9. (Being § 9 of 1848.) The following are the courts of jnsfloe 
 of this State : 
 
 1. The court for the trial ot Impeachments. 
 Z. The court of appeals 
 
 3. The supreme court, 
 
 4. The circuit courts. 
 
 6. The courts of oyer and terminer. 
 
 6. The county courts. 
 
 7. The courts of general sessions of the peace. 
 
 8. The court of special sessions. 
 
 9. The surrogates' courts. 
 
 10. The courts of justices of the peace. 
 
 11, The superior court of the city of New Tork. 
 
§§ 9, 10.] eOSB OF FBOGESimE. 1 
 
 12. The court of common pleas for the city and county of New 
 York. 
 
 13. The mayois' courts of the cities of Albany, Hudson, Troy 
 and Bochester. 
 
 14. The recorders' courts of the cities of Buf&lo and Utica. 
 
 15. The marine court of the dty of New York. 
 
 16. The assistant justices' courts in the <dty of New York. 
 
 17. The municipal court of the dty of Brooklyn. 
 
 18. The justices' courts of the cities of Albany, Troy and 
 audson. 
 
 19. The police courts. 
 (Am'd in 1849.) 
 
 § 9. (As am'd in 1849.) 
 
 The following are the courts of justice of this State : 
 
 1. The court for the trial of impeachments. 
 
 2. The court of appeals. 
 
 3. The supreme court 
 4 The drcuit courts. 
 
 5. The courts of oyer and terminer. 
 
 6. The county courts. 
 
 7. The courts of sessions. 
 
 8. The courts of special sessions. 
 
 9. The surrogates' courts. 
 
 10. The courts of justices of the peace. 
 
 11. The superior court of the city of New York. 
 
 13. The court of conmion pleas for the dty and couhty of New 
 York. 
 
 13. The mayors' courts of cities. 
 
 14. The recorders' courts of cities. 
 
 15. The marine court of the city of New York. 
 
 16. The justices' courts in the dty of New York. 
 
 17. The justices' courts of cities. 
 
 18. The police courts. 
 
 § lO. (Being § 10 of 1848.) These courts shall continue to exer- 
 cise the jurisdiction now vested in them respectively, except as 
 otherwise prescribed by this act 
 
8 GODB OF PEdCEDUEK. [§ l^' 
 
 ' ■'.!.■:] K 'io .T3CTLB,.n., „,., ^ ■ 
 
 Of the Court of Appeals. 
 
 Section 11. Its Jarlsi ^.tioiu . . , 
 
 12. May reveirrSc iifliim or modify judgment or order appealed from; 
 .;13. Terms of the' conrt, preference of causes. , i . 
 
 14. Number of jndges who may give judgment, 
 
 15. Sheriffs to provide rooms, etc^for court. ' 
 
 16t Court may DC adjourned to places other than those designated by 
 "'law. - •.-.-...'■.''. 
 
 § 11. (Being § 11 of 184S.) The court of appe?,ls shall have 
 exclusive jurisdiction to review, upon appeal, every actua^ detemi- 
 natiou hereaftej made, at a general term, by the supreme court, by 
 the superior court of the city of New York or by the cpurt of 
 common pleas for the city and county of New York, in the follow- 
 ing cases, and no oljier ; ' , 
 
 1. In a judgment in an aption. commenced therein, or brought 
 there from another court ; and upon the appeal from such judg- 
 ment, to review any intermediate order involving the merits and 
 necessarily affecting the judgment. 
 
 S. In a final order affecting a substantial right, made in a special 
 proceeding, or upon a summary application in an action, after 
 judgment: 
 
 But such appeal shall not be allowed in an action originally com- 
 menced in a court of a justice of the peace, or in the marine court 
 of the city of New Tork, or in an assistant justice's court of that 
 city, or in the municipal court of the city of Brooklyn, or in a 
 justice's court of the cities of Albany, Troy and Hudson respect- 
 ively. ^ 
 
 (Am'd in 1849, 1851, 1853, 1857^ 1863, 1865,. 1866, 1867, 1869, 1870.) 
 
 § 11. (As am'd in 1849.) ^ajne as § 11 of 1848 to sub. 3, and from 
 thence as follows : 
 
 3. In a final order affecting a substantial right, made in a special 
 proceeding, or upon, a summary application in an action after 
 judgment. 
 
 But such appeal shall not be allowed in an action originally com- 
 menced in a court of a justice of the peace, or in the marine court 
 of the city of New York, or in an assistant justice's court of that 
 city, or the municipal court of the city of Brooklyn, or in a justice's 
 court of amy of the ciUes of this State. 
 
§ 1.1 .j CODE OF PBOCKDUKE. 9 
 
 § 11. (As am'd in 1851.) Same as § 11 of 1848, to sub. 3, and from 
 thence as follows : • , 
 
 2. In an order affeeUng a mbsttmtial r^ht, made in audk acMon, 
 when such ordier in iffeet determines the action, and prevents a judg- 
 ment from which an appeal migM be taken. 
 
 3. In a final order, affecting a substantial rigbt, made in a special 
 proceeding, or upon a summary application in an action after 
 judgment. 
 
 4. In an order grantijug a new trial, but such an appeal shall not 
 be allowed in an action originally commenced in a court of a justice 
 of the peace, or in the marine court of the city of New York, or 
 in an assistant justice's court of that city, or in a justice's court of 
 any of the cities of this State. 
 
 § 11. (As am'd in 1852.) Same as § 11 as amended in 1851 to sub. 
 4, and from thence as follows : 
 
 But such appeal shall not be allowed in an action originally com- 
 menced in a court of a justice of the peace, or in the marine court 
 of the city of New York, or in an assistant justice's court of that 
 city, or in a justice's court of any of the cities of this .State. 
 
 § 11. (As am'd in 1857.) The court of appeals shall have exclu- 
 sive jurisdiction to review, upon appeal, every actual determination 
 hereafter made at a general term by the supreme court, or by the 
 superior court of the city of New York, or the court of common 
 pleas for the city and county of New York, or tlie superior court cf 
 tlie city of Buffalo, in the following cases and no other: 
 
 1. In a judgment in an action commenced therein or brought 
 there from another court; and upon the appeal from such judg- 
 ment, to review any intermedii^te order involving, the merits, and 
 necessarily affecting the judgment. 
 
 3. In an order affecting a substantial right, made in such action, 
 when such order in effect determines the action and prevents a judg- 
 ment from which an appeal might be taken, and when such order 
 grants a new trial; but no appeal to the court of appeals from an 
 order granting a new trial, shall be effectual for any purpose, unless 
 th,e notice of appeal contain an assent on the part of the appellant t!iai 
 if the order be affirmed, judgment absolute shaU be rendered against the 
 apptHaTvt. Upon every appeal from an order granting a new trial, if 
 the court of appeal shall determine thai no error was committed in 
 
10 CODE OF PBOCEDtrBX. [§ !!• 
 
 gramiing the new trial, they sh/M render jv,dgment absolute upon th^ 
 right of the appeUamt; amd after the proceedings, are remitted to the 
 court from which the appeal was taken, am, aisessmervt of damages, or 
 other proceedimg to render the judgment eff'eetual, nwy he there had, in 
 cases where siich subsequent proceedings are requisite. 
 
 3. In a final order affecting a substantial right, made in a special 
 proceediug, or upon a summary application, in an action after judg- 
 ment. But such appeal shall not be allowed in an action originally 
 commenced in a court of a justice of the peace, or in the marine 
 court of the city of New York, or in an assistant justice's court of 
 that city, or in a justice's court of any of the cities of this State, 
 unless any mch general term shaM, by order duly entered, aUow such 
 a/ppeoH before the end of the next term after which such judgment was 
 entered. The foregoing prohibition shall not extend to actions discon- 
 tinued before a justice of the peace, and prosecuted in arwfhsr court, 
 pursuant to sections sixty amd aiaty-eight of this Code. 
 
 1 11. (As am'd in 1863.) Same as § 11, as am'd in 1857, excepting 
 sub. 3, which was amended to read as follows : 
 
 3. In an order affecting a substantial right, made in such action, 
 when such order in effect determines the action and prevents a judg- 
 ment from which an appeal might be taken, and when such order 
 grants or reuses a new trial ; but no appeal to the court of appeals 
 from an order granting a new trial shaUbe effectual for any pur- 
 pose, unless the notice of appeal contain an assent on the part of 
 the appellant, that if the order be affirmed, judgment absolute shall 
 be rendered against the appellant. Upon every appeal from an 
 order granting a new trial, if the court of appeal shall determine 
 that no error was committed in granting the new trial, they shall 
 render judgment aljsolute upon the right of the appellant ; and after 
 the proceedings are remitted to the court from which the appeal was 
 taken, an assessment of damages, or other proceeding to render the 
 judgment effectual, may be there had in cases where such subsequent 
 proceedings arerequi^te.' 
 
 § 11. (As am'd m 1865.) Same as g 11, as amended in 1863, except- 
 ing thai sub. 4 was added, reading as follows: 
 
 4. Wheneeef tlie decision of any motion heret(^ore made, w <jf amy 
 riuMon h^eafler to be made, in the supreme court of this state at a 
 special term thereof, imwlmes the constitutionality of am/y law of this 
 
I 11.] CODB OP FBOCBDUSE. 11 
 
 state, or Tuis been or sJuiU be placed, in flie opinion or reasons for mieh 
 iedsian of ijie justice maJdiig such decision, upon the uneonstiiucion- 
 aUtjf of such law, then an appeal shaU He and may be made from, siich 
 decaxUm, or from Oie order entered or to be entered upon such decision, to 
 the general term of said court, and an appeal shaU also lie and may be 
 made from the decmon of such generod term, and from any order 
 entered or to be entered thereon, to the court cf appeals : provided, how- 
 enter, that the time for appealing from swA decision, or from such order, 
 shaU Twt be eastended hereby. 
 
 And such appeal all the general term and at the court of appecdt shad 
 be heard as a non-enumerated motion. 
 
 § 11. (As am'd in 1866.) Same as § 11 as amended in 1865, except 
 that sub. 3 was am'd so as to read as follows : 
 
 3. In a final order affecting a substantial right, made in a special 
 proceeding, or upon a summary application in an action after 
 judgment, and upon such appeal to remew any intermediate order 
 inwlmng the merits, and necessarily ajfecUng the order appealed 
 from. But such appeal shall not be allowed in an action originally 
 commenced in a court of a justice of .the peace, or in a marine 
 covirt of the city of New York, or in an assistant justice's court of 
 that city, or in a justice's court in any of the cities of this State, 
 unless any such general term shall, by order duly entered, allow 
 such appeal before the end of the next term after which such judg- 
 ment was entered. The foregoing prohibition shall not extend to 
 actions discontinued before a justice of the peace and prosecuted 
 in another court, pursuant to sections sixty and sixty-eight of this 
 code. 
 
 § 11. (As am'd in 1867.) Same as § 11 as amended in 1866, except 
 that sub. 3 was amended so as to read as follows : 
 
 " 3. In an order affecting a substantial right, made in such action, 
 when such order in effect determines the action and prevents a 
 judgment from which an appeal might be taken, or discontinues 
 the action, and when such order grants or refuses a new trial ; but 
 no appeal to the court of appeals from an order granting a new 
 trial, on a case made or biU of exceptions, shall be effectual for any 
 purpose, unless the notice of appeal contain an assent on the part 
 of the appellant that, if the order be affirmed, judgment absolute 
 shall be rendered against the appellant. Upon every appeal from 
 
12 eODS ©5' P^OGEDTOJl, [§ Jl* 
 
 an order granting, ^ mw trigj o», a, eaee mfldffOr on eceeptiom t^s^t, 
 if the court of appeals shall di^terpiinetliat ijp enror was cpniinitted 
 in granting the new trial, they shall render jndgi^^Q'' absolute upon 
 the right of the appellant; and after the proceedings are remitted 
 to the court from whiph the appeal ws^s, taken, an assessment of 
 damages, or other proceedings' to render judgment effectual, may be 
 then and there.hadj in cases where such subsequent proceedings are 
 requisite." 
 And a new sub. 4 was added, reading as follows : , 
 " A' An aj^eal from any lyrder to the . eomt cf aipp&da,- affeclmg a 
 tubstariMal right, ansing upon cmyinterleeutory proeeeding,or upon 
 a/ny question cf practice in the action, may be heard as a motion, and 
 noUced for hea/ring for am^regvla/F-mMion day of the court." < ■ 
 
 1 11. (As am'd in 1869;) Same as § 11 of 1848, to sub. 3, and from 
 thence- as follows ; . 
 
 2. In an order affecting a substantial right, made in such action, 
 when such order in effect determines the action and prevents a 
 -judgment from which an appeal might be taken, or discontinues 
 thfe action, and when such order grants or refuses a new trial, or 
 when such order strikes out an emswer or amy pa/rtof xm, answer, 
 or amy pleadmg in an action ; but no appeal, to the court of appeals, 
 from an order granting a new trial, on a case made or bUl of 
 exceptions, shall be effectual for any purpose, unless the notice of 
 appeal contain an assent on the part of the appellant that, if the 
 order be affirmed, judgment absolute shall be rendered against the 
 appellant. Upon every appeal from an order granting a new trial, 
 on a case made or exceptions taken, if the court of appeals shall 
 determine that no error was committed in granting the new trial, 
 they shall render judgment absolute upon the right bf the appellant ; 
 and after the ja-oeeedings^ are remitted to the court from which 
 the appeal was takenj an assessinent of dainages, or other proceed- 
 ings to render judgment effectual, may be then and there had, in 
 cases where such subsequent proceedings are requisite. 
 
 3. In a final order affecting a substantial right made in a special 
 proceeding, or upon a summary application in an action after judg- 
 ment, and upon such appeal to review any intermediate order 
 involving the merits and necessarily affecting the order appealed 
 from But such appeal shall not be allowed in an action originally 
 commenced in a court of a justice of the peace, or in a marine 
 
§ 11.] CODE OF PPOCEDUBB. 18 
 
 court of' the city of New York, or in an assistant justice's court of 
 that city, or in a justice's court in any of the, cities of this State, 
 unless any sudi general term shall^ by order duly entered, allow 
 8ttch appeal brfore the end of the next tenn after which such judg- 
 ment was entered, The foregoing. prohibition shaU not extend to 
 actions discontinued before a justice of the: peace and prosecuted 
 in another court, pursuant to sections sixty and -sixty-eight <rf this 
 code. But , no appeal, to the cowrt of appeal) shdO, be had or heard 
 herefifter from, any order or jiidgment in any proceeding under chapter 
 three hundred and thirty^M of theloMs of eighteen hundred and 
 
 4. An appeal from any order to the court of appeals, affecting a 
 substantial right, arising upon any interlocutory proceeding, or upon 
 any question of practice in the action, induding an order to strike out 
 an avMoer, or any part of an answer, or any pleading in an action, 
 may be heard as a motion, and noticed for hearing for any regular 
 motion day of the court 
 
 § 11. (As am'd in 1870.) The court of appeals shall have exclusive 
 jurisdiction to review, upon appeal, every actual determination here- 
 after made at a general term by the supreme court, or by the supe- 
 rior court of the city of New York, or the court of common pleas 
 for the city and county of New York, or the superior court of the 
 city of Buffalo, in the following cases, and no other : 
 
 1. In a judgment in an action commenced therein or brought 
 there from another court; and upon the appeal. from such judg- 
 ment, to review any intermediate' order involving the merits, and 
 necessarily affecting the judgment. 
 
 2; In an order affecting a substantial right, made in such action, 
 when .such order in effect determines the action, and prevents a 
 judgment from which an appeal might be taken, or discontinues 
 the action, and when such order grants or refuses a new trial, or 
 when such order strikes out an answer or any part of an answer, 
 or any pleading in an action; but no appeal to the court of appeals^ 
 from an order granting a new trial, on a case made or bill of excep- 
 tions, shall be effectual for any purpose, unless the notice of appeal 
 contain an assent on the part of the appellant that, if the order be 
 affirmed, jtid^nent absolute shall be rendered against the appellant 
 Upon every appeal from an order granting a new trial, on a case 
 ■made or exceptions taken, if the coiu-t of appeals shall determine 
 3 
 
14 CODK OP PEOCEDUEB, [§ 12, 13. 
 
 that no error was committed in granting the new trial, they shall 
 render judgment absolute upon the right of the appellant;, and 
 after the proceedings are remitted to the court from which tha 
 appeal was taken, an assessment of damages, or other proceedings 
 to render judgment effectual, may he then and there had, in cases 
 where such subsequent proceedings are requisite. 
 
 3. In a final order afEbcting a substantial right made in a special 
 proceeding, or upon a summary application, in an action after judg- 
 ment, and upon such appeal to review any intermediate order involv- 
 ing the merits, and necessarily affecting the order appealed from. 
 But such appeal shall not be allowed in an action originally com- 
 menced in a court of a justice of the peace, or in a marine court 
 of the city of New York, or in an assistant justice's court of that 
 city, or in a justice's court in any of the cities of this State, unless 
 any such general term shall, by order duly entered, allow such 
 appeal before the end of the next term after which such judgment 
 was entered. The foregoing prohibition shall not extend to actions 
 discontinued before a justice of the peace, and prosecuted in another 
 court, pursuant to sections sixty and sixty-eight of this code. 
 
 4. In an order affecting a substantial right, Twt irmlmng any ques- 
 tion of dUeretion arising upon any interlocutory proceeding, or 
 upon any question of practice in the action, including an order to 
 strike out an answer, or any part of an answer, or any pleading in 
 an action, stieh appeals, whether now pending or Jieireafter to be IrottgM, 
 may be heard as a motion, and noticed for hearing for any regu- 
 lar motion day of the court. 
 
 § 12. (Being § 18 of 1848.) The court of appeals may reverse, 
 afiirm, or modify the judgment or order appealed from ; and its 
 judgment shall be remitted to the court below, to be enforced 
 according to law. 
 
 § 12. (As am'd in 1849.) The court of appeals may reverse, aflBrm 
 or modify the judgment or order appealed from, in whole or in 
 part, and as to amy or aJll of the parties; and its judgment shadl be 
 remitted to the court' below, to be enforced according to law. 
 
 § 18. (Bemg § 13 of 1848.) There shall be six general terms in 
 each year, to commence on the first Tuesday of January, March, 
 May, July, September and November, and to continue until the 
 
§ 13.] CODS OP PEOCBDUEE. 15 
 
 fourth Satnrday thereafter, inclnsive, unless all the causes ready for 
 hearing be sooner heard. They may, however, be continued as 
 much longer as the court shall deem necessary. 
 Additional terms may also be held by order of the court 
 (Am'd in 1851, 1853, 1858, 1859, 1862, 1863, 1865, 1869.) 
 
 § 13. (As am'd in 1851.) There shall be/»«r terms of the court of 
 appeals in each year, to be field at the eapUol in ihe dty of Albany, 
 cm the first Tuesday of January, the fourth Tuesday of Miireh, the 
 third Tuesday tfjnne and the third Tuesday of September, and con- 
 tinued for as long a period as the public interests may require. 
 
 Additumal, terms shall be appointed and held at the someplace by the 
 court when the pubHe interest rehires it. The court may by generai 
 rules promde what causes shall home a preference on the ccderuUvr. 
 
 § 13 (As am'd in 1852.) There shall be four terms of the court 
 of appeals in each year, to be held at the capitol in the city of 
 Albany, on the first Tuesday of January, the fourth Tuesday of 
 Harch, the third Tuesday of June and the last Tuesday of Septem- 
 ber, and continued for as long a period as the public interests may 
 require. 
 
 Additional terms shall be appointed and held at the same place 
 by the court when the public interest requires it. The court may 
 by general rules provide what causes shall have a preference on the 
 calendar. 
 
 § 18. (As am'd in 1858.) There shall be four terms of the court 
 of appeals in each year, to be held at the capitol in the city of 
 Albany, on the first Tuesday of January, the fourth Tuesday 
 of March, the third Tuesday of June and the last Tuesday of Sep- 
 tember, and continued for as long a period as the public interests 
 may require. 
 
 Additional terms shall be appointed and held at the same place 
 by the court when the public interests require it. The court may 
 by general rules provide what causes shall have a preference on 
 the calendar. On a second and each subsequent appeal to the court of 
 appeals the cause shdU be placed upon the calendar as of the time 
 cffUng the return on the first appeal. 
 
 § 13. (As am'd in 1859.) There shall be four terms of the 
 court of appeals in each year, to be held at the capitol in the city 
 
19 CODE OP ;P^OGBD57IlB.^ [§ 13; 
 
 of i^lbany, on the fiist Tuesday (rf Januaiyj the fourth Tuesday of 
 Maioli, the third TmesdayiPf ■ June,,and the last Tuesday of Septem- 
 ber, and continued fpp as long a period as th§ public interests may 
 require. ^ButtJifi jvdgegof,smd'cov^tmay,.mt'heir discretion, a^p^t 
 one of said termS' in each year to be held in the eity cf Jfew^ Tork. ; 
 
 Additional terms shall be appointed and held at the same place 
 by the' court, when the public interests require it. The court may 
 byge&eral rules provide what causes shall have a preference on 
 the calendar. On a second and each subsequent appeal to the 
 court of appeals the cause shall be placed upon the calendar as of 
 the time of filing the return on the first appeal 
 
 § 13. (As am'd in 186».) There Shall be four terms of the court of 
 appeals in each year, to 'be held at the capitol ih the city of Albany, 
 on the first Tuesday of January,, the .fourth Tuesday of March, the 
 third Tuesday of June and the last Tuesday of September, and con- 
 Isnued for as long a period aa the public interests may require. But 
 the judges of said court may, in their discretion, appdlnt one of 
 said terms in each year to be held in the city of iN'ew York. 
 
 Additional terms shall be appointed and held at the same place 
 by the court, when the public interests require it. The court may 
 by general rulgs provide what causes shall have a preference on 
 the calendar. On a second and eacb subsequent appeal to the court 
 of appeals, or when an appeal, has once been dismissed for Ssfect or 
 irregvXa/rity, the cause shall be placed on the calendar as of the time 
 of filing the first appeal. 
 
 § 13.- (As am'd in 1863.) There shall be fo;ur terms of the court of 
 appeals in each year, to be held at the capitol in the city of Albany, 
 pn the first Tuesday of January, the fourth Tuesday of March, th|e 
 third Tuesday of June and the last Tuesday of September, and con- 
 tinued, for as long a period as the public interests may require. But 
 the judges of said court may, in their discretion, appoint .one of said 
 ^rms in each year to be held in the city of New Tork. 
 
 Additional terms shall be appointed and held at the same place 
 by the court,, when the public interests require it. The court may 
 by general rules provide what causes shall have a preference on the 
 calendar. On a second and each subsequent appeal to the court of 
 appeals, or, when an appeal has once been dismissed for > defect or 
 iixegulaiity, thecause shall be placed on the calendar as of the,tirne 
 
§ 13.] CODB OF PEOCEDtTEB. 17 
 
 of filing tlie first appeal ; amd, wlteneser in any aetion or proceeding 
 in inhieh the people cf this state or any state officer, or any board of 
 \tate officers, is or are sole pontiff or defendant, an appeal has been or. 
 shall be brought from any judgment or order for -or against him or ihem 
 in any eov/rt, sitdt appeal shaU haw a prefe/remce in the suprcTne court 
 and in the court of appends, amd may be mor>ed by either party out of 
 the order on the cdtendar. 
 
 § 13. (As am'd in 1865.) There shall be four terms of the court of 
 appeals in each year, to be held at the capitol in the city of .Albany, 
 on the first Tuesday of January, the fourth Tuesday of Marchy the 
 third Tuesday of June and the last Tuesday of September, and con- 
 tinued for as long a period as the public interests may require. But 
 the judges of said court may, in their discretion, appoint ■ one of 
 said terms in each year to be held in the city of New York. 
 
 Additional terms shall be appointed and held at the same place 
 by the court; when the public interest requires it. The court may, 
 by general rules, provide what causes shall have a preference on 
 the calendar. On a second and each subsequent appeal to the court 
 of appeals, or when an appeal has once been dismissed for defect 
 or irregularity, the cause shaU be placed upon the calendar as of 
 the time of filing the first appeal, and may be noticed and put on 
 the calendair for any succeeding term; and whenever, in any action 
 or proceeding in which the people of this State, or any State officer, 
 or any board of State officers, is or are sole plaintiff or defendant, 
 an appeal has been or shall be brought from any judgment or order 
 for or against Tiim or them, in any court, such appeal shall have a 
 preference in the supreme court and in the court of appeals, and 
 may be moved by either party out of the order on the calendar. 
 
 § 13. (As am'd in 1869.) There shall be four terms of the court of 
 appeals in each year, to be held at the capitol in the city of Albany, 
 on the first Tuesday of January, the fourth Tuesday of March, the 
 third Tuesday of June and the last Tuesday of September, and con- 
 tinued for as long a period as the pubic interests may require. But 
 the judges of said court may, in their discretion, appoint one of 
 said terms in each year to be held in the city of New York. 
 
 Additional terms shall be appointed and held at the same place 
 by the court, when the public interest requires it. The court may, 
 by general rule, provide what causes shall have a preference on the 
 2* 
 
18 CODE OF PEOCKDUEB. [§ 14. 
 
 calendar. On a second and each subsequent appeal to the court 
 of appeals, or when an appeal has once been dismissed for defect 
 or irregularity, the cause shall be placed upon the calendar as of 
 the time of filmg the first appeal, and may be noticed amd put on t?te 
 cahndiw fw any mcceeclmg term; and whenever in any action or 
 proceeding in which the people of this State, or any State oflScer, 
 or any hoard of State officers, is or are sole plaintiff or defendant, 
 an appeal has been or shall be brought from any judgment or order 
 for or against him or them, in any court, such appeal shall have a 
 preference in the supreme court and in the court of appeals, and 
 may be moved by either party out of the order on the calendar. 
 • And actums in wTiich one cf two or more plaintifft or defendants shaU 
 lume died pending the action, and the pendency of the action prevents 
 ajifud settlement of the estate of the deceased pairty, shaU he preferred 
 on. the calendar. 
 
 § 14. (Being § 14 of 1848.) The concurrence of five judges shall 
 be necessary to pronounce a judgment If five do not concur the 
 appeal shaU be reheard. 
 
 (Am'd m 1849, 1861, 1867.) 
 
 § 14. (As am'd in 1849.) The coflcurrence of five judges shall be 
 necessary to pronounce a judgment. If five do not concur th^ 
 judgment or order appealed from shaU be affirmed, unless the court 
 order a rehea/ring. 
 
 § 14 (As am'd in 1851.) The concurrence of five judges is neces- 
 sary to pronounce a judgment. If five do not concur the case must 
 be reheard. But no mere than two rehea/rings sTtaU be had, and if on 
 the sectmd reJiearing foe judges do not concur the judgment shaM be 
 
 § 14. (As am'd in 1867.) The concurrence of five judges is necessaiy 
 to pronounce a judgment If" five do not concur the case must be 
 reheard. But no more than two rehearings shall be had, and if on 
 the second rehearing five judges do not concur, the judgment shall 
 be affirmed. When jvoe of the judges do not concur, and a rehearing 
 of the case is ordered, the judges shaUjUe the opinions read by them vyith 
 the reporter qf the court, but such opinions shall not be published. No 
 person other than the judges of the court, the reporter of the court, or 
 
§§ 15, 16.] CODE OV PBOCBDUBS. 19 
 
 t?ie counsel or atUymeg of eiOiw of the pa/rties to the oMon, tluiXL havt 
 aeeets to, or a copy of the said opinions, but such counsel or attorn^ 
 may home access to and a copy thereof. 
 
 % 15. (Added in 1849.) If at a term of the court of appeals, proper 
 and convenient rooms, both for the consultation of the judges and 
 the holding of the court, with furniture, attendants, fuel, lights and 
 stationery, suitable and sufficient for the transaction of its business, 
 bo not provided for it, in the place where by law the court may be 
 held, the court may order the sheriff of the county to make such 
 provision, and the expense incurred by him in carrying the order - 
 into effect, shall be a county charge. 
 
 § 16. (Added in 1849.) The court of appeals may be held in other 
 buildings than those designated by law as places for holding courts, 
 and at a different place in the same dty or town from tliat at which 
 it is appointed to be held, and may, in its discretion, adjourn any 
 term from the city or town where it is appointed to be held, to any 
 other city or town. Any one or more of the judges may adjourn 
 the court, with the like effect as if all were present 
 
 (Am'd in 1851.) 
 
 §16. (As am'd in 1851.) The court of appeals may be held in other 
 buOdings than those designated by law as places for holding courts, 
 and at a different place in the same city from that at which it is 
 appointed to be held. Any one or more of the judges may adjourn 
 the court, with the like effect as if all were present. 
 
20 CODE OP PEOGBDtTEB. [§ 17. 
 
 TTTIiE m. 
 
 Of the Bwpreme CovH, Circuit Courts, and Cou/rts of Oyer and 
 
 Sectioh 17. Existiiig statntory providond, as to terms and Ijusiii^m df tbe conrttf 
 repealed, and order of .^uprpme, court fisiiig ^ tbe termB^ ^tc., 
 abrogated. 
 
 18. General terms prescribed. - : ' . : . . , ; , 
 
 19. Number of judges to give judgment. 
 
 SOJ Special terms^ circuit courts, and courts of oyer and terminer pre 
 
 scribed, , ,■■.,', . , 
 
 21: Circuit courts and oyer and terminer held together. 
 U2. DesignatiQD of times and places of holding courts^ bow made. 
 
 23. Extraordinary general and special terms, and oyer and terminer; 
 
 bow appointed. 
 
 24. Places of holding the courts. 
 
 25. Publication of appointment thereof. 
 
 '26: When judges not assigned may hold the courts.^ . ] 
 27.' Duties of judges as to business out of court. 
 • 28. Rooms, fuel,, etc. ; howfumished. 
 
 § 17. (Being § 15 of 1848.) AH statutes now in force, providing 
 for the designation of the times and places of holding the general 
 and special terms of the supreme court, and the circuit courts and 
 courts of oyer and terminer, and of the judges who shall hold the 
 same, are repealed from and after the first day of July next ; and 
 the order of the supreme court, adopted July 14, 1847, prescribing 
 the times and places of holding the general and special terms of the 
 court, and the circuit courts and courts of oyer and terminer, during 
 the residue of the year 1847, and for the years 1848 and 1849, and 
 assigning the business and duties thereof tb the several judges of 
 the court, is, from and after the first day of July next, abrogated; 
 and the provisions of this title are substituted in place thereof. 
 
 (Am'd in 1849.) 
 
 § 17. (As am'd in 1849.) All statutes now in force, providing for 
 the designation of the times and places of holding the general and 
 special terms of the supreme court, and thfe circuit courts and courts 
 of oyer and terminer, and of the judges who shall hold the same, 
 are repealed from and after the first day of July, one thousand eight 
 hundred and forty-eight; and the order of the supreme court, 
 adopted July fourteen, one thousand eight hundred and forty-seven, 
 prescribing the times and places of holding the general and special 
 terms of the court, and the circuit courts and courts of oyer and 
 terminer, during the residue of the year one thousand eight hundred 
 
§§ 18-^20.] CODE OB' PEOCKCUEE. 21- 
 
 ond forty-seven, and for the years one thousand eight hundred and 
 forty-eight apd one thousand eight hundred and forty-nine, and 
 assigning the business and duties thereof to the several judges of 
 the court, is, from and after the first day of July, one thousand 
 eight hundred and forty-eight, abrogated ; and the provisions of this 
 title are substituted in place thereof. 
 
 § 18. (Being § 16 of 1848.) Six general terms of the supreme 
 court shall be held annually in each judicial district, and be con- 
 tinued at least fifteen days, unless sooner adjourned for want of 
 business. They may, however, be continued as much longer as the 
 court shall deem necessary. 
 
 (Am'd in 1849.) 
 
 § 18. (As am'd in 1848.) At least /<«*»• general terms of the supreme 
 court shall be held annually in each judicial district, arvi as many 
 more as the judges in sv/3h distriet shaU appoint, at iueh times and 
 planes as a majority of the judges of such distriet shaU appoint. 
 
 % 19. (Being § 17 of 1848.) The concurrence of a majority of the 
 judges holding a general term shall be necessary to pronounce a 
 judgment. If a majority do not concur, the case shall be reheard. 
 
 § 30. (Being § 18 of 1848.) The number of special terms, circuit 
 courts and courts of oyer and terminer, annually, in the several 
 counties, shall be as follows : 
 
 Sleten in the city and county of New Tork. 
 
 /fe in the counties of Albany, Erie, Kings, Monroe and Oneida. 
 
 Vi'oe in the counties of Dutchess, jefiferson, Onondaga, Rensselaer 
 and St Lawrence. 
 
 Tbwr in the counties of Allegany, Cayuga, ChaiitattqUa,' Chenango, 
 Columbia, Delaware, Herkimer, Livingston, Hadison, Niagara, On- 
 tario, Orange, Oswego, Otsego; Saratoga,' Steuben, Suffolk, Tomp- 
 kins, TJlster, 'Washington, "Wayne and Westchester. 
 
 Three in the counties of Broome, Cattaraugus, Chemung, Clinton, 
 Cortland, Essex, Franklin, Pulton with Hamilton, Genesee, Greene, 
 Lewis, Montgomery, Orleans, Putnam, Queens, Richmond, Rock- 
 land, Schenectady, Schoharie, Seneca, Sullivan, Tioga, "Warren, 
 ■Wyoming and Yates. 
 
 (Am'd in 1849.) 
 
22 CODE OP PEOCEDtTRB. [§§ 20-22. 
 
 § 90. (As am'd in 1849). There shaa te at leatt two tenm (f the 
 cireuit court amd eowrt of oyer <md terminer hM ammuo^ in each of 
 fhe counties cf thie state, and as many m,ore terms theretf, and as mang 
 speeidl terms, as the Judges of each judidai district shaJl a/ppoint therein, 
 but at least one spedal term shaO be hM ammuMy in each cf said 
 counties. MUton and Ma/mUton shaU be considered one coun^ for fhe 
 purposes of this section. 
 
 § 31. (Being § 19 of 1848.) Special terms, circviit courts and courts 
 of oyer and terminer shall be held at the same places and com- 
 menced on the same day. 
 
 (Am'd in 1849.) 
 
 § 21. (As am'd in 1849.) Circuit courts and courts of oyer and 
 terminer shall be held at the same places, and commenced on the 
 same day. 
 
 (§ 20 of 1848 — omitted in 1849. The special term shall continue 
 until the adjournment of the circuit court ; and the judge may con- 
 tinue it longer or adjourn it to any other time or place, -within the 
 coimty.) 
 
 (§ 21 of 1848 — omitted in 1849. The circuit court shall continue 
 at least twelve days, unless sooner adjourned for want of business. 
 It may, however, be continued as much longer as the court shall 
 deem necessary.) 
 
 (§ 22 of 1848— omitted in 1849. The court of oyer and terminer 
 may continue as long as the court shall deem necessary.) 
 
 § 33. (Being § 23 of 1848.) The governor shall, on or before the 
 first day of May next, by appointment in writing, designate the 
 times and places of holding the general and special terms, circuit 
 courts and courts of oyer and terminer, and the judges by whom 
 they shall be held; which appointment shall take effect on the first 
 day of July thereafter, and shall continue until the thirty-first day 
 of December, 1849. The judges of the supreme court shall, in like 
 manner, at least one month before the expiration of that time, 
 appoint the times and places of holding those courts, for two years, 
 commencing on the first day of January, 1850, and so on, for every 
 two succeeding years. 
 
 (Am'd in 1849.) 
 
§§ 22-24.] COBB OF PEOCKDTJEB. 23 
 
 § 22. (As am'd in 1849.) The governor shall, on or before the 
 first day of May, one thousand eight hundred and forty-eight, by 
 appointment in writing, designate the times and places of hold- 
 ing the general and special terms, circuit courts and courts of oyer 
 and terminer, and the judges by whom they shall be held; which 
 appointment shall take effect on the first day of July thereafter, 
 and shall continue until the thirty-first day of December, one 
 thousand eight hundred and forty-nine. The judges of the supreme 
 court of each, district shall, in like manner, at least one month 
 before the expiration of that time, appoint the times and places of 
 holding those courts for two years, commencing on the first day of 
 January, one thousand eight hundred and fifty, and so on, for every 
 two succeeding years, in their reipeetioe cUatriett. 
 
 I 23. (Being § 24 of 1848.) The governor may also appoint extra- 
 ordinary general and special terms, circuit courts and courts of oyer 
 and terminer, whenever, in his judgment, tie public good shall 
 require it 
 
 § 24 (Being § 25 of 1848.) The places appointed within the seve- 
 ral counties, for holding the general and special terms, circuit courts 
 and courts of oyer and terminer, shall be those designated by 
 statute for holding coimty or circuit courts. If a room for holding 
 the court in such place shall not be provided by the supervisors, it 
 may be held in any room provided for that purpose, by the sheriff, 
 as prescribed by section thirty-one. 
 
 (Am'd 1849, 1851, 1862.) 
 
 § 24. (As am'd in 1849.) The places appointed within the several 
 counties for holding the general and special terms, circuit courts 
 and courts of oyer and terminer, shall be those designated by statute 
 for holding county or circuit courts. If a room for holding the 
 court in such place shall not be provided by the supervisors, it may 
 DO held in any room provided for tliat purpose, by the sheriff, as 
 prescribed by section taenty-eighi. 
 
 § 24 (As am'd in 1851.) The places appointed within the several 
 counties, for holding the general and special terms, circuit courts 
 and courts of oyer and terminer, shall be those designated by statute 
 for holding county or circuit courts. If a room for holding the 
 
24 CODE OP PEOCEDUEE. [§§ 24, 25. 
 
 covirt in such place shall not be- provided by the supervisors, it may 
 be held iij any ropm provided for that purpose, by the sheriff, as 
 prescribed by section twenty-eight. 
 
 General and special terms of the supreme or county courts and cvr- 
 euit coiiris and courts of oyer and terminer, may be actjdurned to b« 
 held on any future day, iy an entry to he made in the minutes of the 
 court, and juries may be drawn and summxmed for an adjourned 
 circuit or county court, or an adjourned court of oyer and te/mvme/r, 
 and causes may he noticed for trial at an adjourned circuit or county 
 eou/rt, in the same manner as if such courts were held by original 
 appointment. 
 
 § 84. (As am'd in 1862.) The places appointed within the several 
 counties, for holdmg the general and special terms, circuit courts 
 and courts of oyer and terminer, shall be those designated by statute 
 for holding cOunty or circuit courts. If a room for holding the' 
 court in such place shall not be provided by the supervisors, it may 
 be held in any room provided for that purpose, by the sheriff, as 
 prescribed by section twenty-eight. 
 
 General and special terms of the supreme or county courts and 
 circuit courts and courts of oyer and terminer, may be adjourned to 
 be held on any future day, by an entry to be made in the minutes 
 of the court ; and juries may be drawn and summoned for an ad- 
 journed circuit or county court, or an adjourned court of oyer and 
 terminer, and causes may be noticed for trial at an adjourned cir- 
 cuit or county court, in the same manner as if such courts were held 
 by original appointment. 
 
 And speeioA terms maiy he odjoumM to he KM atafutwre diiy-at tf ■ 
 chambers of am/y justice of said court residing witTiin the district, by an 
 entry in the sa/me manner, and then a^oumedfrom time to time, as the 
 justice holding the sa/me shaU order a/nd direct. 
 
 § 25. (Being § 36 of 1848.) Every appointment, so made, shall be 
 immediately transmitted to the secretary of state, who shall cause 
 it to be published in the newspaper pi in ted at Albany, in which 
 legal notices are rec^uitea to be inserted; at least once in each week 
 forthree weeks before this holding of any court in pursuance thereof. 
 The expense of the publication shall be paid out of the treasury of 
 the state. 
 
§§ 26-28.] CODE OF PBOCEDITEE. 25 
 
 (§ 27 of 1848— omitted in 1849. Tlie flesignatioa of juSges to 
 hold the courts shall he sttdt as that not more than one-half, nor 
 less than one-f onrth of Hie courts to -which each shall he assigned, 
 Aall be held ont of the district Tvithin which he was elected ; and so 
 that, of the jndges who shall hold a general term, one at least shall 
 sit at the next succeeding general term, and shall deliver the judg- 
 ments of the judges who held the preceding term, in causes there 
 argued and held under advisement.) 
 
 § 26. (Being § 28 of 1848.) In case of the inability, for any cause, 
 of a judge assigned for that purpose, to hold a special term, or cir- 
 cuit court, or sit at a general term. Or preside at a court of oyer 
 and terminer, any other judge may do so. 
 
 {§ 29 of 1848— omitted in 1849. Withm ten days after the expira- 
 tion of every term and circuit court, the clerk shall certify to the 
 governor the number of actions on the calendar, the number tried 
 or heard, the number decided, the number remaining undisposed 
 of, and the duration .of the term or circuit.) 
 
 §27. (Being §30 of 1848.) The judges shall at all reasonable 
 times, when not engaged in holding court, transact such other busi- 
 ness as may be done out of court. One of the judges elected in the 
 first judicial district, to be designated from time to time among 
 themselves, shall attend for that piu^ose, at the city hall in the city 
 of. New Tork, on every judicial day, from ten o'clock in the fore- 
 noon until three o'clock in the afternoon, and longer, if the business 
 require it; and every proceeding commenced before one of those 
 judges may be continued before another with the same effect as if 
 commenced before him. 
 
 (Am'd m 1849.) 
 
 § 27. (As am'd in 1849.) The judges shall at all reasonable times, ■ 
 when not engaged in holding court, transact such other business as 
 maybe done out of court. Every proceeding commenced before 
 one of the judges, in the first judicial district, may be continued be- 
 fore another, with the same effect as if commenced befo^ him. 
 
 a 
 
 § 3S, (Being § 31 of 1848.) The supervisors of the several 'counties 
 shall provide the courts appointed to be held therein, with rooms, 
 3 
 
26 CODE OP PE0CBDT7EE. [§§ 29> 30. 
 
 attendants, fuel, lights and stationery, suitable and sufScient for the 
 transaction of their business. K the supervisors neglect, the court 
 may order the sheriflf to do so ; and the expense incurred by him in 
 carrying the order mto effect, when certified by the court, shall be 
 a county charge. 
 
 TTFIjE IV. 
 
 Of the County Cowrts. 
 
 Sbction 29. Repeal of existing statutes, defining tlieir jnrisdlction. - 
 
 30. Their jurisdiction. 
 
 31. General tenns; whenbeld. Notice to be published. 
 
 32. Jurors ; bow drawn and sommoned. 
 
 § 29. (Being § 32 of 1848.) All statutes now in force, conferring 
 or defining the jurisdiction of the county courts, are repealed; and 
 those courts shall have no other jurisdiction than that provided in 
 the next Section. But the repeal contained in this section shall not 
 affect any proceedings now pending in those courts. 
 
 (Am'dinl849.) 
 
 § 29. {As am'd in 1849.) All statutes now in force, conferring or 
 definining the jurisdiction of the county courts, «o fmr as they con- 
 flict with this act, are repealed ; and those courts shall have no other 
 jurisdiction than that provided in the next section. But the repeal 
 contained in this section shall not affect the proceedings now pend- 
 ing in those courts. 
 
 § 30. (Being § 33 of 1848.) The county courts shall have jurisdic- 
 tion in the following actions and proceedings : 
 
 1. The exclusive power to review a judgment rendered in a civil 
 action within their respective counties, by a court of a justice of the 
 peace, or by the justice's courts in the cities of Albany, Troy and 
 Hudson, respectively. 
 
 2. For the foreclosure or satisfaction of a mortgage, and the sale 
 of mortgaged premises within the county. 
 
 3. Tor the partition of real property within the county. 
 
 4. For the admeasurement of dower, in real property within the 
 county. 
 
 5. For the sale of the real property of an infant, when the prop- 
 erty is situated, and the infant resides, within the coimty. 
 
 6. For the care and custody of the person and estate of a person 
 of unsound mind, or an habitual drunkard, residing in the county. 
 
§ so.] CODE or PEOCEDUEK. 27. 
 
 7. For the mortgage or sale, on the application of a religious cor- 
 poration of its real property within the county, and the appropria- 
 tion of the proceeds thereof. 
 
 8. In cases in which jurisdiction was vested by the Revised Stat- 
 ntes in the late courts of common pleas, under the provisions relating 
 to attachments against absconding, concealed and non-resident 
 debtors, to voluntary assignments, made pursuant to the application 
 of an insolvent and his creditors, and to voluntary assignments 
 by persons impiisoned on execution in civil cases. 
 
 0. In proceedings for the remission of fines and forfeited recog- 
 nizances. 
 
 (Am'd in 1849, 1851, 1852 and 1860.) 
 
 § 30. (As am'd in 1849.) The county courts shall have jurisdiction 
 in the following actions and proceedings : 
 
 1. The exclusive power to review, in the first instance, a judgment 
 rendered in a civil action within their respective counties, by a court, 
 of a justice of the peace, or by the justices' courts in cities. 
 
 3. For the foreclosure or satisfaction of a mortgage, and the sale 
 of mortgaged premises situated within the county. 
 
 3. For the partition of real property Htuated within the county. 
 
 4 For the admeasurement of dower in real projjerty situated 
 within the county. 
 
 5. For the sale of the real property of an infant, when the prop- 
 erty is situated within the county. 
 
 6. To compel a specific performance ly an infant heir, or other per- 
 son, of a contract made by a pwrty who shaU ha/ce died Ixfore the 
 performamce thereof. 
 
 1. For the care and custody of the person and estate of a lunatie 
 or person of unsound mind, or an habitual drunkard, residing within 
 the county. 
 
 8. For the mortgage or sale, on the application of a religious cor- 
 poration, of its real property, situated within the county, and the 
 appropriation of the proceeds thereof. 
 
 9. To remve judgments entered in the late courts of common pleas in 
 their reipectine counties, and to exercise the power and authority here- 
 tofore tested in such courts of comrmm pleas, over juc^ments rendered 
 Sy jus^ees of the peace, transcripts of which home been filed in the 
 offices of the cminty clerks in such counties. 
 
 10. In cases in which jurisdiction was vested by the Revised Stat- 
 utes, in the late courts of common pleas, under the provisions 
 
28 CODE OP PEOCEDUEE. [§ 30. 
 
 relating, to attachments against absconding, concealed or non-resi- 
 dent debtors ; to voluntary assignments made pursuant to the appli- 
 cation of an insolvent and his creditors ; to voluntary assignments 
 by persons imprisoned on execution in civil cases, and the McenMng 
 amd regvXation of ferries, and the regulation of Jitheries in their reapeet^ 
 ite counties, vmMl the first day of Jcmuary, 1850. 
 
 11. To remit fines amd forfeited reoogniBamces, in the same eases and 
 in, Uke numner as meh power was given by law to courts of common 
 pleas. 
 
 § 30. (As aiji'd in 1851.) The county court h<is jurisdiction in the 
 following gpedal cases, but has no original dvil jwrisdieUon except in 
 such cases : 
 
 1. Ciml actions in which the relief demamded is the recovery <f a mm 
 of money not eaxeedingfm hundred doUars, or the recovery <f the pos- 
 session of personal property net exceeding in ndhie fme h/undred doUa/rs, 
 amd in which aU the defendants are residents of the county in which the 
 action is brought at the tinw of its commumcement ; sul^ect to the right 
 of the supreme court v/pon spedaL moMon for good cause shown to 
 remove any such action to the supreme court defore trial. 
 
 3. The exclusive power to review, in the first instance, a judgment 
 rendered in a civil action by a justices court in the county, or by a 
 justices court in cities, and to affirm, reverse or modify such judgment. 
 
 3. The foreclosure or satisfaction of a mortgage, and the sale of 
 mortgaged premises situated within the county, amd the collection of 
 amy defideney on the mortgage, remmning unjmd, after the sale of the 
 
 4. The partition of real property situated within the county. 
 
 5. The admeasittement of dower in land situated within the county. 
 
 6. The sale, mertga^ge or other dixposition of tht real property 
 situated within the county, of an infant, or person of unsound mind. 
 
 7. To compel the specific performance, by an infant heir, or other 
 person, of a contract made by a party who shsill have died before 
 the performance thereof. 
 
 8. The care and custody of the person and estate of a lunatic or 
 person of unsound mind, or an habitual drunkard, residing within 
 the county. 
 
 9. The mortgage or sale of the real property, situated within the 
 county, of a religious corporation, and the disposition of the proceeds 
 thereof. 
 
§ 30.] CODB OF PEOCBDUBB. 29 
 
 10. To exercise the power and authority heretofore vested in such 
 courts of common pleas, over judgments rendered by justices of 
 the peace, transcripts of' which have been filed in the offices of the 
 county clerks in such counties. 
 
 11. lb exercise aU the powers and jwisdictlon conferred by statute 
 upon the late eowrts of common pleas of the county, or the judges or any 
 judge thereof, respecting ferries, fisheries, turnpike roads, wrecks, 
 physicians, habitual drunkards, imprisoned, inaoVoent, absent, concealed 
 vr rum^eadent debtors, ga/H liberties, the removal of occupants from Slate 
 lands, the laying out of railroads through Indian lands, and upon appeal 
 from the determination of eom/missumers of highways, and aU other 
 powers and jurisdiction conferred by statute, which has not been repealed, 
 on the late court of e(nrmwn pUas of the county, or on the emmty court, 
 druse the late courts of common pleas were abolished, accept in the trial and 
 determiTUjUon of dvil actions; and to prescribe the nw/rmer of exercising 
 such jurisdiction, when the provisions of any statute are inconsistent with 
 the organization of the county court. 
 
 13. To remit fines and forfeited recognizances in the same cases 
 and like manner as such power was given by law to courts of com- 
 mon pleas. But the first subdivision of this section shaU not apply to 
 the county courts of the counties of Kings, Albany, Monroe and Erie. 
 
 13. To grant new trials, or ajirm, modify or reverse judgments in 
 actions tried in such court upon a bUl of exceptions, or case made subject 
 to an appeal to the supreme court. 
 
 § 30. (As am'd in 1852.) Same as § 30 as amended in 1851, 
 except in subdivisions 12 and 13, which were amended so as to read 
 as follows : 
 
 12. To remit fines and forfeited recognizances in the same cases 
 and like manner as such power was given by law to courts of com- 
 mon pleas. But the first subdivision of this section shall not apply 
 to the coimty courts of the counties of Kings and Erie. 
 
 13. To grant new trials or affirm, modify or reverse judgments in 
 actions tried in such court upon exceptions, or case made subject to 
 an appeal to the supreme court; but any action or proceeding pending 
 in the county court in which the county judge is for any ca/use incapable 
 (facing, may be transferred by the county court to the supreme court, 
 and thereupon the papers therein on file in the county court shaU be 
 transmitted to the supreme court in the same district, which shcM thence- 
 forth 7ia/Be jurisdiction of such action or proceeding. 
 
 3* 
 
30 COPE OF PEOCEDURE. [§§30,31. 
 
 .§30. (As am'd in 1860.) Same as § 30, as amended in 1853, 
 except sub. 13, which was amended so as to read as follows : 
 
 13. To grant new trials, or affinn, modify or reverse judgments in 
 actions tried in such court upon exceptions, or case made subject to an 
 appeal to the supreme court ; but in any action or proceeding pend- 
 ing in the county court, in which the county judge is, for any cause, 
 incapable of acting, it ahaU be his drnty to make a certificate of such fact 
 and JUe the same in the ojiee of the derk of such county court,cmd Oiere- 
 upon jurisdiction of such action or proceeding shaU be vested in t?ie 
 supreme court, a/ndsuchfwrth&r proceedings shaXL be had therein, accord- 
 ing to the practice cfsueh court, as might have been had m the emmlg 
 court, if such cause or matter had remained therein; hut aU audi matters 
 shaU be Tieard or tried in the first instance at a special term or circuit 
 cou/rt, held in a county where such action or proceeding is situated. 
 
 % 31. (Being § 34 of 1848.) A general term of each county court, 
 for the final hearing of actions or proceedings pending therein, shall 
 be held at the places in the counties respectively designated by.- 
 statute for holding county or circuit courts, on the first Tuesday of 
 January, March, May, July, September and November, in each year, 
 and may continue as long as the court deem necessary. The court 
 shall be deemed always open, for the transaction of any other 
 business. 
 
 (Am'd in 1849 and 1851.) 
 
 g 31. (As am'd in 1849.) At least two general terms of each county 
 court, and as man/y mare as the county judge shaU appoint for the final 
 hearing of actions or proceedings gending therein, shall be held in 
 each yea/r at the places in the counties, respectively, designated by 
 statute for holding county or circuit courts, on such days as the 
 county judge shaUfrom time to time appoint, and may continue as long 
 as the court deem necessary 
 
 Notice of such appointment shod be published in the State paper, at 
 least fow weeks before any such term, and also in a newspaper, if any, 
 printed in the county/ so many <^sueh terms as the county judge shaU 
 designate for that purpose, in such notice, may be held for the trial of 
 issues (f km, and hearing and decision of motions and other proceedings 
 at which no jury shall be reguired to attend. 
 
 § 31. (As am'd in 1851.) The county court is alaays open for the 
 transaction of any business for which no notice is rehired to be gioen to 
 
§ 32.] CODE OF PEOCBDUEE. 31 
 
 an opposing party. At least two tenrn in each county for the trial <^ 
 issues of law or fact, aai as many more as the covmty judge shall 
 appoint, shall be held in each year at the places in the comities, 
 respectively, designated by statute for holding county or circuit 
 courts, on such days as the county judge shall from time to time 
 appoint, and may continue as long as the court deem necessary. 
 
 Notice of such appointment shaU be published in the State paper 
 at least four weeks before any such term, and also in a newspaper, 
 if any, printed in the county; so" many of such terms as the county 
 judge shall designate for that purpose in such notice, may be held 
 for the trial of issues of law, and hearing and decision of motions 
 and other proceedings at which no jury shall be required to attend. 
 
 (§ 35 of 1848 — omitted in 1849. An issue of fact hereafter joined 
 in a county court, shall be tried by the court, imless, on motion of 
 either party, it shall order a jury trial.) * 
 
 (§ 36 of 1848— omitted in 1849. If a jury trial be ordered, the 
 court shaU direct the sheriff to summon eighteen residents of 
 the county competent as jurors, to appear before the court at a 
 time and place to be specified.) 
 
 (§ 37 of 1848 — omitted in 1849. A. jury shall be drawn from the 
 persons so smnmoned, or if there be a defect of jurors, it shall be 
 supplied as in other cases. The practice appertaining to jury 
 trials, and to the verdict of the jury, and the proceedings thereon, 
 as in this act provided, shall in aU respects apply to such trial.) 
 
 (§ 38 of 1848 — omitted in 1849. No jiiry shall hereafter be sum- 
 moned for a county court, except as provided in the last section. 
 Nor shall a grand or petit jury be summoned for a court of general 
 sessions of the peace (except in the city and county of New York) 
 unless so directed by the board of supervisors of the county. 
 
 § 32. (Added in 1849.) Jurors for the county courts and courts of 
 ■essions shall be drawn from the jury box of the coimty, and sum- 
 moned in the same manner as for the trial of issues at a circuit court 
 
32 CODE 01" PEOCEDUEB. [§ 33. 
 
 TTTLB V. 
 
 WtheSu,pert<n' C<ywH(mg, C(mrt ^ OmmonFkax,in.mc^ of Nm 
 : Ymh,(imA m Malyari ami Bewrdeiri OowHsm other atiea. 
 
 Section 33. Jurisdiction of the courts named in tils title. __.^ i„/i,m,o,.ta 
 
 34. Courtof common pleastorNewYorkhfls power to review JttdgmentB 
 
 of the marine and justices' courts. .„„„„„ «i.„. 
 
 35. General and special terms of the superior court and common pleas 
 
 to be appointed. 
 S6. By whom held. 
 87. Judgments, where given. 
 38. Concurrence of two judges necessary. 
 89. Criers, how appointed. Salaries, how fixed. 
 
 40. Superior court, of whom to consist. 
 
 41. Three justices of superior court to he elected. 
 
 42. How voted for. 
 
 43. How classified. * 
 
 44. Expiration of terms, and vacancies now filled. 
 
 45. Powers of judges and their salaries. 
 
 • 46. Terms of superior court and by whom held. 
 
 47. Certain civil suits may be transferred from the supreme to the supe* 
 
 rior court. 
 
 48. Jurisdiction of superior court in sncb cases. 
 
 49. Judges to hear for two years, suits transferred from supreme court. 
 60. Appeal to the court of appeals. 
 
 51. Section twenty-eight applied to superior court. 
 
 § 33. (Being § 39 of 1848.) The jvurisdiction of the superior court 
 of the city of New Tork, of the court of common pleas for the city 
 and county of New York, of the mayor's courts of me cities of 
 Albany, Hudson, Troy and Rochester, and of the recorders' courts 
 of the cities of Buffalo and Utica, shall extend to the following 
 actions : 
 
 1. To the actions enumerated in section 103, when the cause of 
 action shall have arisen, or the subject of the action shall be situated 
 within those cities respectively. 
 
 3. To all other actions, where all the defendants shall reside or be 
 personally served with the summons within those cities respectively. 
 
 3. To actions against corporations, created under the laws of this 
 state, and transacting their general business, or keeping an office for 
 the transaction of business within those cities respectively, or estab- 
 lished by law therein. 
 
 (Am'd in 1849 and 1852.) 
 
 § 33. (As am'd in 1849.) The jurisdiction of the superior court of 
 the city of New York, of the court of common pleas for the city 
 and county of New York, of the mayois' courts of cities, and of tho 
 recorders' courts of cities, shall extend to the following actions : 
 
§ 33.] CODE OF PEOCBDUEE. 33 
 
 1. To the actions enumerated in aectlona 133 and 124, wlien the 
 cause of action shall have arisen, or the subject of the action shall 
 be situated, witliin those cities respectively. 
 
 ■ 3. To aU other actions where aU the defendants shall reside, or be 
 personally served with the summons within those cities respectively, 
 except in the case of mayors and recorder^ courts ofdties, which courts 
 shall only Jui'ce jurisdiction where aU the defendants shall reside wilMn 
 (he txtms in which such courts aire respectively situated. The supreme 
 court shall ha/oe power and avXhority to renuroe, hy order, into the said 
 mpreme court, and the same power and OMthority to change theploice of 
 trial to any other county of this State, of any transitory action, pending 
 in said superior court or court of common pleas for the dty and county 
 vf New York, which U would have, had such a/slum been commenced in 
 said supreme amrty such order for removal and for change ofj^acefor 
 trial shdm be made in Oie supreme court upon motion, and on filing a cer- 
 tified copy a/' such order in the o^ffice of the derk of the said superior court, 
 or of the said court of common pleas, such ca/use shaU be deemed to be 
 removed into the supreme court, which shad proceed therein as if the same 
 'had origindCly been commenced there, and the clerk of eUher of said courts 
 in which such order shaU be fled shaM forthwith deliver to the derk of 
 the county in whu^,by such order,thetrial is ordered to be had, to be fled 
 in his office, all process, pleadings amd proceedings relating to such cause. 
 
 3. To actions against corporations, created under the laws of this 
 state, and transacting their general business, or keeping an ofBce for 
 tlie transaction of business, within those cities, respectively, or estab- 
 lished by law therein, or created by or under the laws of any other State 
 government or country, for the recovery of any debt or danwges, whdher 
 liquidated or rwt, arising upon contra/A made, executed, or delivered within 
 the State, or upon any cause of action, arising therein. 
 
 § 33. (As am'd inl852.) The jurisdiction of the superior court of 
 (he city of New York, of the court of common pleas for the city 
 and county of New Tork, of the mayors' coiurts of cities, and of the 
 recorders' courts of cities, shall extend to the following actions : 
 
 1. To the actions enumerated in sections 123 and 124, when the 
 cause of action shall have arisen, or the subject of the action shall 
 be situated, within those cities respectively. 
 
 2. To aU other actions where all the defendants reside, or are per- 
 Eonally served with the summons, within those cities, respectively, 
 or where one or more of several defendants, jdinUy liable on eontraet 
 
84 CODE OP PEOCEDtlEE. [§ 34. 
 
 reside, or are personalty s&rved ixnth the mimmons, imtJiin, those ciMes re- 
 spe(^vel^, except in the case of mayors' and recorders' courts o£ 
 cities, which courts shall only have jurisdiction where all the de- 
 fendants reside within the cities in which such courts are respect- 
 ively situated. The supreme court may remove into that court any 
 action brought wnder this suMwision cmd pending m the swperior cowrt 
 or court of common pleas for the eity and couniy of New York, and 
 may change the place of trial therein, as if such action had been com- 
 menced in the supreme court; such' order for removal and for 
 change of place of trial, to be made in the supreme coiui; upon 
 motion, and, on filing a certified copy of such order in the office of 
 the clerk of the superior court, or of the court of common pleas, 
 such cause shall be deemed to be removed into the supreme court, 
 which shall proceed therein as if the same had originally been com- 
 menced there; and the clerk with whom such order is filed must 
 forthwith deliver to the clerk of the county in which, by such order, 
 the trial is ordered to be had, to be filed in his office, all process, 
 pleadings, and proceedings relating to such cause. And any action 
 or proceeding pending in any mayor's or recorder's court, in which 
 the judge is for any cause incapable of acting, may ty such court be 
 transferred to the county court of the county, and thereupon the 
 papers therein on file in the mayor's or recorder's court shall be 
 transmitted to the county court, which shall theficeforth have juris- 
 diction of such action or proceeding. 
 
 3. To actions against corporations created under the laws of this 
 state, and transacting their general business, or keeping an office for 
 the transaction of business within those cities, respectively, or estab- 
 lished by law therein, or created by or under the laws of any other 
 state, government or country, for the recovery of any debt or dam- 
 ages,whether liquidated or not, arising upon contract made, executed 
 or delivered within the state, or upon any cause of action arising 
 therein. 
 
 § 34. (Being § 40 of 1848.) The superior court of the <aty of New 
 York shall also have power to review the judgments of the marine 
 court of the city of New York, and of the assistant justices? courts 
 in that city. 
 
 (Am'dinl849.) 
 
 § 34. (As am'd in 1849.) The court of common pleas for the city 
 and county of New York shaU also have power to review the judg- 
 ments of the marShe court of the city of New York, and of the 
 justices' courts in that city. 
 
§§ 35-45.] CODE OF PBOCBDUBK. 35 
 
 § 35. (Being § 41 of 1848.) The superior court of the city of New 
 York, and the court of common pleas for the city and county of 
 New York, shall, within twenty days, appoint general and special 
 terms of those coiirts respectively, and prescribe the duration 
 thereof; and th^ may, from time to time, respectively, alter such 
 appointments ; and hereafter no fees shall be paid for' any service 
 of a judge of either of those courts. 
 
 § 36. (Being § 42 of 1848.) A general term shall be held by at 
 least two of the judges of those courts respectively, and a special 
 term by a single judge. 
 
 § 37. (Being § 43 of 1848.). Judgments upon appeal shaU be given 
 at the general term ; all others, at the special term. 
 
 I 38. (Being § 44 of 1848.) The concurrence of two judges shall 
 be necessary to pronounce a judgment at the general term. If two 
 do not concur, the appeal shall be reheard. 
 
 § 39. (Added in 1849.) A crier shall be appointed by the superior 
 court of the city of New York, and by the court of common pleas 
 for the city and comity of New York, respectively, to hold his office 
 during the pleasure of the court. He shall receive a salary to be 
 fixed by the supervisors of the city and county of New York, and 
 paid out of the county treasury. 
 
 § 40. (Added in 1849.) The superior court of the city of New 
 York shaU, from the first day of May, 1849, consist of six justices. 
 
 (Sections 41, 43 and 43, of the Code, as am'd in 1849, related to 
 the election and classification of judges of the superior court of 
 New York city, whose terms expired December 31st, 1855, and 
 those sections have now become obsolete.) 
 
 § 44. (Added in 1849.) After the expiration of the terms of office 
 under such classification, the term of office of all the justices of the 
 superior court of the city of New York shall be six years ; and any 
 vacancy occurring in the offices created by this title shall be filled 
 in the manner prescribed for filling vacancies in the offices of the 
 present justices. 
 
 § 45. (Added in 1849.) The justices elected pursuant to this title, 
 subject to the provisions contained in section forty-nine, shall have 
 
36, pODE OB' PBOCEDTTBB, [§§ 46-51» 
 
 the same powers, and perform the same duties, in all respects, as the 
 present justices of, such superior court, and shall receive the same 
 salaries, payable in like manner. 
 
 § 4«. (Added in 1849.) A general term of the superior court may 
 he held by any two of the six justices thereof, and a special term 
 by any one of them ; and a general and special terms, one or more 
 of them, may be held at the same time. 
 
 g 47. (Added in 1849.) All civil suits at issue at the time of the 
 passage of this act,^that from and after the first of May, 1849, shall be 
 placed upon the calendar of the supreme court at any general or 
 special term thereof, to be held in the city of New York, and which 
 shall be in readiness fijr heuing on questions of law only, or are 
 equity cases, may, by an order of that court, or of the judge holding 
 such special term, be transferred to the said superior court of the 
 city of New York, and to be heard at the general terms, thereof, 
 hereinafter provided for. 
 
 § 47. (As am'd in 1851.) Same as § 47, as amended in 1849, except 
 that the last three words " hereinafter provided for" were stricken out. 
 
 § 48. (Added in 1849.) The said superior court shall have' juiisdip- 
 tion of every suit so transferred to.it, and may exercise the same 
 powers in respect to every such suit, and any proceedings therein, as 
 the supreme court might have exercised, if the suit had remained in 
 that court. 
 
 § 49. (Added in 1849.) It shall be the special duty of thie three 
 justices, to be elected under the provisions of this title, and of their 
 successors, to devote their time and labors, for the term of two years, 
 from the first of May, one thousand eight hundred and forty-nine, to 
 the hearing and determination of the suits transferred from the su- 
 preme court, and for that purpose they, or any two of them, shall 
 hold a general term of the said superior court, of at least two weeks 
 in duration, in 'eseh month of the year except the month of August 
 
 (Section 49 was riepealedby eh. 2, of 1851.) 
 
 § 50, (Added in 1849.) Appeals fix)m the judgments of the supe- 
 rior court in such suits may be taken to the court of appeals, in the 
 same manner as from the judgments of the superior court, in actions 
 originally commenced therein. 
 
 §51. <AddediiD 1849.) The provisions of section twenty-eight of 
 this act shall apply to the said superior court 
 
§§ 52, 53.] COBB OB" FEOCSOCBB, 37 
 
 JPTTUE VT. 
 
 Off the Courts of JvMices of the Peace. 
 
 SicnoN 53. Bepeal of certain eziBting proTlslons. 
 
 63. Jtuisdictioii of these conrts. 
 
 64. JoriedictioiL in civil actions limited. 
 S5. Answer of title to land. 
 
 66. Undertaking^ thereiii. 
 
 G7. Snit before gnstice to be discontinued. Costs, ~ 
 
 68. Proceedings if nndertaking not given. 
 
 69. Tbe same> 
 
 60. New action in supreme conrt; pleadings therein. 
 
 61. Costs of action in supreme court. 
 
 62. Proceedings where several causes of action, and answer of title as 
 
 to one. 
 £3. Socketing justices' judgments, and effect thereof. 
 64. Itules in justices' courts. 
 'Bxnx 1. The pleadings. 
 
 2. Pleadings, how pat in. 
 
 3. Complaint. 
 
 4. Answer. 
 
 6. Pleadings, what to contain. 
 
 6. Demnrrer. 
 
 7. Proceedings in demurrer, 
 
 8. FlainUff to prove his case, if defendant do not appear. 
 
 9. Proceedings in action on account or instrument for the payment of 
 
 money only. 
 
 10. Variance, when disregarded. 
 
 11. Amending pleading^. 
 
 12. Bxecution, when issqable and returnable. 
 
 13. Bxecution on justices' judgment docketed, 
 
 14. Bequiring party to exiilbit nls account. 
 
 16. Certain provisions applicable to these courts. 
 
 § 52. (Being § 45 of 1848.) The provisions contained in sections 
 two, t^iree and fottr of the article of the Revised Statutes, entitled 
 " Of the jurisdiction of justices" conrts," as amended by sections 
 one and two of the act concerning justices' courts, passed May 14» 
 1840, and the provisions contained in sections 59 to 66 of the same 
 artidle, both inclusive^ are repealed, and the provisions of this title 
 substituted in place thereof. But this repeal shall not affect any 
 action heretofore commenced in a court of a justice of the peace. 
 
 1 53. (Being § 46 of 1848.) Justices of the peace shall have civil 
 jurisdiction in the following actions and no other : 
 
 1. An action arising on contract for the recovery of money only, 
 if the sum claimed do not exceed one hundred doUais. 
 
 2. An action for damages for an injury to the person, or to real- 
 or personal property, if the damages claimed do not exceed one 
 hundred dollars. 
 
 4 
 
38 COSB OF PBOCBBUBE. [§ S3. 
 
 3. An action for a penalty not exceeding one hundred dollars, 
 given by statute. 
 
 4 An action commenced by attachment' of property, as now pro- 
 vided by statute ; if the debt or damages claimed do not exceed one 
 hundred dollars. 
 
 5. An action upon a bond conditioned for the payment of money, 
 not exceeding one hundred dollars, though the penalty exceed that 
 stun, the judgment to be given for the stun actually due. Where 
 the payments ai'e to be made by installments an action may be 
 brought for each installment as it shall become due. 
 
 6. An action upon a surety bond taken by them, though the 
 penalty or amount claimed exceed one hundred dollars. 
 
 (Am'd in 1849, 1851, 1860, 1861, 1862 and 1865.) 
 
 § 53. (As am'd in 1849.) Justices of the peace shall have civU juris- 
 diction in the following actions, and no other: 
 
 1. An action arising on contract for the recovery of money only, 
 if the sum claimed do not exceed one hundred dollars. 
 
 2. An action for damages for an injury to the person, or to real 
 T^Toperty, or for .tOfking, detaining or vi^uring peraorvil property, if 
 the damages claimed do not exceed one hundred dollars. 
 
 (Subdivisions 3, 4, 5 and 6 same as in 1848.) 
 
 7. An action on a Judgment rendered in a court of a justice of the 
 peace, or of ajitsUc^s or other inferior court in a city, where such action 
 is twtprohibUed by section seventy-one. 
 
 8. To take amd enter jvdgrnemt on the confession cfa defendmit, where 
 the amount confessed shaU not exceed two hundred and fifty doUars, in 
 the manrm- prescribed by a/Hide eight, title fow, chapter two afpa/rt three 
 of the Jteeised Statutes. 
 
 § 53. (As am'd in 1851.) Same as § 53 as amended in 1849, except 
 that subdivision 3 was amended so as to read as follows : 
 
 3. An action for a penalty not exceeding one hundred dollars. 
 And subdivision 9 was added, reading as follows : 
 
 9. An action for damages for fraud in the sale, purchase or exchange 
 ef personal property, if the damages claimed do not exceed one hurt- 
 dred dollar's. 
 
 % 53. (As am'd in 1860.) Same as § 53 as amended in 1851, except 
 that subdivision 10 was added, reading as follows : 
 
 10. [§ 1.] An action to recover the possession of personal prop- 
 erty claimed, the value of which, as stated in the aflSdavit of the 
 
§ 53,] CODE OF PEOCEDUEE. 39 
 
 plaintiff, his agent or attorney, shall not exceed the svmi of one hun- 
 dred dollars. [§ 3.] The plaintiff' in such action, at the time of 
 issuing the summons, but not afterward, may claim the immediate 
 delivery of such property as hereinafter provided. [§ 3.] Before any 
 process shall be issued in an action to recover the possession of per- 
 sonal property, the plaintiff, his agent or attorney, shall make proof 
 by affidavit, showing: 1. That the plaiutiff is the owner, or entitled 
 to immediate possession, of the property claimed, particularly 
 describing the same. 2. That such property is wrongfully with- 
 held or detained by the defendant. 3. The cause of such detention 
 or withholding thereof, according to the best knowledge, informa- 
 tion and belief of the person making the affidavit. 4. That said per- 
 sonal property has not been taken for any tax, fine or assessment, 
 pursuant to statute, or seized by virtue of an execution or attach- 
 ment against the property of said plaintiff; or if so seized, that it is 
 exempt from such seizure by statute. 5. The actual value of said 
 personal property. [§ 4] On receipt of such affidavit, and an 
 undertaking in writing executed by one or more sufficient sureties, 
 to be approved by the justice of the peace before whom such action 
 is commenced, to the effect that they are bound in double the value 
 of such property as stated in said affidavit for the prosecution of 
 said action, and for the return of said property to the defendant, if 
 return thereof be adjudged, and for the payment to him of 
 such sum as may for any cause be recovered against said plaintiff, 
 the justice shall indorse upon said affidavit a direction to any 
 constable of the county in which said justice shall reside, requiring 
 said constable to take the property described therein from the defend- 
 ant, and keep the same, to be disposed of according to law ; and 
 the said justice shall at the same time issue a summons, directed to 
 the defendant, and requiring him to appear before said justice at a 
 lime and place to be therein specified, and not more than twelve 
 days from the date thereof, to answer the complaint of said 
 plaintiff; and the said summons shall contain a notice to the 
 defendant that in case he shall fail to appear at the time and 
 place therein mentioned, the plaintiff will have judgment for the 
 possession of the property described in said affidavit, with the costs 
 and disbursements of said action. [| 5.] The constable to whom 
 said affidavit, indorsement and summons shall be delivered, shall 
 forthwith take the property described in said affidavit, if he can find 
 the same, and shall keep the same in his custody. He shall there- 
 
40 CODE or PEOCKDURB. [§53' 
 
 upon, without delay, serve upob said defendant a copy of stich 
 affidavit, notice and summons, by delivering the same to him per- 
 sonally, if he can be found in said county;' if not found, to the' 
 agent of the defendant in whose possession said property shall be 
 found ; if neither can be found,' by leaving such copies at the last or 
 Usual place of abode of the defendant^ vrith some person of suitable : 
 age and discretion. And shall forthwith make a return of his pro- 
 ceedings thereon, and the manner of serving the same, to the justice 
 who issued the said summons. {§ 6.] The defendant may at any 
 time after such service, and at least two days before the return day : 
 of said summons, serve upon plaintiff, or upon the constable who ■ 
 made such service, a notice in writing that he excepts to the sure- 
 ties in said bond or undertaking ; and if he fail to do so, all objec- 
 tions thereto shall be waived. If such notice be served, the sureties 
 shall justify, or the plaintiff give new sureties on the return day of 
 said summons, who shall then appear and justify, or said justice 
 shall order said property delivered to defendant, and shall also ren- 
 der judgment for defendant's costs and disbursements. [§ 7.] At 
 any time before the return day of said summons) the said defendant 
 may, if he has not excepted to plaintiff's sureties, require the return 
 of said property to him, upon giving to the plaintiff, and filing same 
 with the justice, a written undertaking, with one or more sureti^, 
 who shall justify before said justice on the return day of said sum- 
 mons, to the effect that they are bound in double the value of said 
 property, as stated in plaintiff's affidavit for the delivery thereof to 
 said plaintiff, if such delivery be adjudged, and for the payment to 
 him of such' sum as may for any cause be recovered against said 
 defendant ; and if such return be not required before the return day : 
 6i said summons, the property shall be delivered to said plaintiff. 
 [§ 8.] The qualification of sureties, and their justification under this 
 act, shall be the same as provided in sections one hundred and nine- 
 ty-four and one hundred and ninety-five of the Codej in respect to 
 bail Oii arrest in the supreme court. [§ 9.] Sections two hundred 
 and fourteen, two hundred and fifteen and two htmdredand sixteen 
 of the Code shall apply to proceedings and actions brought under 
 this act, substituting the word "constable" for the word "sheriff" 
 whenever it occurs in either of said secticms. [§ 10.] The actions so 
 commenced shall be tried in all respects as other actions' are tried in 
 justice courts. [§ 11.] In all actions for the recovery of the posses' 
 non of personal property, as herein provided, if the properly shall 
 
§ 53.] CODE OF FBOCXDUBB. 41 
 
 not have been delivered to plaintiff, or the defendant by answer shall 
 claim A return thereof, the justice or jury shall assess the value 
 thereof, and the injury sustained by the prevailing party, by reason 
 of the takii^ or detention thereoi^ and the justice shall render judg- 
 ment accordingly, mth costs and disbursements. [§ 13.] If it shall, 
 appear by the return of a constable that he had taken the property 
 described in the plaintiff's affidavit, and that defendant cannot be 
 foundrand has no last place of abode in said county, or that no 
 agent of defendant could be found on whom service could be made, 
 the justice may prpceed with the cause ia the same, manner as 
 though there had been a petBonal service. [§ 13.] Fox the endorse- 
 ment on said affidavit, the justice shall receive an additional fee oi 
 twenty-five cents, which shall be included in the costs of .the, suit. 
 
 § 53. tAs am'd in 1861:) Justices of the x>c^ce shall have civil 
 jtirisdiction in the following actions and no others ; exeyiiing as in 
 the lecond section it is provided: 
 
 1. In lustums arising on contracts for the recovery of money only, 
 if the sum claimed does not exceed tieo hundred dollars. 
 
 2. An action for damages for an injury to the person, or real 
 property, or for takingj detaining or injuring pergontd property if 
 the damages claimed do not exceed tieo hundred dollars. 
 
 3. An action for a penalty not exceeding too hundred dollars. 
 
 4 An action commenced by attachment of property, as now pro- 
 vided by statute, if the debt or damages claimed do not exceed tieo 
 hundred dollars. 
 
 5. An action upon bond conditioned for the payment of money, 
 not exceeding turn hundred dollars ; though the penalty exceed that 
 sum, the judgment to be given for the sum actually due. Where 
 the payments are to be made by installments, an action may be 
 brought for each installment as it becomes due. 
 
 6. An action upon a surety bond taken by them, though the 
 penalty or amount claimed exceed two hundred dollars. 
 
 7. An action upon a judgment rendered in a court of justice of 
 the peace, or by a justice or other inferior court in a city, where 
 inch action is not prohibited by section seventy-one. 
 
 8. To take and enter judgment on the confession of a defendant, 
 where the amount confessed shall not exceed five Jiundred dollars, 
 in the manner prescribed by article eight, title four, chapter two, of 
 part three of the Revised Staltutes. 
 
 4* 
 
42 CODE OF PEOCBDUEB. [f 53. 
 
 9. An action for damages for fraud, in the sale, purchase or ex- 
 change of personal property, if the damages claimed do not exceed 
 two hundred dollars. 
 
 (For suh. 10, which was not amended, see S 53, as am'd in 1860, 
 
 te.) 
 
 § 53. (As am'd in 1863.) Same as §53 as amended in 1861, excepting 
 in sub. 3, which was amended so as to read as follows : 
 
 3. An action for damages for injury to rights pertmrmig to the per- 
 son, or to personai or real property, if the damages claimed do not 
 exceed two hundred dollars. 
 
 (For sub. 10, which was not amended, see § 53, as am'd 1860, ante) 
 
 § 53. (As am'd in 1865.) Justices of the peace shall have civH, 
 jurisdiction in the following actions and no other, excepting as in 
 the second section it is provided : 
 
 1. In actions arising on contracts for the recovery of money only, 
 it the sum claimed d.oes not exceed two hundred dollars. 
 
 2. An action for damages for injury to rights pertaining to the 
 person, or to personal or real property, if the damages claimed do 
 not exceed two hundred dollars. 
 
 . 3. An action for a penalty not exceeding two hundred dollars. 
 
 4 An action commenced by attachment of property, as now pro- 
 vided by statute, if the debt or damages claimed do not exceed two 
 hundred dollars. 
 
 5. An action upon bond conditioned for the payment of money, 
 not exceeding two hundred dollars ; though the penalty exceed that 
 sum, the judgment to be given for the sum actually due. Where 
 the payments are to be made by installments an action may be 
 brought for each installment as it becomes due. 
 
 Q. An action upon a sinrety bond taken by them, though the 
 penalty or amount claimed exceed two hundred dollars. 
 
 7. An action upon a judgment rendered in a court of justice of 
 the peace, or by a justice or other inferior court in a city, where 
 such action is not prohibited by section seventy-one. 
 
 8. To take and enter judgment, on the confession of a defendant, 
 where the amount confessed shall not exceed five hundred dollars, 
 in the manner prescribed by article eight, title four, chapter two of 
 part three of the Eevised Statutes. 
 
 9. An action for damages for fraud in the sale, purchase or 
 exchange of personal pr&perty, if the damages claimed do not 
 exceed two hundred dollars. 
 
§ 54.] CODE OP PEOCBaOTTEE. 43 
 
 (§ 10 of sub. 10 was amended so as to read as follows : " [g 10.] 
 The actions so commenced shall be tried in all respects as other 
 actions are tried in justice comts. The judgment for the pUMrUiffmay 
 iefor the possession, or for the recotery of the possession, or the taMe 
 fhereof, m case a deHeery cannot he Tiad^and of images for the 
 detention. If the property heme been ddivered to the plaintiff, and the 
 defendamt cimm a return thereof , judgment for the defendant may be 
 for a return of theproperty, or the milue thereof, in case a return cannot 
 be had, and damages for talcing and wilhholdiTig the same. An execu- 
 tion shaU ie issued thereon, and ^ the judgment be for the ddiwry of the 
 possession of personal property, it shaU require the officer to deliwr the 
 possession of the same, parHeuJUvrly describing it, to the pa/rty entitled 
 thereto, and may, at the same time, require the officer to satisfy amy costs 
 or damages recotered by the same judgmeTVt out of the persorud property 
 of the party against whom it was rendered, to be specifed therein, if a 
 deHwry thereof cannot be h^. The execution shaU be retumabU within 
 sixty days after its receipt by the officer, to the justice who issued the same.' 
 Otherwise sub. 10 was not amended, and stands as in 1860. 
 
 .§ 54 (Being § 47 of 1848.) But no justice of the peace shall have 
 cognizance of an action, 
 
 1. In which the people of this state are a party, excepting for 
 penalties not exceeding fifty dollars. 
 
 2. Nor where the title to real property shaU come in question, as 
 provided by sections 48 to 55, both inclusive. 
 
 3. Nor of an action for an assault, battery, false, imprisonment, 
 libel, slander, malicious prosecution, criminal conversation, or 
 seduction. 
 
 4 Nor of a matter of account, where the sum total of the accounts 
 of both parties, proved to the satisfaction of the justice, shall exceed 
 four hundred dollars. 
 
 5. Nor of an action against an executor or administrator, as such. 
 
 (Am'd in 1849.) 
 
 I 54. (As am'd in 1849.) But no justice of the peace shall have, 
 cognizance of a civU action, 
 
 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 shall come in question, as 
 provided by sections 55 to 63, both inclusive. 
 
44 CODE OF PEOOEDTJEE. [§§ 55, 56. 
 
 3. KOr of a evaU action for an assault, battery, false imprisonment, 
 libel, slander, malicious prosecution, criminal convCTsation or seduc- 
 tion. 
 
 4. Nor of a matter of account, where the sum total of the accounts 
 of both parties, proved t(yhe satisfaction of the justice, shall exceed 
 fbur hundred dollara. 
 
 5. Hor of an action against an executor or administrator, as such. 
 
 - § 55. (Being § 48 of 1848.) In every action brought in a court of 
 justice of the peace, where the title to real property shall come in 
 question, the defendant may^ either with or without other matter 
 of defense, set forth in his answer any matter showing that such 
 title will come in question. Such answer shaU be in writing, signed 
 by the defendant or his attorney, and delivered to the justice. The 
 justice shall thereupon countersign the same, and deliver it to the 
 plaintiff. 
 
 § 56. (Being § 49 of 1848.) At the time of answering, the defend- 
 ant shall deliver to the justice a written undertaking, executed by 
 at least one sufficient surety, and approved by the justice, to the 
 effect, ttiat if the plaintiff shall, within thirty days thereafter, deposit 
 with the justice a summons and complaint in an action in the 
 supreme court for the same cause, the defendant will, within ten 
 days after such deposit, give an admission in writing pf the service 
 thereof. 
 
 Where the defendant was arrested in the action before the justice 
 the undertaking shall further provide, that he will at aU times render 
 himseU amenable to the process of the court, during the pendency 
 - of the action, and to such as may be issued to enforce the judg- 
 ment therein. In case of failure to comply with the imdertaking, 
 the surety^ shall be liable, not exceeding one hundred dollars. 
 (Am'd in 1851 and 1858.) 
 
 § 56. (As am'd in 1851.) At the time of answering, the defendant 
 shall deliver to the justice a written undertaking, executed by at 
 least one sufficient surety, and approved by the justice, to the effect 
 that if the plaintiff shall, within thirty days thereafter, deposit 
 with the justice a summons and complaint in an action in the eounly 
 court, for the same cause, the defendant will, within ten days after 
 such deposit, give an admission in writing of the service thereof. 
 
§§ 66, 57.] CODE OF PEOCBDTJEE. 45 
 
 "Where the defendant was arrested in the action before the jnstieej- 
 the undertaking shall fnither proyide, that he -will at all-times render 
 himseU 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 case of failure to comply vrith the undertaking, the 
 surety shall be liable, not exceeding one hundred dollars., 
 
 I 56. (As am'd in 1858.) At the time of answering, the defendant 
 shall deliver to the justice a written undertaking, executed by at 
 least one sufficient surety, smd approved by the justice, to the effect, 
 that if the plaintiff shall, within twenty days thereafter, deposit 
 with the justice a summons and complaint, m an action in the 
 supreme court for the same cause, the defendant will, within taertt^ 
 days after such deposit, g^ve an admission in writing of the service 
 thereof. 
 
 Where the defendant was arrested in the action before the justice, 
 the undertaking shall further 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 case of failure to comply with the undertaking, the 
 surety shall be liable, not exceeding one hundred dollars. 
 
 § 57. (Being § 50 of 1848.) Upon the delivery of the undertaking 
 to the justice, the action before him shall be discontinued, and each 
 party sliall pay his own costs. The costs so paid by either party 
 shall ~be allowed to him, if he recover costs in the action to be 
 brought for the same cause in the supreme court. If no such action 
 be brought within thirty days after the delivery of the undertaking, 
 the defendant's costs before the justice may be recovered of the 
 plaintiff. 
 
 (Am'd in 1851 and 1858.) 
 
 § 57. (As am'd in 1851.) Upon the delivery of the undertaking to the 
 justice, the action before him shall be discontinued, and each party 
 shall pay his own costs. The costs so paid by either party shall be 
 allowed to him, if he recover costs in the action to be brought for 
 the same cause in the cmintg courts. If no such action be brought 
 within thirty days after the delivery of the undertaking, the defend- 
 ant's costs before the justice may be recovered of the plaintiff. 
 
 § 57. (As am'd in 1858.) Upon the delivery of the imdertaldng to 
 the justice, the action before him shall be discontinued; and each 
 
46 CODE OF PEOCEDUEE. [§§ 58-60. 
 
 parly shall pay his own costs. The costs so paid by either party 
 shall be allowed to him, if he recover costs in the action to he 
 brought for the same cause in the mpreme court. If no such action 
 be brought withia thirty days after the delivery of the undertaking, 
 the defendant's costs before the justice may be recovered of the 
 plaintiff. 
 
 § 58. (Being § 51 of 1848.) K the undertaking be not delivered to 
 the justice, he shall have jurisdiction of the cause, and shall pro- 
 ceed therein ; and the defendant shall be precluded, in his defense, 
 from drawing the title in question. 
 
 § 59. (Being § 52 <Jf 1848.) 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 shall be disputed by the defendant, the 
 justice shall dismiss the action, and the plaintiff shall pay the costs. 
 
 (Am'd in 1849.) 
 
 § 59. (As am'd in 1849.) 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 shall be disputed by the defendant, the 
 justice shall dismiss the action, and render judgment against the 
 plaintiff fm" the costs. 
 
 § 60. (Being § 53 of 1848.) "When a suit before a justice shall be 
 discontinued by the delivery of an answer and undertaking, as 
 provided in sections forty-eight, forty-nine and fifty, the plaintiff 
 may prosecute an action for the same cause, in the supreme court, 
 and shall complain for the same cause of action only on which he 
 relied before the justice ; and the answer of the defendant shall be 
 the same which he made before the justice. 
 
 (Am'd m 1849, 1851 and 1858.) 
 
 § 60. (As am'd in 1849.) When a suit before a justice shall be dis- 
 continued by the delivery of an answer and undertaking, as pro- 
 vided in sections ffty-fine, fifty-six and fifty-seten, the plaintiff may 
 prosecute an action for the same cause, in the supreme court, and 
 shall complain for the same cause of action only on which he relied 
 before the justice ; and the answer of the defendant shall be the 
 same which he made before the justice. 
 
 § 60. (As am'd in 1851.) When a suit before a justice shall be dis- 
 continued by the delivery of an answer and undertaking, as pro- 
 
§§ 60-62.] CODE OF PEOCEDUEB. 4V 
 
 Tided in sections fifty-five, fifty-six and fifty-seven, the plaintiff may 
 prosecute an action for the same cause, in the cowniy court, and shall 
 complain for the same cause of action only on which he relied 
 before the Justice ; and the answer of the defendant shall ^ up tJie 
 same dtfense mdy which he made before the justice. 
 
 § 60. (As am'd in 1858.) When a suit before a justice shall be dis- 
 continued by the delivery of an answer and undertaking, as pro- 
 vided hi sections fifty-five, fifty-six and fifty-seven, the plaintiff may 
 prosecute an action for the same cause, in the gwpreme court, and 
 shall complain for the same cause of action only on which he relied 
 before the justice ; and the answer of the defendant shall set up the 
 same defense only, which he made before the justice. 
 
 § 61. (Being § 54 of 1848.) If the judgment in the supreme court 
 be for the plaintiff, he shall recover costs ; if it be for the defendant, 
 he shall recover costs, except that upon a verdict he shall pay costs 
 to the plaintiff, unless the judge certify that the title to resd prop- 
 erty came in question on the trial. 
 
 (Am'd in 1851 and 1858.) 
 
 § 61. (As am'd in 1851.) If the judgment in the county court be for 
 the plaintiff, he shall recover costs ; if it be for the defendant, he 
 shall recover costs, except that upon a verdict he shall pay costs to 
 the plaintiff, unless the judge certify that the tifle to real property 
 came in question on the trial. 
 
 § 61. (As am'd in 1858.) If the judgment in the supreme court be 
 for the plaintiff, he shall recover 'costs; if it be for the defendant, 
 he shall recover costs, except that upon a verdict he shall pay costs 
 to the plaintiff, unless the judge certify that the title to real property 
 came in question on the trial. 
 
 § 63. (Being § 55 of 1848.) If, in an action before a justice, the 
 plaintiff have several causes of action, to one of which the defense 
 of title to real property shaU be interposed, and as to such cause, 
 the defendant shall answer and deliver an undertaking, as provided 
 in sections forty-eight and forty-nine, the justice shall discontinue 
 the proceedings as to that cause, and the plaintiff may commence 
 another action in the supreme court therefor. As to the other causes 
 of action, the justice may continue his proceedings. 
 
 (Am'd m 1849, 1851, 1858 and 1860.) 
 
48 CODB OP PEOCBDtTEE. [§62. 
 
 § 63. "(As am'd & 1849;y If, 5n ftn tUitioli before a jiiSitifce, the' 
 plaintiff have several causes of actionj'to one of which thte defense ' 
 of title to real property shall be interposed, and as to such a cause ' 
 the defendant ishall answer and deHver an undertaking, as provided ' 
 in sections ffly-fiiie&vA fifly-»ia), the justice shall discontinue the* 
 proceedings as to . that cause, and the playitiff may commence 
 another action therefor in the supreme court. As to the other 
 causes of action, the justice may continue his proceedings. , 
 
 § 63. (As am'd in 1851.) If, in an action before a justice, the plaintiff 
 have several causes of action, to one of which the defense of title 
 to real property shall be interposed, and' as to such cause the 
 defendant shall answer and deliver an nndertaking, as provided in 
 sections flfty-flve.and fifty-six,, the justice shall discontinue the 
 proceedings as to that cause, and the plaintiff may commence 
 another action therefor in the eoum/ty court. As to the other causes 
 of action, the justice may continue his proceedings. 
 
 § 63. (As am'd in 1858.) If, in, an action before a justice, the 
 plaintiff have several causes of action, to one of which the defense 
 of title to real property shall be interposed, and as to such cause 
 the defendant shall answer and deliver an undertaking, as provided 
 in sections flfty-flve and fifty-six, the justice shall discontinue the 
 proceedings as to that cause, and the plaintiff may commence 
 {mother action therefor in the supreme court. As to the other causes 
 of action the justice may continue his proceedings. 
 
 § 62. (As am'd hi 1860.) If, in an action before a justice, the 
 plaintiff have several causes of action, to one of which the defense 
 of title to r^l property shall be interposed, and as to such cause 
 the defendant shall answer and deliver an undertaking, as provided 
 in sections fifty-five and flfty-six, the justice shall discontinue the 
 proceedings as to that cause, and the plaintiff may conmience 
 another action therefor in the supreme court As to the other causes 
 of action, the justice may continue his proceedings. AU acMons 
 pending in any county ccurt, on the seventh day of May, eighteen 
 hummed. and ffty-dght, in aU cases in which a plea (f Utle was 
 interposed in actions originaMy commenced in a justice's court, a/re 
 iiramfe/ned to and tested in the supreme courts with fuU power and 
 furisdiction to proceed therein as commenced in said' supreme court, 
 l/y reason of a pled (f title having been interposed in a justice's court 
 in like cases. 
 
§§ 63j 64.] CODE OF PBOCEBUfiB. 49 
 
 § 63. (Being § 56 of 1848;) A justice of the peace, on the demand 
 of a parly in wliose favor he shall have rendered a judgment, shall 
 ^ye, a transcript thereof, 'Arhich may be filed and docketed in the 
 office of the clerk of the counly where the judgment was rendered. 
 The time dE the receipt of .the transcript by the clerk shall be noted 
 thereon and entered in the docket ; and, from that time, the judg^ 
 ment shall have the same effect as a lien, and be enforced in the 
 same manner as a jud^nent of a county court A certified tran- 
 script of such judgment may be filed and docketed in the clerk's 
 office of any other county, and with the like effect, in every respect, as 
 in the county where the judgment was rendeired ; except that it shaQ 
 be a Ben only from the tim6 of filing and docketing the transcript 
 
 (Am'd in 1849.) 
 
 § 63. (As am'd in 1849.) A justice of the peace, on the demand of 
 a party in whose favor he shall have rendered a judgment, shall 
 give a transcript thereof, whiph may be filed and docketed in the 
 office of the clerk of the county where the judgment was rendered. 
 The time of the receipt of the transcript by the clerk shall be noted 
 thereon and entered in the docket ; and, from that time the judg- 
 ment shall 66 a judgmefnt of the county court. A certified transcript 
 of such judgment may be filed and docketed in the clerk's office of 
 any other county, and with the like effect, in eveiy respect, as in 
 the county where the judgment was rendered ; except that it shall be 
 a lien only from the time of filing and docketing the transcript Bui 
 no such judgment for a less sum tfum twenty-Jm doUa/rs, exclusive of costs, 
 hereafter docketed, shcM be a lien, upon, or enforced against, real property. 
 
 % 64 (Being § 57 of 1848.) The provisions of this act, respecting 
 forms of action, pleadings and the rules of evidence, and the times 
 of commencing actions, shall apply to the courts of justices of the 
 peace, except that the pleadings may be oral, and made at the same 
 time as if this act had not been passed. 
 
 (Am'd in 1849, 1851, 1852, 1860, 1867, 1869 and 1870.) 
 
 § 64 (As am'd in 1849.) The following rules shall be observed 
 in the courts of justices of the peace : 
 
 1. The pleadings in these courts are : 
 
 1. The complaint by the plaintiff. 
 
 2. The answer by the defendant. 
 
 2. The pleadings may be 6ral or in writing ; if oral, the substance 
 of them shall be entered by the justice in his docket ; If in writing, 
 
 5 
 
50 CODE OP PEOCEDUEE. [§ 64. 
 
 thejr shall be filed by Mm, and a reference to fhem shall be made ia 
 the docket. 
 
 ' 3. The complaint shall state, in a plain and direct manner, the 
 facts constituting the cause of action. 
 
 4 The answer may contain a denial of the complaint, or of any 
 part thereof, and also notice in a plain and direct manner of any 
 facts constituting a defence. 
 
 5. Pleadings 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. 
 
 6. Either party may demur to a pleading of his adversary, or any 
 part thereof, when it is not sufficiently explicit to enable him to 
 understand it, or it contains no cause of action or defense, although 
 it be taken as true. 
 
 7. If the court deem the objection well founded, it shall order 
 the pleading to be amended, and if the party refuse to amend, the 
 defective pleadings shall be disregarded. 
 
 8. In case a defendant does not appear and answer, the plaintiff 
 cannot recover, without proving his case. 
 
 9. In an action or defense, founded upon an account' or an instru- 
 ment for the payment of money only, it shall be sufficient for a 
 party to deliver the account or instrument to the court, and to 
 state that there is due to him thereon from the adverse party a 
 specified sum, which he claims to recover or set off. 
 
 10. A variance between the proof on the trial, and the allegations 
 in a pleading, shall be disregarded as immaterial, unless the court 
 shall be satisfied that the adverse party has been misled to his 
 prejudice thereby. 
 
 11. The pleadings may be amended at any time before the trial, 
 or during the trial, or upon appeal, when by such amendment sub- 
 stantial justice will be promoted. If the amendment be made 
 after the joining of the issue, and it be made to appear to the satis- 
 faction of the court, by oath, that an adjournment is necessary to 
 the adverse party in consequence of such amendment, an adjourn- 
 ment shall be granted. The court may also, in its discretion 
 require as a condition of an amendment the payment of -costs, to 
 the adverse party, to be fixed byHhe court, but no amendment shall 
 be allowed after a witness is swom on a trial, when an adjournment 
 thereby will be made necessary. 
 
§ 64.] CODE OF PEOCBDUEK. 51 
 
 12. Execution may be issued on a judgment -heretofore or 
 hereafter rendered in a justice's court, at any time ■within five years 
 after the rendition thereof, and shall be returnable sixty days from 
 the date of the same. 
 
 13. If the judgment be docketed with the county clerk, the execu- 
 tion shall be issued by him to the sheriff of the county, and have the 
 same effect, and be executed in the same manner, as other executions 
 and judgments of the county court, except as provided in section 63. 
 
 14 The court may, at the 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 default preclude 
 him from giving evidence of such parts thereof as shall not have 
 been so exhibited or stated. 
 
 15. The provisions of this act, respecting forms of action, parties 
 to actions, the rules of evidence and the times of commencing actions, 
 shall apply to these courts. 
 
 § 64. (As am'd in 1851.) Same as section 64, as amended in 1849, 
 excepting in sub. 11, which was amended so as to read as follows : 
 
 " 11. The pleadings may be amended at any time before the trial, 
 or during the trial, or upon appeal, when by such amendment sub- 
 stantial justice will be promoted. If the amendment be made after 
 the joining of the issue, and it be made to appear to the satisfac- 
 tion of the court, by oath, that an adjournment is necessary to the 
 adverse party in consequence of such amendment, an adjournment 
 hh&Tl be granted. The court may also, in its discretion, require, as 
 a condition of an amendment, the payment of costs to the sidveise 
 party." 
 
 § 64. (As am'd in 1853.) Same as § 64, as amended in 1851, ex- 
 septing in sub. 15, which was amended so as to read as follows : 
 
 " 15. The provisions of this act respecting forms of action, par- 
 ties to actions, the rules of evidence, the times of commencing 
 actions, and the aermce of process upon, corporations, shall apply to 
 these courts." 
 
 § 64. (As am'd in 1860.) Same as § 64, as amended in 1853, ex- 
 cepting that the words following were added at the end thereof : 
 
 " The defendant may, on the return of process, and before an- 
 swering, make an offer in writing to allow judgment to be taken 
 
52 CODE OP PEOCBDUEB, [§ 64. 
 
 agamst him for an amount to be stated in such offer, with costs. 
 The plaintiff shall thereupon, and before any oVtier proceedings shall 
 be had in the action, determine whether, he will accept or reject 
 such offer. If he accept the offer, and give notice thereof in writing, 
 the justice shall file the offer and the acceptance thereof, and render 
 judgment accordingly. If notice of acceptance be not ^yen, 
 and if the plaintiff fail to obtain judgment for a greater amount, 
 exclusive of costs, than has been specified in the offer, he shall not 
 recover costs, but shall pay to the defendant his costs accruing sub- 
 sequent to the offer." 
 
 § 64 (As am'd in 1867.) Same as § 64, as amended in 1860, cxt 
 cepting in sub. 4, which was amended so as to read as follows : 
 
 " 4 The answer may contain a denial of the complaint, or of any 
 part thereof, and also notice in a plain and direct manner of any 
 facts constituting a defence or counWdam." 
 
 § 64 (As am'd in 1869.) Same as § 64, as amended in 1867, ex- 
 cepting in sub. 13, which was amended so as to read as follows : 
 
 " 13. If the judgment be docketed with, the county clerk, the exe- 
 cution ma;/ be issued in the sa/me momner to the sheriff of the county, 
 and have the same effect, and be executed in the same manner, as 
 Other executions and judgments of the cotmty court, except as pro- 
 vided in section 63." 
 
 § 64. (As am'd in 1870.) The following rules shall be observed 
 in the courts of justices of the peace: 
 
 1. The pleadings in these courts are : 
 1. The complaint by the plaintiff. 
 3. The answer by the defendant. 
 
 3. The pleadings may be oral, or in writing ; if oral, the substance 
 of them shall be entered by the justice in his docket ; it in writing, 
 they shall' be filed by him, and a reference to them shall be made 
 in the docket. 
 
 3. The complaint shall state, in a plain and direct manriei', the 
 facts constituting the cause of action. 
 
 4 The answer may contain a denial of the complaint, or of any 
 part thereof, and also notice in a plain and direct manner of any 
 facts constituting a defence or counterclaim. 
 
 5. Pleadings 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. 
 
§64.] CODE OP PEOCEDUEE. 53 
 
 6. Either party may demur to a pleading of his adversary, or any 
 part thereof, when it is not sufficiently explicit to enable Tiim to 
 understand it, or it contains no cause of action or defense, although 
 it be taken as true. 
 
 7. If the court deem the objection weU founded, it shall order the 
 pleading to be amended, and if the party refuse to amend, the de- 
 fective pleading shall be disregarded. 
 
 8. In case a defendant does not appear and answer, the plaintifi 
 cannot recover, without proving his case. 
 
 9. In an action or defense founded upon an account, or an instru- 
 ment for the payment of money only, it shaU be sufficient for a 
 party to deliver the account or instrument to the court, and to state 
 that there is due to him thereon, from the adverse party, a specified 
 sum, which he claims to recover or set off. 
 
 10. A variance between the proof on the trial and the allegations 
 in a pleading shall be disregarded as immaterial, unless the court 
 shall be satisfied that the adverse party has been misled to his 
 prejudice thereby. 
 
 11. The pleadings may be amended at any time before the trial, 
 or during the trial, or upon appeal, when, by such amendment, sub- 
 stantial justice will be promoted. If the amendment be made after 
 the joining of the issue, and it be made to appear to the satisfaction 
 of the couit, by oath, that an adjournment is necessary to the ad- 
 verse party in consequence of such amendment, an adjournment 
 shall be granted. The court may also, in its discretion, require, as 
 a condition of an amendment, the payment of costs to the adverse 
 party. 
 
 13. Execution may be issued on a judgment heretofore or here- 
 after rendered in a justice's court, at any time within five years 
 after the rendition thereof, and shall be returnable sixty days fi-om 
 the date of the same. ^ 
 
 13. If the judgment be docketed with the county clerk, the exe- 
 cution sTiaU Se issued by him to the sheriff of the county, and have 
 the same effect, and be executed in the same manner as other exe- 
 cutions and judgments of the county court, except as provided in 
 section 63. 
 
 14. The court may, at the 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 
 
 5* 
 
54 CODE OP PEOCBDTJEE. [§ 65, 
 
 may be in his power, and in case of his default preclude him from 
 giving evidence of such parts thereof as shall not have been so 
 exhibited or stated. 
 
 15. The provisions (rf this act, respecting forms of action, par- 
 ties to actions, the rules of evidence, the times of commencing ac- 
 tions, and the service of process upon corporations, shall apply to 
 these courts. 
 
 The defendant may, on the return of process, and before answer 
 ing, make an offer in writing to allow judgment to be taken against 
 him for an amount to be stated in such offer, with costs. The 
 plaintiff shall thereupon, and before any other proceedings shaU be 
 had in the action, determine whether he will accept or reject such 
 offer. If he accept the offer, and give notice thereof in writing, the 
 justice shall file the offer and the acceptance thereof, and render 
 judgment accordingly. If notice of acceptance be not given, and 
 if the plaintiff fail to obtain judgment for a greater amount, exclu- 
 sive of costs, than has been specified in the offer, he shall not recover 
 costs, but shall pay to the defendant his costs accruing subsequent 
 to the offer. 
 
 TITLE VX 
 CHAPTER I. 
 
 TM Manne CovH of the (My of New York. 
 Section 65. Its jnrisdictioii. t 
 
 § 65. (Being § 58 of 1848.) The marine court of the city of New 
 York shall 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 provided by sections 46 and 47. 
 
 3. In an action upon the charter or a by-law of the corporation 
 of the city of New York, where the penalty or forfeiture shall 
 exceed twenty-five dollars, and not exceed one hundred dollars. 
 
 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. 
 
§§ 65, 66.] CODE OP PEOCBDUEB. 55 
 
 4. In on action by or against any person belonging to or on board 
 of a vessel in the mercbant service, for an assault and battery or 
 false imprisonment, committed on board sucb vessel 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 hundred dollars. But nothing in this or the 
 last preceding subdivision of this section shall give the court power 
 to proceed in any of the cases therein referred to, as a court of 
 admiralty or maritime jurisdiction. 
 
 (Am'dinl849.) 
 
 § 65. (As am'd in 1849.)* Same as in 1848, except in sub. 1, 
 which was amended so as to read as follows : 
 
 1. In actions similar to those in which courts of justices of the 
 peace have jurisdiction, as provided by sections 53 and 54. 
 
 CHAPTEE n, 
 
 TTie Jusliwi OowrU in the (My of New York. 
 Section 66. Tbeii jmisdicUon. 
 
 § 66. (Being § 59 of 1848.) f The assistant justices' courts in the 
 city of New York shall have jurisdiction in the following cases and 
 no other. 
 
 •For further legislation as to the marine conrts of New York city, and their 
 jntisdlction, see 
 
 Laws of 1849, ch. 144. Laws of 1862, ch. 484. 
 
 " 1852, ch. 389. " 1865, ch. 436. 
 
 " 1853, ch. 529. " 1866, ch. 701. 
 
 " 1853 ch. 617. " 1867, ch. 784. 
 
 " 1857, ch. 295. " 1870, ch. 582. 
 1858, ch. 334. 
 t For further legislation in regard to justices' courts in the city of New York, 
 and their jurisdiction, see 
 
 Laws of 1848, ch. 153. Laws of 1862, ch. 389. 
 
 " 1852, ch. 324. " 1862, ch. 484. 
 
 " 1854, ch. 66. " 1864, ch. 308. 
 
 " 1855, ch. 293. " 1866, ch. 758. 
 
 1857, ch. 844. " 1869, ch. 410. 
 " 1858, ch. 334. 
 1860, ch. 300. 
 By ch. 324 of 1852, their name is changed to "District Courts in the City of 
 New York. 
 
56 CODE or PROCEDTJEI!. [§ '66. 
 
 1. In i9.ctions similar to those in 'Which justices of the peace have 
 jiirisdiction, as provided by sections 46 and 47; such juiisdiction) * 
 however, to be limited to cases where the sum due or claimed, or the ■ 
 judgment fconfessed, shaU not exceed fifty dollars. 
 
 S. In an action upon the dharter or a by-laCw of the corporation ' 
 of the city of New York, where the penalty or forfeiture shall not 
 exceed fifty dollars. 
 
 (Am'd in 1849 and 1870.) 
 
 § 66. (As am'd in 1849.) The assistant justices' courts in the ci^ of 
 New York ahaU hereafter legtylM the justice^ eowrts of tTie dt^ cf New 
 York, amd shall have jurisdiction in the following cases : 
 
 1. In actions similar to those in which justices of the peace have 
 jurisdiction, as provided Jbysecizojw 53 and 54. 
 
 3. In an action upon thef charter or a by-law of the corporation* 
 of the city of New York, where the penalty or forfeiture shall not 
 exceed <me hunS/red dollars. 
 
 § 66. (As am'd in 1870.) The district courts of the city of New 
 York shall have such jurisdiOtion as is provided by special statutes ; 
 and proceedings, under article two of title ten of chapter eight of 
 part three of the revised statutes, may be had before any justice 
 of such courts, without regard to the district in which the premises 
 arc situated; and the affidavits used in such proceedings may be; 
 taken before any officer authorized by law to take affidavits. And 
 the justices of the district courts of the city of New York are hereby 
 respectively authorized to appoint a stenographer in their several 
 courts, whose duty it shall be to take fiill stenographic notes of all 
 proceedings in trials had therein ; he shall hold his office during the 
 pleasure of the jiistice of the court, and shall receive a salary of two 
 thousand dollars per annum, out of the city treasury. The clerks 
 of the said district courts shall coUect, in all cases in which a trial 
 is had, the sum of one dollar, in addition to the other fees author- 
 ized by law, and shall pay the same into the city treasury, in like 
 manner with other fees collected by them. 
 
§§ 61, 68.] CODE OF PEOCEDUEE, 57 
 
 CHAPTER HL 
 
 TJie JugHcei Oourta of Oitiea. 
 
 Sbction 67. Their jorisdiction. 
 
 § 67. (Being § 60 of 1848.) The municipal court of the city of 
 Brooklyn, and the justices' courts of the cities of Albany, Troy and 
 Hudson, respectively, shall 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 provided by sections 46 and 47. 
 
 2. In an action upon the charter or by-laws of the corporations of 
 their cities respectively, where the penalty or forfeiture shall not 
 exceed one hundred dollars. 
 
 (Am'd in 1849.) 
 
 § 67. (As am'd in 1849.) The justices' courts of dtiei shall have 
 jurisdiction iii the following cases, and no other : 
 
 1. In actions similar to those in which justices of the peace have 
 jurisdiction, as provided by seedons 53 and 54. 
 
 3. In an action upon the charter or by-laws of the corporations 
 •f their respective cities, where the penalty or forfeiture shall not 
 exceed one hundred dollars. 
 
 CHAPTER IV. 
 
 Oenerai Promions. 
 
 Section 68. Sections 55 to 64 applied to the courts, embraced in thlB title. 
 
 §68. (Being § 61 of 1848.) The provisions of sections 48 to 57, 
 both inclusive, relating to forms of action, to pleadings, to the times 
 of commencing actions, to the rules of evidence, to filing and dock- 
 eting transcripts of judgments, to their eflfect, and the mode of 
 enforcing them, and to proceedings where title to real property 
 shall come in question, shall apply to the courts embraced in this tifle ; 
 except that, after the discontinuance 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 judgment, 
 
58 CODE OF PEOCBDUEB. [§ 68. 
 
 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 a judgment of the coiirt of common pleas for the 
 city and county of New York. 
 (Am'd in 1849 and 1851.) 
 
 § 68. (As am'd in 1849.) The provisions of sections 55 to 64, both 
 inclusive, relating to forms of action, to pleadings, to the times 
 of commencing actions, to the rules of evidence, to filing and 
 docketing transcripts of judgments, to their effect, and the mode of 
 enforcing them, and to proceedings where title to real property 
 shall come in question, shall apply to the courts embraced in this 
 title ; except that, after the discontinuance of the action in the infe- 
 rio'r court upon an answer of title, the new actionmay be brought 
 either in the supreme court, or in any other court having gurisdic- 
 tion thereof, and except, also, that in the city and county of Kew 
 York, a judgment /or tujerdy-jwe doUars or over, exct/imve 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 a judgment of the court of common pleas for 
 the city and county of New York. 
 
 § 6§. (As am'd in 1851.) The provisions of sections 55 to 64, both 
 inclusive, relating to forms of action, to pleadings, to the times of 
 commencing actions, to the rules of evidence, to filing and docket- 
 ing transcripts of judgments, to their effect, and the mode of enforc- 
 ing them, and to proceedings where title to real property shall come 
 in question, shall apply to the courts embraced in this title ; except 
 that, after, the discontinuance of the actions 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-five dollars or over, exclusive of costs, the tran- 
 script 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, cmd be deemed aJTidgmeat of, the court of common pleas 
 for the city and county of New York. 
 
PART II. 
 
 Of Civil Actions. 
 
 TITLE I. Of thbib Fobk, 
 
 n. Of ths Tuts of Coxkencing thbh. 
 HL Of ths Fabtisb. 
 IV. Of the Fiacb of Tbiai.. 
 y. Of the MAmiBB of Coxocbncxng thek. 
 
 yi. Of the PZiEASINGS. 
 
 VIL Of the PBOvieiONAi. Kescedies. 
 Tin. Of the Tbul ass Jusohsht. 
 IX. Of the Execution of the Jvhoment. 
 X. Of the Costs. 
 XL Of Afpeaus. 
 
 All. Of the HiSCEIXASEOITS PBOCEBDHiaS. 
 
 juu. Actions in. Pabticitlab Cases. 
 Xrv. Pbovisions KBi^TiNa to Existing Suitb. 
 Xy. Obnebal Pbotisions. 
 
 TTTZiE L 
 
 Of the lintn, of Civil Aeti&ni. 
 
 Section 69. Distinction between actions at law and soits in equity, and fonns 
 of sucli actions and suits abolislied. 
 
 70. Parties to an action, liow designated. 
 
 71. Actions on judgments, wlien and liow to be brougtit. 
 
 72. Feigned issues abolislied, and order for trial subsntnted. 
 
 § 69. (Being 1 62 of 1848.) The distinction between actions at law 
 and suits in equity, and the forms of all such actions and suits, 
 heretofore existing, are abolished ; and there shall be in this State, 
 hereafter, but one form of action for the enforcement or protection 
 of private rights and the redress or prevention of private wrongs, 
 which shall be denominated a civil action. 
 
 (Am'd in 1849.) 
 
 § 69. (As am'd in 1849.) The distinction between actions at law 
 and suits in equity, and the forms of all such actions and suits, here- 
 tofore existing, are abolished ; and there shall be in this State, here- 
 after, but one form of action for the enforcement or protection of 
 private rights and the redress <f private wrongs, which shall be 
 denominated a civil action. 
 
60 CODE OF PEOCKDUBE. [§§ YO-'72. 
 
 § 70. (Being § 63 of 1848.) In such action, the party complain- 
 ing shall be known as the plaintiff, and the adverse party as the 
 defendant. ' 
 
 § 71. (Being § 64 of 1848.) No action shall 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 i and no 
 action on a judgment rendered by a justice of the peace diall be 
 commenced within two years after its rendition, except in case 
 of his death, resignation, incapacity to act, or removal &om the 
 county. 
 
 (Am'd in 1849.) 
 
 § 71. (As am'd in 1849.) No action shall 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, wilhout 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 shall be 
 IrougM in the -same oouTtty within fim years after its rendition ex- 
 cept in case of his death, resignation, incapacity to act, or removal 
 from the county, or that the process was not personally sensed on the 
 d^endant, or on ail the defendants, or in ease ijf the death of some of 
 the parties, or where the docket or record of muh judgment is or shaU 
 ha/ce been lost or destroyed. 
 
 § 72. (Being § 65 of 1848.) Feigned issues 'are abolished; and 
 
 Instead thereof, in the cases where the power now exists to order a 
 
 feigned issue, or when a qtiestion of fact,'not put in issue hy the 
 
 ' plea,dmgs, is to be tried by a jury, an order for the trial may be 
 
 ■ made, stating, distinctly and plaiinly, the question of fact to be tried, 
 
 and such order shall be the only authority necessary for a trial. 
 
§§ 7s, 74.] CODE GP PEOCEDUEE. 61 
 
 TTTIiE n, . 
 
 Of the nne of Commeheinp 0ml AdUms. 
 
 Chapteb 1. Actions in general. 
 
 n. Actions for tlie recoT«ry of real property. 
 m. Actions, other than for the recovety of real property, 
 ly. General proTisions. 
 
 CHAPTER L 
 
 The Time of Convmetui'ng Actiorts in General. 
 
 Section 73. Eepeal of existing limitations. 
 
 74. Time of commencing civil actions. 
 
 § 73'. (Being § 66 of 1848.) The provisions contained in the second, 
 third, fourth, fifth and sixth articles of the chapter of the revised 
 statutes entitled " Of actions and the times of commencing them," 
 are repealed, and the proyisions of this title are substituted in their 
 stead. This title shall not extend to actions already commenced, 
 or to cases where the right of action has already accrued ; but the 
 statutes now in force shall be applicable to such cases, according to 
 the subject of the action, and wiOiout regard to the form. 
 
 (Am'd in 1849.) 
 
 § 73. (As am'd in 1849.) The provisions contained in the chapter 
 of the revised statutes entitled " Of actions and the times of com- 
 mencing them," are repealed, and the provisions of this title are 
 substituted in their stead.- This title shall not extend to actions 
 already commenced, or to cases where the right of action has 
 already accrued ; but the statutes now in force shall be applicable 
 to such cases, according to the- subject of the action, and without 
 regard to the form. 
 
 I 74. (Being § 67 of 1848.) The civil actions embraced within sec- 
 tion 66 can only be commenced within the periods prescribed in 
 this title, after the cause of action shall have accrued, except where, 
 in special cases, a different limitation is prescribed by statute. 
 
 (Am'd in 1849 and 1851.) 
 
 • § 74. (As am'd in 1849.) Civil actions can only be commenced 
 within the periods prescribed in this title, after the cause of action 
 
-82 CODB OF fkoce'dube. [§§ 14^ 15. 
 
 shall have accrued, except where, in special cases, a different 
 limitation is prescribed by statute, and in the ca»e$ mentionecl in 
 teetion7S. 
 
 § T4. (As am'd in 1851.) Civil actions can only bt commenced 
 within the periods prescribed in this title, after the cause of action 
 shall have accrued, except where, in special cases, a different 
 limitation is prescribed by -statute, and in the cases mentioned in 
 section 73. 
 
 But the objection that the aetion was^not commenced within the tme 
 limited, can vnly be taken hy answer. 
 
 CHAPTER n. 
 
 The lime of (hmmmuAng Actions for the Beeovery of Beal Properly. 
 
 Section 75. When the people will not sne. 
 
 76. When action cannot be brought by grantee from the State. 
 
 77. When actions by the people or their grantees to be brought within 
 
 twenty years. 
 
 78. Seisin within twenty years, when necessary in action for real prop- 
 
 erty. 
 
 79. Seisin within twenty years, when necessary in action or defense 
 
 founded on title to or rents of real property.' 
 
 80. Action must be commenced within one year after entry, or within 
 
 twenty years after right of entry. 
 
 81. Possession when resumed; occupation deemed under legal title, 
 
 unless adverse. 
 
 82. Occupation under written instrument or judgment, when deemed 
 
 adverse. . 
 
 83. What constitutes adverse possession, nnder written instroment or 
 
 judgment. 
 81. Premises actually occupied, nnder claim of title, deemed to he held 
 adversely. 
 
 85. What constitutes adverse possession under claim of title not written. 
 
 86. Relation of landlord and tenant, as affecting adverse possession. 
 
 87. Right of possession not affected by descent cast. 
 
 88. Certain disabilities excluded from time to commence actions. 
 
 (§ 68 of 1848— omitted in 1849.) The provisions of the revised 
 statutes contained in the article entitled " Of the time of commenc- 
 ing actions relating to real property," shall, until otherwise pro- 
 vided by statute, continue in force, and be applicable to actions for 
 the recovery of real property. 
 
 § 75, (Added in 1849.) The people of this State will not sue any 
 person for, or in respect to, any real property, or the issues or profits 
 thereof, t)y reason of the right or title of the people to the same, , 
 imless, 
 
§§ 76-79"! CODE OP PEOCEDUEE, 63 
 
 1. Such right or title shall have accrued within forty years before 
 any action or other proceeding for the same shall be commenced ; 
 or, imless, 
 
 2. The people, or those from whom they claim, shall have re- 
 ceived the rents and profits of such real property, or of some part 
 thereof, within the space of forty years. 
 
 § 7*. (Added in 1849.) No action shall be brought for, or in re- 
 spect to, real property, by any person claiming by virtue of letters 
 patent, or grants from the people of this State, unless the same 
 might have been commenced by the people as herein specified, in 
 case such patent or grant had not been issued or made. 
 
 § T7. (Added in 1849.) When letters patent or grants of real 
 property shall have been issued or made by the people of this State, 
 and the same shall be declared void by the determination of a com- 
 petent court, rendered upon an allegation of a fraudulent sugges- 
 tion, or concealment, or forfeiture, or mistake, or ignorance of a 
 material fact, or wrongful detaining, or defective title, iu such case 
 an action for the recovery of the premises so conveyed may be 
 brought either by the people of this State, or by any subsequent 
 patentee or grantee of the same premises, his heirs or assigns, within 
 twenty years .after such determination was made; but not after 
 that period. 
 
 § 78. (Added in 1849.) No action for the recovery of real prop- 
 erty, or for the recovery of the possession thereof, shall be main- 
 tained unless it appear that the plaintiff, his ancestor, predecessor 
 or grantor, was seised or possessed of the premises in question, 
 within twenty years before the commencement of such action. 
 
 I 79. (Added in 1849.) No cause of action or defense 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 prose- 
 cuting the action, or making the defense, or under whose title the 
 action is prosecuted or the defense is made, or the ancestor, prede- 
 cessor or gruitor of such person was seized or possessed of the 
 premises in question, within twenty years before the committing of 
 the act in respect to which such action is prosecuted or defense 
 made. 
 
64 O0DE OB' PEOCEDUEB. [§§ 80-8^ 
 
 § 80. (Addedm 1849.) No entiy. upon real estate shall be deemed 
 sufficient, or valid as a claim, unless an action be commenced there- 
 upon within one year after the making of such entry, and within 
 twenty yeaisfrom the time when , the right to make suc^ entry 
 descended or accrued. 
 
 § 81. (Added in 1849.) In every action for the recovery of real 
 property, or the possession thereof, the person establishing a legax 
 title to the premises shall be presumed to have been possessed 
 thereof within the time required ' by law ; and the occupation of 
 such premises by any other person shall be deemed to have been 
 under and'in subordination to the legal title, unless it appear tiiat 
 such premises have been held and possessed adversely to such legal 
 title for twenty years before the commencement of such action. 
 
 § 82. (Added in 1849.) Whenever it shall appear that the occu- 
 pant, or those under whom he claims, entered into the possession of 
 premises under claim of title, exclusive of any other right, founding 
 such claim upon a written instrument, as being a conveyance of the 
 premises in question, or upon the decree or judgment of a compe- 
 tent court ; and that there has been a continued occupation and 
 possession of the premises included in such instrument, decree or 
 judgment, or of some part of such premises, under such claim, for 
 twenty years, the premises so included shall be deemed to have been 
 held adversely, except that, where the premises so included consist 
 of a tract divided into lots, the possession of one lot shall not be 
 deemed a possession of any other lot of the same trapt. 
 
 § 83. (Added in 1849.) For the purpose of constitutir^g an adverse 
 possession, by any person claiming a title founded upon a written 
 instrument, or a judgment or decree, land shall be deemed to have 
 been possessed and occupied in the following cases : . 
 
 1. Where it has been usually cultivated or improved. 
 
 3. Where it has been protected by a substantial indosiu'e. 
 
 3. Where, although, not inclosed, it has been used for, the supply 
 of fuel, or of fencing timber, for the purposes of husbandry, or the 
 ordinary use of the occupant. 
 
 4, Whete a known farm or a single lot has been partly improved, 
 the portion of such farm or lot that may have been left not cleared, 
 or not inclosed ,aceording to the usual course and custom of the 
 adjoining country, shall be deemed to have, been occupied for t^e 
 same length of time as the part improved and cultivated. 
 
§§ 84-58.] CODB OP PBOOBDUEB. 65 
 
 §> 84. (Added in- 1849.) Where it shall appear that there has been 
 am actual continued occupation of premises, under a claim of title, 
 exdusive of any other light, but not founded upon a -written instru- 
 ment, or a judgment or decree, the premises so actually occupied, 
 and no other, shall be deemed to have been held adversely. 
 
 § 85. (Added in 1849.) For the purpose of constituting an adverse 
 possession, by a person claiming title not founded upon a written 
 instrument, or a judgment or decree, land shall be deemed to have 
 been possessed and occupied in the following cases only: 
 
 1. Where it has been protected by a substantial inclosure. 
 
 3. Where it has been usually cultivated or improved. 
 
 § 86. (Added in 1849.) Whenever the relation of landlord and 
 tenant shall have existed between any persons, the possession of the 
 tenant shall be deemed the possession of the landlord, imtil the 
 expiration of twenty years from the termination of the tenancy ; or, 
 where there has been no written lease, until the expiration 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 landlord. But such presumptions 
 shall not be made after the periods herein limited. 
 
 § 87. (Added in 1849.) The right of a person to the possession 
 of any real property, shall not be impaired or afibcted by a descent 
 being cast in consequence of the death of a person in possession of 
 such property. 
 
 §88. (Added in 1849.) If a person entitled to commence any 
 action for the recovery of real property, or to make an entry or 
 defense 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 con- 
 viction of a criminal ofTense, for a term less than for lite ; or, 
 
 4. 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 
 6* 
 
66 CODE OF PEOCEDUEB. [§§ 88, 89. 
 
 defense ; but such action may be commenced, or entry or defense 
 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 disability ; but such action shall not be 
 commenced, or entry or defense made, after that period. 
 (Am'd m 1870.) 
 
 § 88. (As am'd m 1870.) If a person entitled to commence any 
 action for the recovery of real property, or to make an entry or 
 defense 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 con- 
 viction of a criminal offense, for a term less than for life. 
 
 The time during which such disability shall continue shall not be 
 deemed any portion of the time in this chapter limited for the com- 
 mencement of such action, or the making of such entry or defense ; 
 but such action may be commenced, or entry or defense 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 disability; but such action shall not be commenced, or 
 entry or defense, made, after that period. 
 
 CHAPTER IIL 
 The tmm of Oormnmumg AcHona other than for the Becovery of Beai 
 
 SzoTiON 89. Periods of limitation prescribed. 
 
 90. Within twenty years. 
 
 91. Within six years. 
 S2. Within three years. 
 
 93. Within two years. 
 
 94. Within one year. 
 
 95. When cause of action accmed, in an action upon a current acconnt. 
 
 96. Actions for penalties, etc., by any person who will sue, when to he 
 
 brought. 
 
 97. Actions for relief, not before provided for. 
 
 98. Actions by the people, subject to the same limitation. 
 
 § 89. (Bemg § 69 of 1848.) The periods prescribed in section 67 
 for the commencement of actions other than for the recoveiy of 
 real property shall be as follows : 
 
 (Am'd in 1849.) 
 
§§ 89, 91.] CODE OF PEOCEDUEB. 67 
 
 § 89. (As am'd in 1849.) The periods prescribed in section 74 for 
 the commencement of actions other than for the recovery of real 
 property shall be as follows : 
 
 § 90. (Being § 70 of 1848.) 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. (Being § 71 of 1848.) Within six years : 
 
 1. An action upon a contract, obligation or liability, express or 
 implied; excepting those mentioned in section 70. 
 
 2. An action upon a liabilily 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 chat- 
 tels, including actions for the specific recovery of personal property. 
 
 5. An action for criminal conversation, or for any other injury to 
 the person or rights of another, not arising on contract, and not 
 hereinafter enmnerated. 
 
 6. An action for relief, on the ground of fraud; the cause of 
 action in such case not to be deemed to have accrued, until the dis- 
 covery by the aggrieved party, of the facts constituting the fraud. 
 
 (Am'd m 1849.) 
 
 § 91. (As am'd in 1849.) Within six years: 
 
 1. An action upon a contract, obligation or liability, express or 
 implied; excepting those mentioned in section 90. 
 
 2. An action upon a liability created by statute, other than a 
 penalty of 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 personal 
 property. 
 
 5. An action for criminal conversation, or for any other injury 
 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 eases which 
 heretofore were sdlMy cogrmable bj/ the court of chaneery ; 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. 
 
68; CODE Oy rBOCBPUEE. [§§ 92-95. 
 
 § 93. >(Bemg § 72 of 1848.) Within three years : 
 
 ,1. An action -againat a. sheriff or coroner upon a liability in- 
 curred 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 shall. not apply. to an action for an escape. 
 
 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. 
 
 (Am'd in 1848.) 
 
 § 92. (As am'd in 1849.) Within three years : 
 
 1. An action against a sheriff, coroner w constable upon a lia- 
 bility incurred by the doiiig of an act in his official capacity, 
 and iiL virtue of his dffice, or by the omission of an official duty; 
 mcluding the non-payment of money collected upon an execution. 
 But this section shall not apply to an action for an escape^ 
 
 2. An action upon a statute, f pr a penalty or forfeiture, where 
 the action is given to the party aggrieved, or to such party and 
 the people of tiiis State, except where the statute imposing it pre- 
 scribes a 4lifferent limitation. 
 
 . §93. (Being § 73 of 184S.) Within two years: 
 
 1. An action for libel, slander, assault, battery or &lse impris- 
 onment. 
 
 2. An action upon a statute for a forfeiture or penalty to the 
 people of this State. 
 
 § 94. (Being § 74 of 1848.) Within one year: 
 1. An action against a sheriff or other officer, for the escape 
 of a prisoner arrested or imprisoned on civil process. 
 
 § 95. (Being § 75 of 1848.) In an action brought to recover a 
 balance due upon a mutual, open and current account, where 
 there have been reciprocal demands between the parties, the 
 cause of action shall be- deemed to have accTued from the time 
 of the last item in the account on the adverse side. 
 
 (Am'd in 1849.) 
 
§§ 95-98.] CODE OF PEOCEDUEE. 69 
 
 § 95, (As am'd in 1849.) In an action brought to recover a bal- 
 ance due upon a mutual, open and current account, where 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 proned in the account on dther side. 
 
 § 96. (Being § 76 of 1848.) An action upon a statute for a pen^ 
 alty or forfeiture, given in whole or in part to any person who will 
 prosecute for the same, must be commenced wit£in one year after 
 the commission of the offense ; and, if the action be not coimnenced 
 within thp year by a private party, it may be commenced 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 
 offense was committed. 
 
 97. (Being § 77 of 1848.) An action for relief not hereinbefore 
 provided for must be commenced within ten years after the cause 
 of action shall have accrued. , 
 
 § 98. (Being § 78 of 1848.) The limitations prescribed in this title 
 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. 
 * (Am'd in 1849.) 
 
 § 9S. (As am'd in 1849.) The limitations prescribed in this cha/p' 
 ter 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 x>ri- 
 vate parties. 
 
70 CODE or PKOCBD0EE. [§ 99. 
 
 CHAPTER IV. 
 
 General Provisums ostotTie time qf eommendng Actions. 
 
 Sbctiok 99. When action deemed to have T)een commenced. 
 
 100. Exception, where defendant is out of the State. 
 
 101. Exception, as to perBone under dieahilitieB. 
 
 103. Provieion, where perBon entitled dies before the limitation expires. 
 
 103. In snitB by aliens, time of war to be deducted. 
 
 104. Provision, where judgment has been reversed. 
 
 105. Time of stay of action by injunction or Btatatory proliibition to be 
 
 deducted, 
 
 106. Disability must exist when right of action accrued. 
 
 107. Where two or more disabilities, limitation does not attach till 
 
 all removed. 
 
 108. This title not applicable to bills, etc., of corporations, or to bank 
 
 notes. 
 
 109. Nor to actions against directors or stockholders of moneyed corpo- 
 
 rations or banking aBsociations ; limitations in such cases pre- 
 scribed. 
 
 110. Acknowledgment Or new promise must be in writing. 
 
 § 99. (Being § 79 of 1848.) An action shall not be deemed com- 
 menced, within the meaning of this title, unless it appear : 
 
 1. That the summons or other-process therein was duly served upon 
 the defendants, or one of them ; or, 
 
 2. That the summons was delivered, with the intent that it should 
 be actually served, to the sheriff of the county in which the defend- 
 ants, or one of them, usually or last resided; or, if a corporation 
 be defendant, to the sheriff of the county in which such corporation 
 was established by law, or where its general business was trans- 
 acted, or where it kept an ofllce for the transaction of business. 
 
 (Am'd in 1849, 1851 and 1867.) 
 
 § 99. (As am'd in 1849.) An action shall not be deemed com- 
 menced, within the meaning of this title, unless it appear : 
 
 1. That the summons, or other process therein, was dvdy served 
 upon the defendants, or one of them ; or : 
 
 8. That the summons, or o<A«r process, was delivered, with the 
 Intent that it should be actually served, to the sheriff, or otTier officer 
 of the county in which the defendants, or one of them, usually or 
 last resided; or, if a corporation be defendant, to the sheriff, or 
 other officer of the county in which such corporation was established 
 by law, or where its general business was transacted, or where it 
 kept an office for the transaction of business. 
 
§§ 99, 100.] CODE OP PEOCEDUEE. ^1 
 
 Bv;t am action sTuiU ie deemed eommeneed,for aUprtrposes, at the time 
 the ontyplaiTU is verified, pnmded thai the summons or other process there- 
 ijuponismed,})edelM>eTedto the sheriff or otherofficer,on thesame ornent 
 five succeeding days, amd lefoVowed hy the aetudl service thereof on the 
 defemdam^oroneormffreof them. 
 
 § 99. (As am'd in 1851.) 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 e^ivalent to the commence- 
 ment thereof within the meaning of this iHU, when the summons is de- 
 livered, 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, usuaUy or last resided; as, if a corporation he defendant, 
 to the sheriff, or other officer of the county in which such cor- 
 poration was established by law, or where its general business was 
 transacted, or where it kept 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. 
 
 § 99. (As am'd in 1867.) An action is commenced, as to each 
 defendant, when the summons is served on him, or on a co-defend- 
 ant, who is a joint contractor, or otherwise united in interest with 
 
 tiim. 
 
 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 resided; or, if a corporation be 
 defendant, to the sheriff, or other officer of the county in which 
 such corporation was established by law, or where its general busi- 
 ness was transacted, or where it kept an office for the transaction of 
 business. 
 
 § 100. (Being § 80 of 1848.) If, when the cause of action shall 
 accrue against a person, he be out of the State, the action may be 
 commenced within the term herein limited, after his return to the 
 State ; and if, after the cause of action shall have accrued, he depart 
 from and reside out of the State, the time of his absence shall not be 
 part of the time limited for the commencement of the action. 
 
 (Am'd in 1849, 1851 and 1867.) 
 
72 CODE OF PKOCBDUEBi [|§ 100, 101, 
 
 § 100. (As am'd in 1849.) if, 'when the cause of action shallaccrae 
 against a person, he he oat of the State, the action maybe com- 
 menced within the tenn herein' limitedj after his return to the State ; 
 Bind if , after the cause of action shall have accrued, he depart from 
 the State, the time of his absence shall not be part of the tbne limited 
 for the commencement of the action, 
 
 §100. (As am'd in 1851.), If, when the cause of action shall accrue 
 against any person, he shall be out of the State, such action may be 
 commenced within the terms heiwa. respedw^ limited, after the 
 return off «ueh person into this State ; and if, after such cause of 
 action shall have accrued, siieh person shall depart from and reside 
 out of this State, the time of liis absence shall not be deemed or taken 
 as amy part of the time limited f or thecommencement of' such action. 
 
 § 100. (As am'd in 1867.) If, when the cause of action shall accrue 
 against any person,.he shall be out of the State, such action may be 
 commenced 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, or remain eonUmumsly dbsemt thereprom for the space 
 if one yea/r or more, 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. (Being § 81 of 1848.) If a person entitled to bring an action, 
 except for a penalty or forfeiture, or against a sheriff or other offlper 
 for an escape, be at the time the cause of the 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 term less than his natural life ; or, 
 
 4. A married woman ; 
 
 'The time of such disability shall not be a part of the time limited 
 for the commencement of the action. 
 
 (Am'd in 1849, 1851, 1852 and ISVP.) 
 
 § 101. (As am'd in 1849.) If a person entitled to bring an action 
 menUoned in the last preceding chaipte'r, except for a penalty or for- 
 feiture, or against a sheriff or other officer for an escape, be at the 
 time the cause of the action accrued, either : 
 
 1. Within the age of twenty-one years; or, 
 
 2. Insane; or. 
 
I lOl.J CODE OP PEOCEnUEE. V3 
 
 3. Imprisoned on a criminal charge, or in execution nnder the 
 sentence of a criminal court, for a term less than his liatural life ; or, 
 
 4. A married woman ; 
 
 The time of such disability shall not be a part of the time limited 
 for the commencement of the action. 
 
 = § 101. (As am'd in 1851.) If a person entitled to appeal or bring 
 an action mentioned in the last chapter, except for a penalty or for- 
 feiture, or against a sheriff or other officer for an escape, be at the 
 time the cause of the 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 term less than his natural life ; or, 
 
 4. A married woman, 
 
 The time for 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 than fme yean by any 
 such disabUity, except infaiwy, nor can it be so extended in any case 
 longer thorn, one year after the disdbiUiy ceases. 
 
 § 101. (As am'd in 1853.) 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 the 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 term less than his natural life ; or, 
 
 4 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 than 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. 
 
 § lOl. (As am'd in 1870.) 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 the action accrued, either: 
 
 1. Within the age of twenty-one years ; or, ' ■ 
 
 3. Insane; or, 
 
 1 
 
74 CODE OP PEOCBDUEB. [§§ 102-104. 
 
 3. Imprisoned on a criminal charge, or in execution under the 
 sentence of a criminal court, for a term less ths,n hi" natural life. 
 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 than five yeara 
 by any such disability, except infancy, nor can it be so extended in 
 any case longer than one year after the disability ceases. 
 
 § 103. (Being § 83 of 1848.) 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, his representatives may 
 commence the action, after the expiration of that time, and within 
 one year from his death. 
 
 (Am'd in 1849.) 
 
 § 102. (As am'd in 1849.) 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, am, action may ie commenced 
 Jyy Ms representatives, after the expiration of that time, and witliin 
 one year from his death. If a person against whom an action may 
 be brought die before the eaepiraUon of the tkne limited for the com- 
 mencemerd thereof, and the cause of acHon survive, an action may be 
 commenced againM his executors or administrator after the ex/pijraUon 
 of thai time, amd within one yea/r after the issuing of letters lestamervta/ry 
 or cf adiministratUm. 
 
 § 103. (Being § 83 of 1848.) "When a person shall be an alien 
 subject or citizen of a country at war with the United States, the 
 time of the continuance of the war shall not be part of the period 
 limited for the commencement of the action. 
 
 § 104. (Being § 84 of 1848.) If an action shall be commenced within 
 the time prescribed therefor, and a judgment therein for the plaint- 
 iff 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. 
 
 (Am'd in 1863.) 
 
 § 104. (As am'd in 1863.) If an action shall be commencisd, 
 within the time prescribed therefor, and a judgment therein be re- 
 
§§ 105-109.] CODE OP PEOCEDTJEE. VS 
 
 versed on appeal, the plaintiff, or, if he die and the cause of action 
 svirvive, his heirs and representatives, may commence a new action 
 ■within one year after the reversal. 
 
 § 105. (Being § 85 of 184S.) When the commencement of an ac- 
 tion shall be stayed by injunction, the time of the continuance of 
 the injunction shall nOt be part of the time limited for the com- 
 mencement of the action. 
 
 (Am'd in 1849.) 
 
 § 105. (As am'd in 1849.) When the commencement of an ac- 
 tion shall be stayed by injimction or statutory 'prohUntion, the time 
 of the continuance of the injunction, w proMbiUon, shall not be 
 part of the time limited for the commencement of the action. 
 
 § 106. (Being § 86 of 1848.) No person shall avail himself of a 
 disability, unless it existed when his right of action accrued. 
 
 § 107. (Bemg § 87 of 1848.) When two or more disabilities shall 
 exist, the limitation shall not attach until they all be removed. 
 (Am'd in 1849.) 
 
 § 107. (As am'd in 1849.) 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. (Bemg § 88 of 1848.) This title shall not affect actions to 
 enforce the payment of bills, notes or other evidences of debt issuea 
 by moneyed corporations, or issued or put in circulation as money. 
 
 § 109. (Bemg § 89 of 1848.) This title shall not affect actions against 
 directors or stockholders of a moneyed corporation to recover e 
 penalty or forfeiture imposed, or to enforce a liability created by 
 the second title of the chapter of the revised statutes entitled " Of 
 incorporations ;" but such actions must be brought within six years 
 after the discovery, by the aggrieved party, of the facts upon which , 
 the penalty or forfeiture attached, or the liability was created. 
 
 (Am'd m 1849.) 
 
 § 109. (As am'd in 1849.) This title shall not affect actions against 
 directors or stockholders of a moneyed corporation, or barMng asso- 
 
^6 CODE OF PEOCEDXTBE. [|§ HO, HI. 
 
 eiationg, to recover a penally or forfeiture imposed, or to enforce a 
 Jiability created, Jy Icm; but such actions must be brought within 
 six years after the discovery, by the aggrieved. party, of the facts 
 upon which the penalty or forfeiture attached, or the liability was 
 created. 
 
 § 110. (Being § 90 of 1848.) Where the time for commencing an 
 action iarising on contract shall have expired, the cause of action 
 shall not be deemed revived by an acknowledgment or new promise, 
 unless the same be in writing, subscribed by the party to be charged 
 thereby. 
 
 (Am'd in 1849.) 
 
 § 110. (As am'd in 1849.) No acknowledgment or promise shall 
 be sufScient 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 vmting signed by the party to be charged 
 thereby ; but this section shall not alter the effect of any payment 
 of principal or interest. 
 
 TITIiE! nL 
 
 Of the Parties to 0ml Actions. 
 
 Skction 111. Action to be in the name of the real party In interest. 
 
 JJo Assignment of a thing In action not to prejudice a defense. 
 
 113. Executor or trustee may sue without the persons beneflciallT 
 
 mterested. 
 
 114. When married woman Is party, her husband to be joined, ex- 
 
 cept, etc. 
 
 115. Infant to appear by gnardian. 
 
 116. Onsrdian, how appointed. 
 
 117. Who may be joined as plaintiff^. 
 
 118. Who may be joined as defendants. 
 
 119. Parties united in interest, when to be joined; when one or more 
 
 may sue or defend for the whole. 
 
 120. Plaintiff may sue in one action the different parties to commercial 
 
 paper. 
 
 121. Action, when not to abate by death, marriage, or other disability; 
 
 etc. ; proceedmgs in such case. "«>■./, 
 
 !**• *''t^^®£*° **°**^ controTersy, or to order other parties to bs 
 
 § 111. (Being § 91 of 1848.) Every action must be prosecuted in 
 the name of the real party m interest, except as otherwise provided 
 in section 93. 
 
 (Am'd in 1849, 1851, 1862, 1866.) 
 
§§ 111.112.] CODE OF PEOCBDUBB. ' 11 
 
 § 111. (As am'd in 1849.) Every action must be prosecuted in the 
 name of the real party in interest, except as otherwise provided in 
 section 113. 
 
 § 111. (As am'd in 1851.) Every action must be prosecuted in the 
 name of the real party in interest, except as otherwise provided in 
 section 113 ; but this section sTiaU not ie deemed to omtlwrke the assign- 
 menntof a tMng in axtitm hot a/risiTig out of contract. 
 
 § 111. (As am'd in 1862.) Every action must be prosecuted in the 
 name of the real party in interest, except as otherwise provided in 
 section 113 ; but this section shall not be deemed to authorize the 
 assignment of a thing in action not arising out of contract. But am, 
 action may ie Trwintained by a grantee of land in the name of a grantor, 
 when the gramt or grants aire mnd by reojson of the admal possesmn of a 
 person claiming under a title adioerse to that of the grantor at the Mme of 
 the ddiveryof the grant, and the plaintiff shaU be aUowed to prove the 
 facts to bring the case viithin this provision. 
 
 % 111. (As am'd in 1866.) Every action must be prosecuted in the 
 name of the real party in interest, except as otherwise provided in sec- 
 tion 113 ; but this section shall not be deemed to authorize the assign- 
 ment of a thing in action not arising out of contract. But an action 
 may be maintained by a grantee of land in the name of a grantor, 
 or his or her heirs or legal representatives, when the grant or grants 
 are void by reason of the actual possession of a person claiming 
 imder a title adverse to that of the grantor at the time of the delivery 
 of the grant, and the plaintiff shall be aUowed to prove the &cts to 
 bring the case within this provision. 
 
 § 112. (Being § 92 of 1848.) In the case of an assignment of a 
 thing in action, the action by the assignee shall be without preju- 
 dice to any set-off or other defense existing at the time of or before 
 notice of the assigmnent; but this section shall not apply to a nego- 
 tiable promissory note or biU of exchange. 
 
 (Am'd in 1849.) 
 
 § 1 12, (As am'd in 1848.) 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 defense existing at the time of or before notice 
 
 of the assignment ; but this section shall not apply to a negotiable 
 
 1* 
 
78 CODE OF PEOCBDUKB. [§§ 113, 114. 
 
 promissory note or bill of exchange, tramsferred in good faith, onA 
 v/pon good eonMeraUon, before due. 
 
 % 113. (Being § 93 of 1848.) An executor or administrator, a trus- 
 tee of an express trust, or a person expressly authorized by statute, 
 may sue without joining with him the persons for whose benefit the 
 suit is prosecuted. 
 
 (Am'd in 1851.) 
 
 § 113. (As am'd in 1851.) An executor or administrator, a trus- 
 tee of an express trust, or a person expressly authorized by statute, 
 may sue without joining with him the person for whose benefit the 
 action is prosecuted. A trustee of an ex/press trust mfhin the meaning 
 of this sedtion, shaU be construed to inciude a person with whom or in whose 
 name a contract is made far the benefit of another. 
 
 § 114. (Being § 94 of 1848.) When a married woman is a party, 
 her husband must be joined with her, except that, 
 
 1. When the action concerns her separate property, she may sue 
 alone. 
 
 3. When the action is between herself and her husband, she may 
 sue or be sued alone. 
 
 (Am'd m 1851 and 1857.) 
 
 § 114. (As am'd in 1851.) When a married woman is a party, her 
 husband must be joined with her, except tliat, 
 
 1. When the action concerns her separate property, she may sue 
 alone. 
 
 3. When the action is between herself and her husband, she may 
 sue or be sued alone. But where her husband cannot be joined with 
 her, as herein provided, she shaU prosecute or defend by her next friend. 
 
 § 114. (As am'd in 1857.) When a married woman is a party, 
 her husband must be joined with her, except that, 
 
 1. When the action concerns her separate property, she may sue 
 alone. 
 
 3. When the action is between herself and her husband, she may 
 sue or be sued alone. 
 
 And in no case need she prosecute or defend by a gua/rdian or next 
 
§§115, 116.] CODE OP PBOCBDUEE. 79 
 
 § 115. (Being § 95 of 1848.) When an infant is a party, he mvist 
 appear by guardian, who may be appointed by the court in which 
 the action is prosecuted, or by a judge thereof. 
 
 (Am'd.in 1849.) 
 
 § 115. (As am'd in 1849.) When an infant is a party, he must 
 appear by guardian, who may be appointed by the court in wliich 
 the action is prosecuted, or by a judge thereof, or a umidy judge. 
 
 % 116. (Being § 96 of 1848.) The guardian shall be appointed as 
 follows : 
 
 1. When the infant is plaintiff, upon the petition of the infant, if 
 he be of the age of fourteen years, or, if under that age, upon the 
 petition of some other party to the suit, or of a relative or friend of 
 the infant. 
 
 3. When the infant is defendant, upon the petition of the infant, 
 if he be of the age of fourteen years, and apply within twenty days 
 after the service of the summons. If he be under the age of four- 
 teen, or neglect so to apply, then upon the petition of any other party 
 to the action, or of a relative or friend of the infant. 
 
 (Am'd in 1851, 1852, 1863, 1863, 1865.) 
 
 § 116. (As am'd in 1851.) The guardian shall be appointed as 
 f oUows : 
 
 1. When the infant is plaintiff, upon the application of the infant, 
 if he be of the age of fourteen years ; or, if under that age, upon 
 the application <if hia general or Ustamemtary gua/rdian, if he has 
 any, or of a relative or Mend of the infant; if made by a relative <«■ 
 friend of the infant, rwtice thereof miisi first be given to such guardian, 
 if he has one; if he hds none, then to the person with whom imch infant 
 
 2. When the infant is defendant, upon the applicaMon of the 
 infant, it he be of the age of fourteen years, and apply within twenty 
 days after the service of the summons. If he be under the age of 
 fourteen, or neglect so to apply, then upon the application of any 
 other party to the action, or of a relative or friend of the infant, afterr 
 notice of siuih appUcaiion being first given to the general or testamentary 
 guardian of sudi infant, if he has one; if he has none, then to the infant 
 
80 CODE or PEOOBDUEB. [§116- 
 
 Mmdf, jf owr fourteen yea/rsqfage; or, if tinder ihat age, to tJie person 
 with whom meh infamt resides. 
 
 § 116. (As am'd in 1853.) Same as § 116, as am'd in 1851, down to 
 sub. 2, and from thence as follows : 
 
 2. When the infant is defendant, upon the application of the 
 infant, if he be of the age of fourteen yearsj and apply witiiin 
 twenty days after service of the summons. If he be under the age 
 of fourteen, or neglect so to apply, then upon the application of any 
 other party to the action, or of a relative or friend of the infant, 
 after notice of 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 himself, if over fourteen 
 years of age, aTid within the State; or, if under that age, amd within 
 the State, to the person with whom such infant resides. 
 
 § 116. (As am'd in 1862.) Same as § 116, as am'd in 1852, except 
 that the following words were added at the end thereof: 
 
 " And in actions for the partition of real property, or for the fore- 
 closure of a mortgage or other instrument, when an infant defend- 
 ant resides out of this State, the plaintiff may apply to the court in 
 which the action is pending, at any special term thereof, and will be 
 entitled to an order designating some suitable person to be the 
 guardian for the infant defendant, for the purposes of the action, 
 unless the infant defendant, or some one in his behalf, within 
 a number of days after the service of a copy of the order, which 
 number of days shall be in the said order specified, shall procure 
 to be appointed a guardian for the said infant, and the court shall 
 give special directions in the order for the manner of the service 
 thereof, which may be upon the infant himself, or by service upon 
 any relation or person with whom the infant resides, and either by 
 mail or personally upon the person so served. 
 
 § 116. (As am'd in 1863.) Same as § 116, as amended in 1862, 
 except that the following words were added at the end thereof : 
 
 " And in case an infant defendant, having an interest in the event 
 of the action, shall reside in any State with which there shall not 
 be a regular communication by mail, on such fact satisfactorily 
 appearing to the court, the court may appoint a guardian ad Utem, 
 for such absent infant party, for the purpose of protecting the right 
 of such infant in said action, and on such guardian ad litem, process, 
 
§ J16.] CODB OF PBOCBDUBE. 81 
 
 pleadings and notices in the action may be served in the like man- 
 ner as upon a party residing in this State." 
 
 § 116. (As am'd in 1865.) The guardian shall be appointed as 
 foUows : 
 
 1. When the infant is plaintiff, upon the application of the infant, 
 if he be of the age of fourteen years ; orj 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 
 Mend 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. 
 
 3. When the infant is defendant, 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 four- 
 teen, or neglect so to apply, then upon the application of any other 
 party to the action, or of a relative or friend of the infant, after 
 notice of such application being first given to the general or testa- 
 mentary guardian of such infant, if he has one within this State ; if 
 he has none, then to the infant himself, if over fourteen years of 
 age, and within the State; or, if under that age, and within the 
 State, to the person with whom such infant resides. And in actions 
 for the partition of real property, or for the foreclosure of a mort- 
 gage or other instrument, when an infant defendant resides out of 
 this State, or is te/mporant/y oiiseml tlwrefrom,, the plaintiff may apply 
 to the court in which the action is pending, at any special term 
 thereof, and will be entitled to an order designating some suitable 
 person to be the guardian for the infant defendant, for the purposes 
 of the action, unless the infant defendant, or some one in his behalf, 
 within a number of days after the service of a copy of the order, 
 which number of days shall be in the said order specified, shall 
 procure to be appointed a guardian for the said infant, and the court 
 shall give special directions in the order for the manner of the 
 service thereof, which may be upon the infant. 
 
 And in case an infant defendant, having an interest in the event 
 of the action, shall reside in any State with which there shall not be 
 a regular communication by mail, on such fact satisfactorily appear- 
 ing to the court, the court may appoint a guardian ad litem, for such 
 absent infant party, for the purpose of protecting the right of such 
 infant in said action ; and on such guardian ad litem, process, plead- 
 
82 CODE OP PEOCBDUBB. [§§ 117-120. 
 
 ings and notices in the action may be served in tlie like manner as 
 upon a party residing in this State. 
 
 § lH". (Being § 97 of 1848.) All peraons 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 tliis title. 
 
 § 118. (Being 1 98 of 1848.) Any person may be made a party defend- 
 ant who has an interest in the controversy, adverse to the plaintifi. 
 (Am'd in 1849 and 1867.) 
 
 § 118. (As am'd in 1849.) Any person may be made a defendant 
 ■who has or claims an interest in the controversy, adverse to the 
 plaintiff, or who is a Tiecasa/ry party to a complete determination or 
 settlement of the questions iaivcHmed therrem. 
 
 § 118. (As am'd in 1867.) 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 ; and in an aeUon to 
 reconer the possession of reaZ estate, the landlord and tenant thereof may 
 be joined as defendants; and any person dai/rmmg tide or a right of pos- 
 session to real estate may be made parties plaintiff or defendamt, as the 
 case may rehire, to any such action. 
 
 1 119. (Being § 99 of 1848.) 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 rea- 
 son thereof being stated in the complaint. 
 
 (Am'd in 1849.) 
 
 § 119. (As am'd in 1849.) Of the parties to the action, those ■who 
 are imited 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 qf a com- 
 mon or general interest of many persons, or when the parties are very 
 num^ous and it may be impracticable to bring th,em aM Itfore the court, 
 one or more may sue or defend for the benefit of the whale. 
 
 § 120. (Being § 100 of 1848.) Persons severally liable upon the 
 same obligation or instrument, including the parties to biUs of 
 
§ 121.] CODB OF PKOCEDHEE. 83 
 
 exchange and promissoiy notes, may, all or any of them, be mcluded 
 in the game action, at the option of the plaintiff. 
 
 § 121. (Being § 101 of 1848.) No action shall abate by the death, 
 marriage or other disability of a party, or by the ttansfer 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, 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 court may 
 allow the person to whom the transfer is made to be substituted in 
 the action. 
 
 (Am'd in 1849, 1857, 1862, 1869 and 1870.*) 
 
 1 131. (As am'd in 1849.) No action shall abate by the death, mar- 
 riage or other 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 afterwards, on a suppUmental 
 eomiplaint, may allow the action to be continued by or against his 
 representative or successor in interest. In case of any other trans- 
 fer of interest, the action shall be continued in the name of the 
 original party, or the court may allow the person to whom the trans- 
 fer is made to be substituted in the action. 
 
 § 121. (As am'd in 1857.) Same as § 121, as amended in 1849, 
 except that the following words were added thereto : 
 
 " After a verdict shall be rendered in any action for a wrong, 
 such action shall not abate by the death of any party, but the case 
 shall proceed thereafter in the same manner as in cases where the 
 cause of action now survives by law." 
 
 § 121. (As am'd in 1862.) Same as § 121, as amended in 1857, 
 except that the following words were added thereto : 
 
 " At any time after the death, marriage or other disability of the 
 party plaintiff, the court in which an action is pending, upon notice 
 to such persons as it may direct, and upon application of any person 
 
 * The amendment of this section in 1870 does not apply to actions pending at 
 the time of its passage (May 6, 1870), nor to any right of action then ah*eady 
 accrued, and takes effect June 1, 1870. (See 1 15, ch. 741 of 1870.) 
 
84 CODE OP PEOCEDUEE. [§ 121. 
 
 aggrieved, may,im its discretion', order that the action be deemed 
 abated unless the same.be continued by the proper parties, within a 
 time to be fixed by the court, not less than six months, nor exceed- 
 ing one year, from the granting of the order." 
 
 §121. (As am'd in 1869.) Same' as § 131, as amended in 1863, 
 except that the following words were added thereto : 
 
 "And where judgment has heretofore, or shall hereafter bd, 
 recovered for the possession of real property, and the party recover- 
 ing said judgment shall have died subsequent to the recovery 
 thereof, his successor in interest in said land, whether by grant, 
 devise or inheritance, may revive said judgment and enforce the 
 same by execution, on motion, within one year after said death, or 
 afterwards, on supplemental complaint." 
 
 § 121. (As am'd in 1870.) No action shall abate by the death, 
 marriage or other disability of a party, or by the transfer of any 
 interest therein, if the cause of action survive or contiuue. In case 
 of death, mairiage or other disability of a party, the court on 
 motion, at any time within one yea* thereafter, or afterward, 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 court may allow the person to 
 whom the transfer is made to be substituted in the action. 
 
 After a verdict shall be rendered in any action for a wrong, such 
 action shall not abate by the death of any party, but the case shall 
 proceed thereafter in the same manner as in cases where the cause 
 of action now survives by law. 
 
 At any time after the death, marriage or other disability of the 
 party plaintiff, the court in which an action is pending, upon notice 
 to such persons as it may direct, and upon application of any person 
 aggrieved, may, in its discretion, order that the action be deemed 
 abated, unless the same be continued by the proper parties, within a 
 time to be fixed by the;oourt, not less than six months, nor exceed- 
 ing one year, from the granting of the order. 
 
 And where judgment has heretofore, or shall hereafter, be re- 
 covered for the possession of real property, and the party recovering 
 said judgment shall have died subsequent to the recovery thereof 
 his successor in interest in said land, whether by grant, devise or 
 
§ 122.] CODB OP PKOCBDUBE. 85 
 
 mheiitance, may revive said judgment and enforce- the same, by 
 execution, on motion, within one year after said death, or afterwards, 
 on supplemental complaint. 
 
 Wliere an intestate, not ieing am, inhoMtanl of the State, iTiaU die out 
 tf Um State not leamng assets fherdn, and there shaU be pending in the 
 gupreme court, or in the court of appeals, an appeal hrougbt ly such in- 
 testate from ajvdffmemt against him, the court in, which said a/ppeal is 
 pending may order the jvdgment appealed from affirmed, with costs, 
 unless the attomeji far the intestate on said a/ppeal procure said acUon to 
 ie revived, within six months afternotice to perfect such appeal, by the 
 eubs^ution of a re/preMmtoMve af said intestate in said action. 
 
 % 122. (Being § 102 of 1848.) When a complete determination of 
 the controversy cannot be had without the presence of other parties, 
 the court may order them to be brought in by an amendment of the 
 complaint, or by a supplemental compliant, and a new summons. 
 
 (Am'd in 1849 and 1851.) 
 
 § 122. (As am'd in 1849.) l%e court may determine any controversy 
 between parties, before it, when it can be doneieithout pr^udice to the 
 rights of others, or by sa/mng their rights; but wben a complete deter- 
 mination of the controversy cannot be had without the presence 
 of other parties,- the court sha^ order them to be brought in. 
 
 § 122. (As am'd in 1851.) The court may determine any contro- 
 versy 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 be had without 
 the presence of other parties, the court miaA cause them to be 
 brought in. And when, in an action for the recovery of real or per- 
 sonal property, a person, not a pa/rty to the-action, but homing an inlere«l 
 in the gulgect thereof, makes application to the court to be made a party, 
 it Tnay ord^ him to be brought in by the proper amendment. 
 
 A defendamt against whom an action is pending upon a contract, or 
 far speeife, real or personal property, may, at any time before answer, 
 upon affidamt that a person, not a party to the action, and without col- 
 lusion wUh him,.ma]ies against him a denwmd for the sa/me debtor 
 property, upon diic notice to such person and the advise party, apply to 
 the court for an order to substitute such person in his place, and discharge 
 Mm from TiabUHy to either party on his depositing in court the amumnt 
 tf the debt, or detioering the property, or its vaMe, to such person as the 
 court may direct; and the court may in its di^iretum, make (he order. 
 8 
 
86 CODE or PEOCEDUBE. [§ 123. 
 
 TITLE IV. 
 
 Of the Place of Trial of CwU Actions. 
 
 SsonoN iSS. Certain acttons to lie tried where tbe snbject or Bome part thereof 
 
 is Bituated. 
 184. Other actions, where the canse or some part thereof arose. 
 135. Other actions, according to the residence of the parties. 
 126. Action may be tried in any county unless defendant demand trial 
 
 in proper county. 
 
 § 123. (Being § 103 of 1848.) Actions for the following causes 
 must be tried in the county -where the cause or some part thereof 
 arose, or in which the subject of the action or some part thereof is 
 situated, subject to the power of the court to change the place of 
 trial, ia the cases provided by statute : 
 
 1. For the recovery of real property or of an. estate or interest 
 therein, or for the determination, in any form, of such right or inter- 
 est, and for injuries to real property. 
 
 3. For the partition of real property. 
 
 3. For the foreclosure of a mortgage of real property. 
 
 4. For the recovery of personal property distrained for any cause. 
 
 5. For injuries to the person or personal property. 
 
 6. For the recovery of a penalty or forfeiture imposed by statute ; 
 except that, when it is imposed for an offense 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 offense was committed. 
 
 7. Against a public officer, or person specially appointed to exe- 
 cute 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 any 
 thing touching the duties of such officer. 
 
 (Am'd in 1849.) 
 
 § 123. (As am'd in 1849.) Actions for the following causes must 
 be tried in the county in which the subject of the action, or some 
 part thereof, is situated, subject to the power of the court to change 
 the place of trial, in the cases provided by statute : 
 
 1. For the recovery of real property or of an estate or interest 
 therein, or for the determination, in any form, of such right or 
 interest, and for injuries to real property. 
 
§§ 124-126.] CODE OP PEOCEDUBB. 87 
 
 2. For the partition of real property. 
 
 3. For the foreclosure of a mortgage of real property. 
 
 4. For the recovery of personal property distrained for any cause. 
 
 § 124. (Added in 1849.) Actions for the following causes must 
 he tried in the comity where the cause, or some part thereof, arose, 
 subject to the like power of the court, to change the place of trial 
 in the cases provided by statute : 
 
 1. For the recovery of a penalty or forfeiture imposed by statute; 
 except, that when it is imposed for an offense 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 offense was 
 committed. 
 
 2. Against a public officer or person specially appointed to execute 
 his duties, for an act done by Tiim in virtue of his office, or against 
 a person who, by his command or in his aid, shall do any thing 
 touching the duties of such officer. 
 
 § 125. (Bemg § 104 of 1848.) In all other cases, the action shall 
 be tried in the county in which the parties or any of them shall 
 reside at the commencement of the action; or if none of the parties 
 sha'U reside in the State, the same may be tried in any county 
 which the plaintiff shall designate in his complaint, subject, how- 
 ever, to the power of the court to change the place of trial, in the 
 cases provided by statute. 
 
 § 126. (Being § 105 of 1848.) If the county designated for that pur- 
 pose in the complaint be not the proper covmty, the action may, 
 notwithstanding be tried therein, unless the defendant shall, before 
 the time for answering expire, demand, in writing, tliat the trial 
 be had in the proper county. 
 
 (Am'd in 1851.) 
 
 § 126. (As am'd in 1851.) If the county designated for that pur- 
 pose in the complaint be not the proper county, the action may, 
 notwithstanding, be tried therein, unless the defendant, before the 
 time for answering expire, demand, in writing, that the trial be had 
 in the proper county, and the place of triaJ, be thereupon chamged by 
 consent of parties, or by order (if the court, a« is provided in this section. 
 
88 CODE or PBOCEDTJEE. [§§ 127, 128. 
 
 Ths (xmrt may change the place of i/ricA im thefoUoamg cases : 
 
 1. When the county designated for thai pwrpose in the compUUnt is 
 not the proper county. 
 
 2. When there is reason to Idieoe that am, impartial trial ca/nnot be had 
 
 8. When the convenience qf witnesses and the ends qf justiee wndd he 
 promoted by the eham^e. 
 
 When the place of trial is changed, aH other proceedings shaM be had 
 in the county to which the place of trial is changed, unless otherwise pro- 
 vided by the consent ef the parties, in writing, daily JUed, or order of the 
 court, and the papers shall be fled or tran^erredaceordmgly. 
 
 irrzii! v. 
 
 Of the mam/nerr of Com/meneing dvH Actions. 
 
 Section 127. Actions, how commenced. 
 
 128. Smnmons, reqniBiteB of. 
 
 129. Notice to be inserted in certain actions. 
 
 130. Complaint need not be served with summons ; in snch case, what 
 
 to be stated in^ summons, and proceedings thereon. 
 
 131. Defendant unreasonably def ending, whenro pay costs. 
 
 132. Notice of pendency of action affecting title to real property. 
 
 133. Summons, by whom' served. 
 
 134. Summons^ how, served and returned. 
 
 135. Publication, when defendant cannot be found. 
 
 136. Proceedings, when there are several defendants, and part, only, 
 
 served. 
 
 137. When service deemed made in case of publication. 
 
 138. Service of summons, how proved. 
 
 139. When jurisdiction of action acquired. 
 
 I 127. (Being § 106 of 1848.) Civil actions in the courts of 
 record of this State, shall be commenced by the service of a 
 summons. 
 
 § 128. (Being § 107 of 1848.) The summons shall be subscribed by 
 the plaintifif, or his attorney, and directed to the defendant, and shall 
 require him to answer the complaint, and serve a copy of his answer 
 on the person whose name is subscribed to the summons, at a place 
 within the State, to be therein specified, in which there is a post- 
 offlce, within twenty days after the service of the summons, exclu- 
 sive of the day of service. 
 
 (Am'd m 1870.) 
 
 § 128. (As am'd in 1870.) The summons shall be subscribed by 
 am attorney, and directed to the defendant, and shall require him to 
 
§ 129, 130.] CODE OF PBOCEDUBB. 89 
 
 answer the compiaint, and serve a copy of his answer on the person 
 whose name is sabscribed to the summons, at a place within the 
 State, to be therein specified, in which there is a post-office, within 
 twenty days after the service of the summons, exclusive of the day 
 of service 
 
 § 129. (Being § 108 of 1848.) The plaintiff shall also insert in the 
 summons a notice, in substance as follows : 
 
 1. In an action arising on contract, for the recovery of money 
 only, that he will take judgment for a sum specified therein, if the 
 defendant fail to answer the complaint 
 
 2. In other actions, that, if the defendant fail to answer the 
 complaint, the plaintiff will apply to the coiui;, at a specified time 
 and place (after the expiration of the time for answering), for the 
 relief demanded in the complaint 
 
 (Am'd in 1849.) 
 
 § 129. (As am'd in 1849.) The plaintiff shall also insert in the 
 summons a notice, in substance as follows : 
 
 1. In an action arising on contract, for the recovery of money 
 only, that he will take judgment for a sum specified therein, if the 
 defendant fail to answer the complaint in twenty dcvyg after the ser- 
 vice of the summons. 
 
 3. In other actions, that, if the defendant shall fail to answer the 
 complaint within twenty days after serviee of the tummmis, the plaint- 
 iff will apply to the court for the relief demanded in the complaint 
 
 § 130. (Being § 109 of 1848.) A copy of the complaint shall be 
 served with the summons, except that, in the case of a defendant, 
 against whom no personal claim is made, in an action for the par- 
 tition of real property, or for the foreclosure of a, mortgage, the 
 plaintiff may, instead of a copy of the complaint, deliver to such 
 defendant, with the summons, a notice subscribed by the plaintiff, 
 or his attorney, setting forth the general object of the action, a 
 brief description of the property affected by it, and that no personal 
 claim is made against such defendant ; in which case no copy of 
 the complaint need be served on such defendant, vmless, within the 
 time for answering, he shall, in writing, demand the same. 
 
 (Am'd in 1849 and 1851.) 
 
 § 130. (As am'd in 1849.) A copy of the complaint need not be 
 served with the summons. Jn such case, the summons shaU state 
 8* 
 
90 CODE or PHPCEDUEE. [§§ 130, 131. 
 
 where the oomplamt vM lejUed; and if the defendant, within ten days 
 tlwreafter, in person, or hy aMomey, demand, in vmting, a copy of the 
 complaint, specifying a place within the State where it may be served, a 
 copy thereof ahaU be served accordingly, and after such service the defend 
 ant shaU ham twenty days to answer, but orJy one copy need be served 
 on the same attorney. In the case of a defendant against wliom no 
 personal claim is made, in an action for the partition of real property, 
 or for the foreclosure of a mortgage, the plaintiff may deliver to such 
 defendant, with the summons, a notice subscribed by the plaintiff, 
 or his attorney, setting forth the general object of the action, a brief 
 description of the property affected by it, and that no personal claim 
 is made against such defendant, in which case no copy of the com- 
 plaint need be served on such defendant, unless, within the time for 
 answering, he shall, in writing, demand the same. 
 
 § 130. (As am'd in 1851.) A copy of the complaint need not be 
 served with the summons. In such case, the summons must state 
 where the complaint is, or will be filed ; and it th^ defendant, within 
 twenty days thereafter, causes notice of appearance to be given, 
 and in person, or by attorney, demands, in writing, a copy of the 
 complaint, specifying a place within the State where it may be 
 served, a copy thereof must, within twenty days thereafter, be 
 served accordingly, and after such service, the defendant has 
 twenty days to answer, but only one copy need be served on the 
 same attorney. 
 
 § 131. (Being § 110 of 1848.) If a defendant, on whom such notice 
 is served, unreasonably defend the action, he shall pay oosta to the 
 plfuntiff. 
 
 (Am'd in 185t) 
 
 § 131. (As am'd in 1851.) In the ease of a defendant against whom 
 no personal daim is made, the plaintiff .may ddiwr to such defendant, 
 with the summons, a notice subserved by the plaintiff, or his attorney, 
 setting forth the general object of the action, a brief descHpUon cf the 
 property affected by it, if it affects specific real or per sonM property, and 
 that no personal claim is made against such defendant, in which case no 
 copy of the complaint need be served on such defendant, unless within the 
 time for answering, he shaU, in uniting, demand the same. If a defend- 
 ant, on whom such notice is served, unreasonably defend the action, 
 be shall pay costs to the plaintiff. 
 
§ 132.] CODE OP PBOCBDCKB. 91 
 
 § 133. (Being § 111 of 1848.) In an fiction affecting the title to 
 real property, the plaintiff, at any time after the commencement 
 thereof, may file with the clerk of each county in which the prop- 
 erty is situated, a notice of the pendency of the action, containing 
 the names of the parties, the object of the action, and a description 
 of the property in J^at county affected thereby ; and if the action 
 be for the foreclosure of a mortgage, the date of the mortgage, the 
 parties thereto, and the time and place of recording the same. la 
 such case only shall the pendency of the action be constmctiTe 
 notice to a purchaser or incumbrancer of the property affected 
 thereby. 
 
 (Am'd in 1849, 1851, 1857, 1858, 1863 and 1866.) 
 
 § 133. (As am'd in 1849.) In an action affecting the title to real 
 property, the plaintiff, at the time of commencing the action, or at any 
 Ume afterwards, may file with the clerk of each county in which 
 the property is situated a notice of the pendency of the action, 
 containing the names of the parties, the object ot the action, and a 
 description of the property in that county affected thereby; and, if 
 the action be for the foreclosure of a mortgage, axich notice must be 
 JUed tuienly days before judgment and mutt contain the date of the 
 mortgage, the parties thereto, and the time and place of recording 
 the same, from the Ume ofJUing only shall the pendency of the 
 action be constructive notice to a purchaser or incumbrancer of the 
 property affected thereby. 
 
 § 133. (As am'd in 1851.) In an action affecting the title to real 
 property, the plaintiff, cU the time of filing the complaint, or at any 
 time afterwards, etc. (as in 1849) 
 
 § 133. (As am'd in 1857.) in an action affecting the title to real 
 property, the plaintiff, at the time of filing the complaint, or at any 
 time afterwards, or whenever a wa/rrant of attachm£nt, wnder chajpter 
 ^ofaOsI pa/rt second cf this code ihatt le issued, or at any Umeafter- 
 wa/rds, the plaintiff, if the sarife be intertded to affect real estate, may file 
 with the clerk of each county, etc. (as in 1849). 
 
 § 183. (As am'd in 1858.) Same as § 183, as amended in 1857, ex- 
 cept that the following words were added: "And every person 
 whose conveyance or incumbrance is subsequently executed or 
 subsequently recorded shall be deemed a subsequent purchaser or 
 
92 CODE OP PEOOEDUBB. ,[§ 132. 
 
 iucuiubrancer, and Bhall be bound by all proceedings taken after 
 filing of Buch notice to tbe same extent as if be were made a party 
 to the action." 
 
 § 132. (As am'd in 1862.) Same as § 132 as am'd in 1858, except 
 that the following words were added thereto : 
 
 "For the pvirposes of this section an action shall be deemed to be 
 pending &om the time of the filing of such notice ; provided, hoTf- 
 ever, that such notice shall be of no avail, unless it shall be followed 
 by. the first publication of the summons on an order therefor, or by 
 the personal service thereof on a defendant within sixty days after 
 such filing. 
 
 And the court in which the said action is pending may, in its dis 
 cretion, at any time after the action shall have become abated, as is 
 provided in section number 121, on good cause shown, and on appli- 
 cation of any party aggrieved, after the action shall have become 
 abated as is provided in section 131, direct the notice authorized by 
 this section to be removed from record by the clerk of any CQunty 
 in whose office the same may have been filed." 
 
 : § 132. (As am'd in 1866.) In an action affecting the title to real 
 property, the plaintiff, at the time of filing the complaint, or at any 
 time afterwards, or whenever a warrant of attachment, under chap- 
 ter 4 of title 7, part 2 of this code, shall be issued, or at any time 
 afterwards, the plaintiff, or a defendant, when he sets up an ajfvrrrM- 
 twe cause of action in his answer ami demands substantive relief, 
 at the time ofJUing his amswer, or at any time afterwards, if the 
 same be intended to affect real estate, may file with the clerk of 
 each county in which the property is situated' a notice of the pend- 
 ency of the actioif, containing the names of the parties, the objeet 
 of the action, and the description of the property in that county 
 affected thereby; and if the action be for the foreclosure of a mort- 
 gage, such notice must be filed twenty days before judgment, and 
 must contain the date of the mortgage, the parties thereto, and the 
 time and place of recording the same. From the time of filing only 
 shall the pendency of the action be constructive notice to a pur- 
 chaser or incumbrancer of the property affected thereby ; and every 
 person whose conveyance or incumbrance is suT^sequently executed 
 or subsequently recorded shall be deemed a subsequent purchaser 
 or incumbrancer, apd shall be bound by all proceedings, taken after 
 
§ 133, 134.] CODS OF FBOCBDUBB; 93 
 
 the filing of subh notice to the same extent as if he were made a 
 party to the action. For the purposes of this section, .an action 
 shall be deemed to be pending from the time of filing such notice; 
 provided, however, that such notice shall be of no avail unless it shall 
 be followed by the first publication of the summons on an order 
 therefor, or by the personal service thereof on a defendant within 
 sixty days after such filing. And the court in which the said action 
 was commenced may, in its discretion, at any time after the action 
 shall ie settled, discontinued or abated, as is provided in section 
 number 121, on application of any person aggrieved, and on good 
 cause shown, and on such notice as shaU be directed or a^pproved 
 by the court, order the notice authorized by this section to be ccm- 
 eeled of record by the clerk of any county in whose office the same 
 may have been filed or recorded/ and nwch/ eamceHaiimL shall be. made 
 by an indorsement to that effect on the margin of the record, which shall 
 r^er to the order, and for which the clerk shall be entitled to a fee of 
 tmeniy-fke cents. 
 
 § 133. (Being § 113 of 1848.) The summons may be served by 
 the sheriff of the county where the defendant may be found, or by 
 any other person not a party to the action. The service shall be 
 made, and the summons returned, with proof of the service, to the 
 person whose name is subscribed thereto, with all reasonable dili- 
 gence. The person subscribing the summons may, at his option^ 
 by an iadoisement on the summons, fix the time for the service 
 thereof, and the service shall then be made accordingly. 
 
 § 134. (Being § 113 of 1848.) The summons shaU be served by 
 delivering a copy thereof as follows : 
 
 1. If the suit be against a corporation, to the president or other 
 head of the corporation, secretary, cashier, or managing agent 
 thereof. 
 
 %. It against a minor under the age of fourteen years, to such 
 minor personally, and also to his father, mother or guardian, or if 
 there be none witliin the State, then to any person having- the care 
 and control of such minor or with whom he shall reside, or in 
 whose service he shall be employed. 
 
 3. If against a person judicially declared to be of unsound mind, 
 or incapable of conducting his own affairs in consequence of habitual 
 
94 CODE OF PEOCEDFEH. [§ 134, 135. 
 
 drunkenness, and for whom a committee has been appointed, to the 
 committee, and to the defendant personally. 
 
 4 In all other cases to the defendant personally. 
 
 (Am'd in 1851 and 1859.) 
 
 § 134 (As am'd in 1851.) Same as 1 184, as passed in 1848, except 
 that sub. 1 -was amended so as to read as follows: 
 
 " 1. If the suit be against a corporation, to the president or other 
 head of the corporation, secretary, cashier, treamrer, a dkeetor, or 
 managing agent thereof ; iut such aermee cam, he made in respect to a 
 foreign corporation orH/y, when it has property within this State, or the 
 cause of action arose therein." 
 
 § 134. (As am'd in 1859.) The summons shall be served by 
 delivering a copy thereof as follows : 
 
 1. If the suit be against a corporation, to the president or other 
 head of the corporation, secretary, cashier, treasurer, a director or 
 managing agent thereof ; but such service can be made in respect 
 to a foreign corporation only, when it has property within this State, 
 or the cause of action arose therein, or where such serviee shaU ie 
 made within this State personaUy upon the president, treaswrer, or seere- 
 
 3. If against a minor under the age of fourteen years, to such 
 minor personally, and also to his father, mother or guardian, or if 
 there be none within the State, then to any person having the care 
 and control of such minor, or with whom he shall reside, or in 
 whose service he shall be employed. 
 
 3. If against a person judicially declared to be of unsound mind, 
 or Incapable of conducting his own affairs in consequence of habit- 
 ual drunkenness, and for whom a committee has been appointed, to 
 such committee and to the defendant personally. 
 
 4 In all other cases to the defendant personally. 
 
 § 135. (Being § 114 of 1848.) When the person on whom the ser- 
 vice is to be made cannot, after due diligence, be found within the 
 State, and that fact shall appear by affidavit, to the satisfaction of 
 the court or a judge thereof, and it shall in like manner appear that 
 a cause of action exists against the defendant, in respect to whom 
 the service is to be made, and that such defendant is a resident of 
 this State, or has property therein, such court or judge may grant 
 an order, that the service be made by the publication of the sum- 
 
§ 135.] CODE OF PE0CEDT7EE. 95 
 
 moDS in two newspapers, which the judge may designate, as most 
 likely to give notice to the person to be served, and for such length 
 of time, not less than thirty days, as the judge shall deem reason- 
 able. In case of publication, the judge shall also direct a copy of 
 the summons to be forthwith deposited in the post-ofSce, directed 
 to the person to be served, at his place of residence, unless it appear 
 to the judge that such residence is neither known to the party 
 making the application, nor can, with reasonable diligence, be ascer- 
 tained by him. Personal service of the summons out of the State 
 shall be equivalent to publication, and deposit in the post-oflSce. If 
 the summons shall not be personally served on any defendant, nor 
 received by such defendant through the post-ofSce, in the cases pro- 
 vided for in this section, he or his representatives shall, on applica- 
 tion and sufficient cause shown at any time before judgment, be 
 allowed to defend the action ; and he or his representatives may, in 
 like manner, be allowed to defend after judgment, at any time 
 within one year after notice thereof, and within seven years after its 
 rendition, on such terms as shall be just; and, if the defense be 
 successful, and the judgment, or any part thereof, shall have been 
 collected or otherwise enforced, such restitution may thereupon be 
 compelled as the court shall direct 
 (Am'd in 1849, 1851, 1858 and 1860.) 
 
 § 135. (As am'd in 1849.) Where the person on whom the service 
 is to be made cannot, after due diligence, be found within the State, 
 and that fact shall appear by affidavit to the satisfaction of a court, 
 or a judge thereof, or a county judge, and it shall in like manner 
 appear that a cause of action exists against the defendant, in re- 
 spect to whom the service is to be made, or thai he U a necessary 
 or proper pa/Hy to. am, action relating to real property in this State, such 
 court or judge may grant an order that the service be made by the 
 publication of a sunmions in either of the following cases : 
 
 1. Wh^ere tJie defendant is a foreign an-poration. 
 
 2. Where the defendant, heing a resident of this Slate, Juia departed 
 therefrom, with intent to defraud his creditors, or avmd the service qf a 
 summons, or keeps himself concealed therein with the like intent; and the 
 action arises <mt cfconirael, or the rum-feasance or mirfeasance com- 
 plained cfisa breach of eontraet. 
 
 8. Where he is a 7ionrTe»ident,iut7ias property therein, and th£ action 
 is on contract, and the court has jurisdiction of the subject of the action. 
 
96 tJ&DK OP PEOCKDtrEE; [§ l35, 
 
 4 Where fke mjgtetofilvt aethn ii real or perianal property in tM» 
 Btate, and itJiedeferuUmt has ov daims a Men or imte/rest^ aetual or con- 
 tingent, therem, or 1M fdief deitumded eonmU wholly or paHly in 
 ioeduMng the diefendaMfrom O/iug •interest therein. 
 
 5, Where the action is founded on a mortgage wpon property in 
 thh State, omd the defendant is pertonainy cha/rgeabie. with the debt far. 
 which the mortgage is a setswriiy. 
 
 6. Where the acHon is for dimrce in the eases presaribed hy lam. 
 
 The order shall direct the publication to be made in two newspa- 
 pers, to be designated, as most likely to give notice to the person ta 
 be served, and for such length of time ax shaU ie deemed reasonable, • 
 not less tha/n once a week for six weeks. In case of. publication, the 
 court or judge shall also direct a copy of the summons and comv 
 plaint to be forthwith deposited in the post-ofSce, directed to the 
 person to be served", at his place of residence, unless it appear that 
 such residence is neither known to the party making the applies-, 
 tion, nor can with reasonable diligence be ascertained by him. 
 When pttilication is ordered, -p&csonai service of a copy of the sum- 
 mons and complamt oxxt of the State shall be equivalent to publica- 
 ti6n and deposit in the post-ofllce. If the summons shall not be 
 personally served on a defendant, nor received by such defendant 
 through the post-office, in the cases provided for in this section, he 
 or his representatives shall, on application, and sufficient cause 
 shown, at any time before judgment, be allowed to defend the 
 action ; and, eaxept in actions for dinorce, the defendant or his xepre- 
 sentatives may, in like manner, be allowed to defend after judgment, 
 or at any time within one year after notice thereof, and within 
 seven years after its rendition, on such terms as shall be just, except' 
 in actions for divorce, and if the defense be successful, and the 
 judgment, or any part thereof, shall have been collected, or other- 
 wise enforced, such restitution may thereupon be compelled as the 
 court shall direct. And in aU cases where pitblieaMlm is made, the 
 eom/plaint shaU ie first fled, and the sumirums, aspMished, shall state 
 the Ume and pkuse of such flirvg. 
 
 § 135. (As am'd in 1851.) Where the person on whom the service 
 of the summons is to be made cannot, after due diligence, be found 
 within the State, and that fact appears by affidavit to the satisfaction 
 c£fhe court, or a judge thereof, or of the county judge of the eouniy 
 where the trial is to be had, and it in like manner appears that a cause 
 
§ 135.] CODE OF PEOCEDUEE. Q"; 
 
 df aofion exista against the defendant in respect to wliom the service 
 is to be made, or that he is a proper party to an action relating tb 
 real properly in this State, such court or judge may grant an order 
 that the service be made by the publication of a smnmons in either 
 of the following cases : 
 
 1. Where the defendant is a foreign corporation, has proper^ 
 within the State, <rr the cwUse of aclwn, arose therein. 
 
 2. Where the defendant, being a resident of this State, has de- 
 parted therefrom, with intent tn defraud his creditors, or to avoid 
 the service of a summons, or keeps- himself concealed therein with 
 the like intent 
 
 3. Where he is not a resident of this State, but has property 
 therein, and the action arises on contract, and the court has juris- 
 diction of the subject of the action. 
 
 4 Where the subject of the-action is real or personal property in 
 this State, and the defendant has or claims a lien or interest, actual 
 or contingent, therein, or the relief demanded consists whoUy oi 
 partly in excluding the defendant from any interest or lien therein. 
 
 5. Where the action is for divorce, in the cases prescribed by 
 law. 
 
 The order must direct the publication to be made in two news- 
 papers, to be designated, as most likely to give notice to the person 
 to be served, and for such length of time as may be deemed reason- 
 able, not less than once a week for six weeks. In case of publica- 
 tion, the court or judge must also direct a copy of the summons 
 and complaint to be forthwith deposited in the post-office, directed 
 to the person to be served, at his place of residence, imless it appear 
 that such residence is neither known to the party making the appli- 
 cation, nor can, with reasonable diligence, be ascertained by him. 
 When publication is ordered, personal service of a copy of the sum- 
 mons and complaint out of the State is equivalent to publication 
 and deposit in the post-offlce. ^ 
 
 The defendant against whom pvUKcation is ordered, or his repre- 
 sentatives, on application and sufficient cause shown, at any time 
 before judgment, must be allowed to defend the action ; and, ex- 
 cept in an action for divorce, the defendant, agaiTiM whom publico- 
 Hon is ordered, or his representatives, may, in like manner, wpon 
 good caitse- shoum, be allowed to defend after judgment, or at any 
 time within one year after notice thereof, and within seven yeai^ 
 after its rendition, on such terms as may be just ; and if the defense 
 9 
 
98 CODE OF PEOCEDURB. [§ 135. 
 
 be successful, and the judgment, or any part thereof, have been col- 
 lected or otherwise enforced, such restitution may thereupon be 
 compelled as the court directs ; iuf the title to property sold rnider 
 Kueh judgment to a purcTiaser m good faith ahaM not be th^ebff 
 affected. And in all cases where publication is made, the com- 
 plaint must be first filed, and the summons, as published, must state 
 the time and place of such filing. 
 
 § 135. (As am'd iir 1858.) Same as § 135, as amended in 1851, 
 except that sub. 3 was amended so as to read as follows : 
 
 8. Where he is not a resident of this State, but has property 
 therein, and the court has jurisdiction of the subject of the action. 
 
 § 135. (As am'd in 1860.) Where the person on whom the ser- 
 vice of the summons is to be made cannot, after due diligence, be 
 found within the State, and that fact appears by affidavit to the 
 satisfaction of the court or a judge thereof, or of the coimty judge of 
 the county where the trial is to be had, and it in like manner 
 appears that a cause of action exists against the defendant, in 
 respect to whom the service is to be made, or that he is a proper 
 party to an miction relating to real property in this State, such court 
 or judge may grant an order that the service be made by the publi- 
 cation of a summons in either of the following cases : 
 
 1. Where the defendant is a foreign corporation, has property 
 within the State, or the cause of action arose therein. 
 
 3. Where the defendant, being a resident of this State, has departed 
 therefi'om, with intent to defraud his creditors, or to avoid the ser- 
 vice of a summons, or keeps himself concealed therein with the 
 like intent. ' 
 
 3. Where he is not a resident of this State, but has property 
 therein, and the court has jurisdiction of the subject of the action. 
 
 4 Where the subject of the action is real or personal property in 
 this State, and the defendant has or claims a lien or interest, actual 
 or contingent, therein, or the relief demanded consists wholly oi 
 partly in excluding the defendant from any interest or lien 
 therein. 
 
 5. Where the action is for divorce, in the cases prescribed by law. 
 
 The order must direct tiie publication to be made in two newspar 
 pers, to be designated, as moat likely to give notice to the person to 
 be served, and for such length of time as may be deemed reasonable , 
 
§ 136.] CODE OF PKOOEDURE. 09 
 
 not less than once a week for six weeks. In case of publication, 
 the court or judge must also direct a copy of the summons and 
 complaint to he forthwith deposited in the post-ofiSce, directed to 
 the person to be served, at his place of residence, unless it appear 
 that such residence is neither known to the party making the appli- 
 cation, nor can with reasonable diligence be ascertained by him. 
 When publication is ordered, personal service of a copy of the sum- 
 mons and complaint out of the State is equivalent to publication 
 and deposit in the post-office. 
 
 The defendant against whom publication is ordered, or his repre- 
 sentatives, on application and sufficient cause shown, at any time 
 before judgment, must be allowed to defend the action ; and, except 
 in an action for divorce, the defendant against whom publication is 
 ordered, or his representatives, may, in like manner, upon good 
 cause shown, be allowed to defend after judgment, or at any time 
 within one year after notice thereof, and within seven years after 
 its rendition, on such terms as may be just ; and if the defense be suc- 
 cessful, and the judgment, or any part thereof, have been collected, 
 or otherwise enforced, such restitution may thereupon be compelled 
 as the court directs ; but the title to property sold under such judg- 
 ment, to a purchaser in good faith, shall not be thereby affected. 
 And in all cases where publication is made, the complaint must be 
 first filed and the summons, as published, must state the time and place 
 of such filing. 
 
 In (Kiions for the forechmire of mortgages on real estafe, already in- 
 stituted or hereafter to he instituted, if any pa/rty, or parties, Tw/ving any 
 interest in or lien upon suah mortgaged premises, are unknown to the 
 plaintiff, a/nd the residence of such party or parties cannot, with reason- 
 oMe diligence, be ascertained by him, and suehfact shedl be made to appear 
 by affUtamt to the court, or to a justice thereof, or to the counh/ judge of the 
 county where the trial is to be had, Sfueh court, justice or county judge may 
 grami an order that the summ/ms be served on such unknown pairty or 
 parties by publishing the same for six weeks, onee in each week successively, 
 in the State paper and in a rumspaper printed in the county where the 
 premises are iituated,whi(^ publication shall be equivalent to a personal 
 service on xueh unknown party or parties. 
 
 § 136. (Being § 113 of 1848.) Where the action is against several 
 defendants, any one of whom is actually served with the summons; 
 the plaintifT, instead of service of the summons, actually, or by 
 
100 CODE OP PEOCEDUEB. [§ 136. 
 
 publication, on the others, as provided by sections 11& and 114 may 
 proceed as follows : < 
 
 1. If the action be against several persons jointly indebted upon a 
 contract, he may proceed against the defendant served, in the same 
 manner as at present, and with the like effect, unless the court shall 
 otherwise direct. 
 
 2. In an action against defendants severally liable, he may amend 
 his complaint, of course, by striking out the name of the other de- 
 fendants, and may proceed against the defendants served. 
 
 (Am'd in 1849, 1851 and 1866.) 
 
 § 136. (As am'd in 1849.) Where the action is against two or more 
 defendants, and the summons is served on one or more,^T3at not on 
 all of them, the plaintiff may proceed as follows : 
 
 1. If the action be against several persons jointly indebted upon 
 a contract, he may proceed against the defendant served in the 
 same manner as at present, and with the like effect, unless the court 
 shall otherwise direct ; or 
 
 2. In an action against defendants severally liable, he may pro. 
 eeed against the defendant or defendants served in the same manner 
 as if such defendant or defendants were the only parties proceeded 
 
 3. If all the defendants have been served, judgment may be taken 
 against any or either of them severally, when the plaintiff vmdd be 
 entitled to judgment against such defendant or defendants if the action 
 had been against them or any of them alone. When an order shall be 
 made extending the time ta answer beyond the time for which the a/p- 
 ^Ucation for the relief demanded in the complaint shall home been 
 noticed, if the defendant fail to answer, the a/pplication for judgment 
 may be made without further notice. 
 
 § 136. (As am'd in 1851.) Where the action is against two or more 
 defendants, and the summons is served on one or more, but not on 
 all of them, the plaintiff may proceed as follows : 
 
 1. If the action be against defendants joiiitly indebted upon con- 
 tract, he may proceed against the defendant,seiyed, tmless the court 
 otherwise direct ; and if he recover judgment, it may be entered 
 against all the defendants thus jointly indebted, so far only as that it 
 may be enforced against the joint property of all and the sepmaie 
 'property of the defendants served, and if they a/re miJijeet to arrest, 
 against the persons of the defendants served;, or 
 
§§ 136, 137.] C0i)K OP PEOCEDUEB. 101 
 
 3. If the aetion 5e agaiTitt defendants severaUy liable. Tie maiy pro- 
 ceed against the defendants served in the same manner as if they were 
 
 - '8. If all the defendants have been served, judgment may he taken 
 agamst any or either of them severally, when the plamtiff would be 
 entitled to judgment against such defendant or defendants if the 
 action had been against them or any of them alone. 
 
 § 136. (As am'd in 1866.) Where the action is against two or 
 more defendants, and the summons is served on one or more of 
 them, but not on all of them, the plaintiff may proceed as follows : 
 
 1. If the action be against defendants jointly indebted upon con- 
 tract, he may proceed against the defendant served, unless the court 
 otherwise direct ; and, if he recover judgment, it may be entered 
 against all the defendants thus jointly indebted, so far only as that 
 it may be enforced against the joint property of aU and the sepa- 
 rate property of the defendants served, and if they are subject to 
 arrest, against the persons of the defendants served ; or 
 
 2. If the action be against defendants severally liable, he may 
 proceed against the defendants served in the same manner as if 
 they were the only defendants. 
 
 3. If all the defendants have been served, judgment may be taken 
 against any or either of them severally, when the plaintiff would be 
 entitled to judgment against such defendant or defendants if the 
 action had been against them or any of them alone. 
 
 4. Jff' the name of one or m/yre partners shall, for any cause, have 
 been omitted in any action in which judgment shaZl have passed against 
 the defendants named in the summons, and such omission shall not 
 have been pleaded in such action, the plaintiff, in case the judgment 
 therein shall remain unsatisfied, may, by action, recover of sfoch part- 
 ner separately, uponpromng his joint liability, n^tvnthstanding he may 
 not have been nam^d in the original aetion; but the plaintiff shaU have 
 satisfaction of only one judgment rendered for the same cause of action. 
 
 % 137. (Being § 116 of 1848.) In the cases mentioned in the 114th 
 section, the service of the summons shall be deemed complete, at the 
 expiration of the time prescribed by the order for publication. 
 
 (Am'd in 1849.) 
 
 § 137. (As am'd in 1849.) In the cases mentioned in section 135, 
 the service of the summons shall be deemed complete, at the expira- 
 tion of the time prescribed by the order for publication. 
 9* 
 
102 CODE OF PEOCEDUBE. [§§138-139. 
 
 § 138. (Being § 117 of 1848.) Proof tf the service of the summons, 
 and of the complaint or notice, if any, accompanying the same, 
 shall be as follows : 
 
 1. If served by the sheriff, his certificate thereof ; or, 
 
 2. If by any other person, tus affidavit thereof ; or, 
 
 8. In case of publication, the affidavit of the printer, or his fore- 
 man, or principal clerk, showing the same ; and an affidavit of a 
 deposit of a copy of the summons in the post-office, if the same 
 shall have been deposited ; or, 
 : 4. The written admission of the defendant. 
 
 In case of actual service the certificate or affidavit shall state the 
 time and place of the service. 
 
 (Am'd in 1851.) 
 
 § 138. (As am'd in 1851.) Proof of the service of the summons, 
 and of the complaint or notice, if any, accompanying the same, 
 must be as follows : 
 
 1. If served by the sheriff, his certificate thereof ; or, 
 
 3. If by any other person, his affidavit thereof ; or, 
 
 3. In case of publication, the affidavit of the printer, or his fore- 
 man, or principal clerk, showing the same ; and an affidavit of a 
 deposit of a copy of the summons in the post-offlce, as requvred iy 
 law, if the same shall have been deposited ; or, 
 
 4. The written admission of the defendant. 
 
 In case of service othenme them hy publication, the certificate, 
 affidavit, or admission, must state the time and place of the service. 
 
 § 139. (Added in 1849.) From the time of the service of the sum- 
 mons in a civil action, or the allowance of a provisional remedy, 
 the court shall be deemed to have acquired jurisdiction, and to have 
 control of all the subsequent proceedings. 
 
 (Am'd in 1851.) 
 
 § 139. (As am'd in 1851.) From the time of the service of the 
 summons in a civil action, or the allowance of a provisional remedy, 
 the court is deemed to have acquired jurisdiction, and to have con- 
 trol of all the subsequent proceedings, A mlmnta/ry appearance of a 
 defenda/nt is eguimknt to personal service of the summons upon him. 
 
§§ 141, 142.] CODE OS PKOCEDUEE. . 103 
 
 TrriiZ: vx 
 
 Of the Pleadings in Ci'oU Actions. 
 
 Chaptsb I. The complaint. 
 
 n. The demurrer. 
 HL The answer. 
 IV. The reply. 
 
 v. General rules of pleading. 
 YI. Mistakes in pleading, and amendments. 
 
 CHAPTER 1. 
 
 TTie Complaint. 
 
 Section 140. Forms of pleading inconsistent with this act ahoUshed. 
 141. First pleading to be complaint. 
 143. Complaint, what to conf^un. 
 
 § 140. (Being § 118 of 1848.) All the forms of pleading heretofore 
 existing are abolished ; and hereafter the forms of pleading in civU 
 actions, and the rules by which the sufficiency of the pleadings is 
 to be determined, shall be those which are prescribed by this act 
 
 (Am'd in 1849 and 1853.) 
 
 § 140. (As am'd in 1849.) All the forms of pleading heretofore 
 existing, incormstent with the provisions of this act, are abolished ; 
 and hereafter the forms of pleading in civil actions, in courts of 
 record, and the rules by which the sufficiency of the pleadings is to 
 be determined, are modified as prescribed by this act. 
 
 § 140. (As am'd in 1852.) All the forms of pleading heretofore 
 exisUng are abolished ; and hereafter, the f oiins of pleading in civU 
 actions, in courts of record, and the rules by which the sufficiency 
 of the pleadings is to be determined, are those prescribed by this act. 
 
 § 141. (Being § 119 of 1848.) The first pleading on the part of 
 the plaintiff is the complaint. 
 
 § 143. (Bemg § 120 of 1848.) The complaint shall contain: 
 1. The title of the cause, specifying the name of the court in 
 which the action is brought, the name of the county m which 
 
104 . CODE OP PEOCEDUEB. [§§1^2) 144. 
 
 the plaintiff desires the trial to be had, and the names of the parties 
 to the action, plaintiff and defendant. 
 
 3. A statement of the facts constituting the cause of action, in 
 ordinaiy and concise language, without repetition, and in such 
 manner as to enable a person of common understanding to 'know 
 what is intended. 
 
 8. A demand of the relief to which the plaintiff supposes himself 
 entitled. If the recovery of money be demanded, the amount 
 thereof shall be stated. 
 
 (Am'd in 1851.) 
 
 § 142. (As am'd in 1851.) The complaint shall contain: 
 
 1. The. title of the cause, specifying the name of the court in 
 which the action is brought, the name of the county in which the 
 plaintiff desires the trial to be had, and the names of the parties to 
 the action, plaintiff and defendant. 
 
 2. A plain cmd eondse statement of tTie fa^ constCtutmg a cause of 
 action mtTumt unnecessary repetition. 
 
 3. A demand of the relief to which the plaintiff supposes himself 
 entitled. If the recovery of money be demanded, the amount 
 thereof shall be stated. 
 
 CHAPTER XL 
 TTie Demurrer. 
 
 Sbction 143. Defendant to demnr or answer. 
 
 144. When the defendant mar demur. 
 
 145. Demurrer mast specify grounds of objection to complaint. 
 
 146. How to proceed if complaint be amended. 
 
 147. Objection not appearing on complaint may be tal^en by answer. 
 
 148. Objection, when deemed walred. 
 
 § 143. (Being § 131 of 1848.) The only pleading on the part of 
 the defendant is, either a demurrer or an answer. It must be served 
 within twenty days after service of the copy of the complaint. 
 
 § 144. (Being § 133 of 1848.) The defendant may demur to the 
 complaint, when it shall appear upon the face thereof, either: 
 
 1. That the court has no jurisdiction of the person of the defend- 
 ant, or the subject of the action ; or, 
 
 3. That the plaintiff has not legal capacity to sue ; or, 
 
§§ 145-14:1,'] CODE 01" PBOCEDUEK. 105 
 
 3. That there is another action pending between the same parties, 
 for the same cause ; or, 
 -■ 4. That there is a defect of parties, plaintiff or defendant ; or, 
 
 5. That several causes of action have been improperly united ; or, 
 
 6. That the complaint does not state facts sufficient to constitute 
 a cause of action. 
 
 § 145. (Being § 123 of 1848.) The demurrer shall distinctly specify 
 the grounds of objection to the complaint. Unless it do so, it may 
 be disregarded. 
 
 (Am'd in 1849.) 
 
 § 145. {As am'd in 1849.) The demurrer shall distinctly specify 
 the grounds of objection to the complaint Unless it do so, it may 
 be disregarded. It may ie taken to the whole complaint, or to any of 
 the aUeged causes of action stated therein. 
 
 § 146. (Being § 125 of 1848.) If the complaint be amended, k 
 copy thereof must be served on the defendant, who must answer it 
 within twenty days, or the plaintiff, upon filing with the clerk an 
 affidavit of the service, and of the defendant's omission, may pro- 
 ceed to obtain judgment, as provided by section 202 ; but, where 
 an application to the court for judgment is necessary, eight days' 
 notice thereof must be given to the defendant 
 
 (Am'd in 1849.) 
 
 § 146. (As am'd in 1849.) If the complaint be amended, atopy 
 thereof must be served on the defendant, who must answer it 
 within twenty days, or the plaintiff, upon filing with the clerk, on 
 proof of the service, and of the defendant's omission, may proceed 
 to obtain judgment, as provided by section 246 ; but, where an 
 application to the court for judgment is necessaay, eight days 
 notice thereof must be given to the defendant. 
 
 § 147. (Being § 126 of 1848.) When any of the matters enumerated 
 in section 122 do not appear upon the face of the complaint, the ob- 
 jection may be taken by answer. 
 ' (Am'd in 1849.) 
 
 " § 147. (As am'd in 1849i) When any Of the matters enumer- 
 ated in section 144 do not appear upon the" fece of the complaint, 
 the objection may be taken by answer. 
 
106 CODE OF PEOCBDUEE. [§§ 148, 149. 
 
 § 148. (Being § 137 of 1848.) If no such objection be taken, 
 either by demurrer or answer, the defendant shall be deemed t« 
 have waived the same, excepting only the objection to the jurisdic- 
 tion of the com-t over the subject of the action ; and the objection 
 that the complaint does not state facts sufficient to constitute a 
 cause of action. 
 
 (Am'd m 1849.) 
 
 § 14§. (As am'd in 1849.) If no such objection be taken, either 
 by demurrer or answer, the defendant shall be deemed to have 
 waived the same, excepting only the objection to the jurisdiction of 
 the court, and the objection that the complaint does not state facta 
 sufficient to constitute a cause of action 
 
 CHAPTER m. 
 
 The Answer. 
 
 Skotioit 149. Answer ; what to contain, 
 
 150. May set forth as many gronnds of defense as exists. 
 
 161. Bemnrrer as to some causes of action, and answer as to others, 
 
 153. Sham defenses to be stricken out. 
 
 § 149. (Being § 138 of 1848.) The answer of the defendant shaU 
 contain : 
 
 1. In respect to each allegation of the complaint controverted by 
 the defendant, a specific denial thereof, or of any knowledge thereof 
 sufficient to form a belief. 
 
 3. A statement of any new matter constituting a defense, in ordi- 
 nary and concise language, without repetition, and in such a manner 
 as to enable a person of common understanding to know what is 
 intended. 
 
 (Am'd in 1849, 1851 and 1853.) 
 
 § 149. (As am'd in 1849.) The answer of the defendant shall 
 contain: 
 
 1. In respect to each allegation of the complaint controverted by 
 the defendant, a general or specific denial thereof, or a d&nial thereof 
 according to his information and beK^, or of any knowledge thereof 
 sufficient to form a belief. 
 
 2. Same as in 1848. 
 
§§ 149, 150.] CODE OF PEOCEDUEE. 107 
 
 § 149. (As am'd In 1851.) The answer of the defendant rrmat 
 contain: 
 
 1. A spedjle denial of each material allegation of the complaint 
 controverted hy the defendant, according to his knowledge, informa- 
 tion or belief, or of any knowledge or informaMon thereof suf- 
 ficient to form a belief. 
 
 3. A plain and concise statement of any new matter constituting 
 a defence or set-off, without unnecessary repetition. 
 
 § 149. (As am'd in 1853.) The answer of the defendant must 
 contain : 
 
 1. A general or specific denial of each material allegation of the 
 complaint controverted by the defendant, or of any knowledge or 
 information thereof sufficient to form a belief 
 
 3. A statement of any new matter constituting a defence or 
 counterclaim, in ordinary and concise language, without repetition. 
 
 § 150. (Being § 139 of 1848.) The defendant may set forth in his 
 answer as many grounds of defence as he shall have. They shall 
 be separately stated, and may refer to the causes of action which 
 they are intended to answer, in any manner by which they may be 
 intelligibly distinguished. 
 
 (Am'd in 1849 and 1853.) 
 
 § 150. (As am'd in 1849.) The defendant may set forth by answer, 
 as many defences as he shall have. They shall each be separately 
 stated, and refer to the causes of action which they are intended 
 to answer, in any manner by which they may be intelligibly 
 distinguished. 
 
 § 150. (Ab am d in 1853.) The eoumterclalm mentioned in tJie last 
 section must be one existing in fa'oorr of a defendarvt and against a 
 pUanUff, between whom a several judgmjemt might be had in tM action, 
 and arising out of one of the following causes of action : 
 
 1. A cause of action arising out of the contract or transaction set 
 forth in the complaint fl» tlie foundation of the plaintiff's daim, or 
 connected with the subject of the action. 
 
 3. In an action ari»ng on contract, any other cause of action arising 
 also on contract . and existing at the commencement of tJie action. 
 
108 CODE OP PEOCEDUEB, [§§ 151-153. 
 
 The defendant may set forth by answer as many defenses amA 
 eounterdaima as he may have, whether they be lueh a» ham been 
 heretofore denomirwited legal or eguitable, or both. They mu»t each 
 l^ iseparately ' stated, i and refer to the causes of action which 
 they are intended to answer, in such manner that they may be 
 intelligibly distinguished. 
 
 1 151, (Added in 1849.) The defendant may demur to one or 
 more of several causes of action stated in the complaint, and answer 
 the residue. 
 
 § 153. (Added in 1849.) Sham answers and defences may be 
 stricken out on motion. 
 (Am'd in 1851.) 
 
 § 152. -(As am'd in 1851.) Sham ani vrrd&cant answers and 
 defenses may be stricken out on motion and i/pon such terms as the 
 cowrt maiy in thei/r discretion impose. 
 
 CHAPTER IV. 
 
 Sscnoir 53. Keply, when to he pnt In, and what to contain. 
 
 154. When defendant may move for judgment npon an answer. 
 
 155. Demurrer to reply. 
 
 § 153. (Being § 131 of 1848.) When the answer shall contain new 
 matter, the plaintiff may, within twenty days, reply to it, denying 
 particularly each allegation controverted by him, or any knowledge 
 thereof sufladent to form a belief; and he may allege, in ordinary 
 and concise langirage, without repetition, and in such a manner as 
 to enable a person of common understanding to know what is 
 intended, any new matter, not inconsistent with the complaint, in 
 avoidance of the answer. 
 
 (Am'd in 1849, 1851, 1853, 1855, 1857 and 1860.) 
 
 § 153. (As am'd in 1849.) When the answer shall contajo new 
 matter, -the' plaintiff may, within twenty days, reply to it, denying, 
 genevcXIy or particularly each allegation controverted' by him, or any 
 knowledge or informatmn thereof sufficient to form a belief; and 
 he may allege, in ordinary and concise language, without repetition, 
 
§ 153.] CODE OF PEOCEDUEB. 109 
 
 and in such a manner as to' enable a person of common understand'- 
 tog to know ■what is intended, any new matter, not mconsistent witli- 
 the complaint, m avoidance of the answer ; or of any defense set: wp 
 therein; or he may demur to the sa/me for insrwfflciency, stating in hi» 
 demv/rrer the grounds thereof; and the plamtiff may demur to one or 
 mare of several defenses set up in the answer , and repVy to the residue. 
 
 % 153. (As am'd m 1851.) When the answer contains new matter, 
 constiiuUng defense or set-off, the plamtiff may, within twenty days, 
 reply to such new mM&r, denymg spedfiegUy each allegation contro- 
 verted by him, according U> his Jmmeledge^^irtforination or hdief, or 
 any knowledge or information thereof sufBcient to form a belief; 
 and he may allege, in a plain amd concise manner, without unneces- 
 sary repetition, any new matter, not inconsistent with the complamt, 
 constituting a defense to such new matter in the amsmcer; or he may 
 demur to the same for msufflciency, statmg m his demurrer the 
 grounds thereof; and the plaintiff may demur to one or more of 
 several defenses a/nd set-off set up in the answer, and reply to the 
 residue. 
 
 § 158. (As am'd m 1853.) When the answer contains new matter 
 constituting a counterclaim, the plamtiff may, withm twenty days, 
 reply to such new matter, den^g generaHJy or specifically each alle- 
 gation controverted by him, or any knowledge or mformation 
 thereof sufficient to form a belief ; and he may allege, to ordinary 
 and concise language, without repetition, any new matter, not tocon- 
 sistent with the complatot, constituting a defense to such new mat- 
 ter in the answer ; or he may demur to the same for insufficiency, 
 Stattog to his demurrer the grounds thereof ; and the platotiff may 
 demur to one or more of several counterdavms set up to the answer, 
 and reply to the residue. 
 
 § 153. (As am'd to 1855.) When the answer contains new matter 
 constituting a counterclaim, the plamtiff may, withm twenty days, 
 reply to such hew matter, denytog generally or specifically each 
 allegation controverted by him, or any-knowledge or information 
 thereof sufficient to form a belief; and he may allege, to ordtoary 
 and concise language, any new matter, not mconsistent with the 
 complatot, constituttog a defense to such new matter to the answier; 
 amd the pUdnMff may, to all cases, demur to the answer for tostiffl- 
 10 
 
110 CODE OF PEOCEDUEB, [§§ 153, 154. 
 
 ciency, stating in his demurrer the grounds thereof ; and the plaintiff 
 may demur to one or more of several defenses or counterclaims set 
 up in the answer, and reply to the residue qf the eountercUmm. 
 
 § 153. (As am'd in 1857.) When the answer contains. new matter 
 constituting a counterclaim, the plaintiff may, within twenty days, 
 reply to such new matter, denying generally or specifically each 
 allegation controverted by him, or any knowledge or information 
 thereof sufficient to form a belief; and he may allege, in ordinary 
 and concise language, without repetition, any new matter, not incon- 
 sistent with the complaint, constituting a defense to such new mat- 
 ter in the answer ; and the plaintiff may, in all cases, demur to an 
 answer containing new matter, where, upon its face, it does not constitute 
 a counterclaim or defense j and the plaintiff may demur to one or 
 more of such defenses or counterclaims, and reply to the residue 
 of the counterclaims. 
 
 § 153. (As am'd in 1860.) When the answer contains new matter 
 constituting a counterclaim, the plaintiff may, within twenty days, 
 reply to such new matter, denying generally or specifically each 
 allegation controverted by him, or any knowledge or information 
 thereof sufficient to form a belief; and he may allege, in ordinary 
 and concise language, without repetition, any new matter, not incon- 
 sistent with the complaint, constituting a defense to such new mat- 
 ter in the answer ; and the plaintiff may, in all cases, demur to an 
 answer containing new matter, where, upon its face, it does not 
 constitute a counterclaim or defense ; and the plaintiff may demur 
 to one or more of such defenses or counterclaims, and reply to the 
 residue of the counterclaims. 
 
 And in other eases, when an answer contains new matter constituting 
 a defense ly way of acoida/nce, the court may, in its discretion, on the 
 defendant's motion, require a reply to such new mMter; and in thaJt 
 ease the reply shaU be Mject to the same rules as a repVy to a counter- 
 
 § 154. (Added in 1849.) If the answer contain a statement of new 
 matter constituting a defence, and the plaintiff fail to reply or demuf 
 thereto within the time prescribed by law, the defendant may move, 
 on a notice of not less than ten days, for such judgment as he is 
 entitled to upon such statement ; and, if the case require it, a writ 
 of inquiry of damages may be issued. 
 
 (Am'd in 1863.) 
 
§§ 154-156.] CODE OF PEOCEDUEE. Ill 
 
 § 154. (As am'd in 1863.) If the answer contain a statement of 
 new matter constituting a eounterdaim, and the plaintiff fall to 
 reply or demur thereto within the time prescribed by law, the 
 defendant may move, on a notice of not less than ten days, for such 
 judgment as he is entitled to upon such statement, and, if the case 
 require it, a writ of inquuy of damages may be issued. 
 
 § 155. (Added in 1849.) If a reply of the plaintiff to any defense 
 set up by the answer of the defendant be insuflBcient, the defendant 
 may demur thereto, and shall state the grounds thereof. 
 
 CHAPTER V. 
 Oeneral Rules of Pleading. 
 
 Sbctiok 156. No pleading but complaint, answer, reply and demnrrers. 
 
 157. Venfication of pleadings. 
 
 158. How to state an account in pleading. 
 
 159. Pleadings to be liberally construed. 
 
 160. Irrelevant or redundant matter to be stricken out. 
 
 161. Judgments, how to be pleaded. 
 
 162. Conditions precedent, bow to be pleaded. 
 
 163. Private statutes, how to be pleaded. 
 
 164. Libel and slander, how stated in complaint. 
 
 165. Answer in such cases. 
 
 166. In actions to recover property distrained for damage, answer need 
 
 not set forth title. 
 
 167. What causes of action may be joined in tbe^same action. 
 
 168. Allegation not denied, when to be deemed true. 
 
 (§ 133 of 1848.— Omitted m 1851. No other pleading shall be al- 
 lowed than the complaint, demurrer, answer and reply.) 
 
 § 156. (Being § 133 of 1848.) Every pleading must be subscribed 
 by the party, or his attorney; and the complaint, answer and 
 reply must be verified by the party, his agent or attorney, to the 
 effect that he believes it to be true. But the verification may be 
 omitted, when the party would be privileged from testifying as a 
 witness, to the same matter, and no pleading, verified as herein 
 required, shall be used in a criminal prosecution against the party, 
 as proof of a fact admitted or alleged in such pleading. 
 
 (Am'd in 1849 and 1851.) 
 
 § 156. (As am'd in 1849, being § 157 of that year.) Every plead- 
 ing in a court of record must be subscribed by the party or his 
 attorney ; and, when any pleading in a case shaU be verified by affidavU, 
 
1'12 PODE 01" PBOCBDUEB, [§ 156, 157. 
 
 aU subsequent pleadings, except Semwrrert, shall ie verified also ; and, 
 in, aUteasesof the verijlcaiion of a pleading, the affidamt of the pa/riy- 
 AaU state that thesame,is trvje.ef.hds own knowledge, except as to the 
 matters wMeh a/re therem stated, on his informoMon and Iditf, and as to 
 those mat^s that h^e leUems it to be true; amid, where a pleading is 
 ■verified, it shaU be by the affldamt ef the pa/rty, vMess he be absent from 
 the county where the attorney resides, or from some camse unable to verify 
 it, or th^e facts are within the knowledge of his attorney, or oifier person 
 verifying the same. When the pleaMng is verified by the attorney, or 
 amy other person except the pairty, he shcM set forth in the affidavit his 
 knowledge, or the grounds of his bdiefi, on the suigect, and the reasons 
 why it is not made by the party. 
 
 When a corporation is a party, the verification may be made by 
 any officer thereof; and when the State, or any officer thereof in its 
 behalf, is a party, the verification may be made by any person 
 acguainted with the facts, except that in actions prosecuted by the 
 attorney-general in behalf ^ the State, for tM recovery of real prop- 
 erty, the pieadings need not be verified. 
 
 § 156, (As am'd in 1851.) Every pleading in a court of record 
 must be subscribed by the party or his attorney; and, when any 
 pleading is verified, every subsequent pleading, except a dem/mrer, 
 must be verified also. 
 
 § 157. (Added in 1851.) The verification must be to the effect 
 that the same is true to the knowledge of the person making it, 
 except as to those matters stated on information and belief, and 
 as to those matters he believes it to be true, and must be by 
 the affidavit of the party; or, if there be several parties 
 united in interest, and pleading together, by one at least of 
 such parties acquainted with the facts, if such party be witliin 
 the county where the attorney resides, and capable of making 
 lie affidavit. The affidavit may also be made by the agent or 
 attorney, if the action or defense be founded upon a.written instru- 
 ment for the payment of money only, and such instrument be in the 
 possession of the agent or attorney, or if all the material allegations 
 of the pleading be within the personal knowledge of the agent or 
 attorney. When the pleading is verified by any other person than 
 the party, he shall set forth in the affidavit his knowledge, or the 
 grounds of his belief, on the subject, and the reasons why s noit it 
 
§ 158.] CODB OF PEOCEDUEE. 113 
 
 made bj the party. When a corporation is a party, the verification 
 may be made by any officer thereof; and when the State, or any 
 officer thereof in its behalf, is a party, the verification may be made 
 by any person acquainted with, the facts. The verification may be 
 omitted when an admission of the tnith of the allegation might sub- 
 ject the party to prosecution for felony. And no pleading can be 
 used in a criminal prosecution against the party as proof of a fact 
 admitted or alleged in such pleading. 
 
 ; (§ 134 of 1848. — Omitted m 1849. Neither presumptions of law 
 nor matters of which judicial notice is taken, need be stated in a 
 pleading.) 
 
 § 158. (Bemg § 135 -of 1848.) It shall not be necessary for a 
 party to set forth in a pleading the items of an account therein 
 alleged, where they exceed twenty in number; but he shall deliver 
 to the adverse party, within ten days after a demand thereof, in 
 writing, a copy of the account, verified by his own oath, or that of 
 his agent or attorney, to the effect that he believes it to be true, 
 or be precluded from giving evidence thereof. 
 
 (Am'd in 1849 and 1851.) 
 
 § 158. (As am'd in 1849.) It shall be necessary for a party to 
 set forth in a pleading the items of an account therein alleged, 
 but he shall deliver to the adverse party, within ten days after a 
 demand thereof, in writing, a copy of the account, verified by 
 his own oath, or that of his agent or attorney, to the effect that 
 he believes it to be true, or be precluded from giving evidence 
 thereof. TTie court, or a judge thereof, or a county judge, may order 
 a farther or more 'parUeuXofr Wl. 
 
 § 158. (As am'd in 1851.) It shall Twt be necessary for a party 
 to set forth in a pleading, the items of an account therein alleged, 
 but he shall deliver to the adverse party, within ten days after a 
 demand thereof, in writing, a copy of the account, which, if the 
 pleading is verified, must be verified by his own oath, or that of 
 his agent or attorney, if within tiie personal knowledge of such 
 agent or attorney, to the effect that he believes it to be true, or 
 be precluded from giving evidence thereof. The court, or a judge 
 thereof, or a county judge, may order a further accouni, when the 
 10* 
 
114: CODE OF PEOCBDURE. [§§ 159-162. 
 
 <me delivered is defeeUve, and the cowrt may, in aM cases, order a IM 
 of pa/rUeulars of the daim of either party to be fvmished. 
 
 § 159. (Being § 136 of 1848.) In the construction of a pleading, 
 for tte purpose of determining its effect, its allegation shall be 
 liberally construed, with a view to substantial justice between the 
 parties. 
 
 § 160. (Being § 137 of 1848.) If irrelevant or redundant matter 
 be inserted in a pleading, it may be stricken out, on motion of 
 any person aggrieved thereby. 
 
 (Am'd in 1849.) 
 
 § 160. (As am'd in 1849.) If irrelevant or redundant matter be 
 inserted in a pleading, it may be stricken out on motion of any 
 person aggrieved thereby. And, when the aMegaHons of a pleading 
 are so indefinite or uncertain that the precise nature of the charge or 
 defense is not apparent, the court mag require the pleading to be made 
 definite and certain by amendment. 
 
 1 161. (Being § 138 of 1848.) In pleading a judgment, or other 
 determination of a court, or officer of special jurisdiction, it shall 
 not be necessary to state the facts conferring jurisdiction, but such 
 judgment or determination may be stated to have been duly given 
 or made. If such allegation be controverted, the party pleading 
 shall be bound to establish, on the trial, the facts conferring 
 jurisdiction. 
 
 § 162. (Bemg § 139 of 1848.) In pleadmg the performance of con- 
 ditions precedent in a contract, it shall not be necessary to state 
 the facts showing such perfoimance ; but it may be stated, gen- 
 erally, that the party duly performed all the conditions on his.part ; 
 and, if such allegation be controverted, the party pleading shall be 
 bound to establish, on the trial, the facts showing such performance. 
 
 (Am'd in 1851.) 
 
 § 162. (As am'd in 1851.) In pleading the performance of con- 
 ditions precedent in a contract, it shall not be 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 
 
§§ 163-166.] CODE OP PROCEDTTEE. 115 
 
 such allegation be controverted, the party pleading shall be bound 
 to establish on the trial the facta showing such performance. In 
 an action or defense founded upon an instrument for the payment of 
 money only, it shaU be sufficient for a party to give a copy of tits instiru- 
 ment, amd to state that there is due to him thereon from the adverse 
 party a »peeifM sum which he daims. 
 
 § 163. (Being § 140 of 1848.) In pleading a private statute, or a 
 right derived therefrom, it shall be sufficient to refer to such statute 
 by Its title and the day of its passage, amd the court shall thereupon 
 take judicial notice thereof. 
 
 § 164. (Being § 141 of 1848.) In an action for libel or slander, it 
 shall not be necessary to state in the complaint any extrinsic facts, 
 for the purpose of showing the application to the plaintiflF of the 
 defamatory matter out of which the cause of action arose ; but it 
 shall be sufficient to state, generally, that the same was published or 
 spolsen concerning the plaintiff, and if such allegation be contro- 
 verted, the plaintiff shall be bound to establish, on trial, that it was 
 so published or spoken. 
 
 § 165. (Being § 143 of 1848.) In the actions mentioned in the last 
 section, the defendant may, in his answer, allege both the truth of 
 the matter charged as defamatory, and any mitigating circum- 
 stances, legally admissible in evidence, to reduce the amount of 
 damages ; and, whether he prove the justification or not, he may 
 give in evidence the mitigating circumstances. 
 
 (Am'd in 1849.) 
 
 § 165. (As am'd in 1849.) In the actions mentioned in the last 
 section, the defendant may, in his answer, allege both the truth of 
 the matter charged as defamatory, and any mitigating circum- 
 stances, to reduce the amount of damages ; and, whether he prove 
 the justification or not, he may give in evidence the mitigating 
 circumstances. 
 
 § 166, (Added in 1849.) In action to recover the possession of 
 property distrained 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, and that the 
 
116 CODE OF PEOCEDtTER. [§ lO"' 
 
 property distrained was at the time doing damage thereon, shall be 
 good, without setting forth the title to such real property. 
 
 § 167. (Being § 143 of 1848.) The plaintiff may unit« several causes 
 of-action in the same complaint, where they all arise out of 
 1. Contract, express or implied ; or 
 3. Injuries by force to person or property ; or 
 '3. Injuries without force, to person or property; or 
 4 Injuries to character ; or 
 
 5. Claims to recover real property, with or without damages for 
 the withholding thereof ; 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 of action, so united, must all belong to one only of 
 these classes, and must equally affect all the parties to the action, 
 and not require different places of trial. 
 
 (Am'd in 1849, 1852 and 1863.) 
 
 § 167. (As am'd in 1849.) The plaintiff may vCaite several causes 
 of action in the same complaint, where they all arise out of 
 1. Contract, express or implied; or 
 3. Injuries with or without force to the person; or 
 
 3. Injuries with or without force to property/ or 
 
 4. Injuries to character ; or 
 
 5. Claims to recover real property, with or without damages for 
 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 opera- 
 tion of law. 
 
 But the causes of action, so united, must all belong to one only 
 of these classes, and must affect all the parties to the action, and 
 not require different places of trial, amd must be separate!!/ stated. 
 
 § 167. (As am'd in 1852.) The plaintiff may unite in the same 
 complamt several causes of action, whether tluy be such as ham been 
 heire/b^om denominated legal or equitable, or both, where they all arise 
 out of 
 
§ 167.] CODS OF PEOCEDUEE. 117 
 
 1. The same tranaacUon, or transactions eonneeted with the same 
 tiulyeet of aetion; 
 
 %. Contract, express or implied; or 
 
 3. Injuries, with or witliout force, to person and property, or 
 either; or 
 
 4 Injuries to cliaracter; or 
 
 5. Claims to recover real property, with or without damages for 
 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. Clauns against a trustee, by virtue of a contract, or by opera- 
 tion of law. 
 
 But the causes of action, so united, must all belong to one of 
 these classes, and must aSegl all the parties to the action, and not 
 requu-e difiierent places of trial, and must be separately stated. 
 
 § 167. (As am'd in 1803.) The plaintilT may unite in the same 
 complaint several causes of action, whether they be such as have 
 been heretofore denominated legal" or equitable, or both, where they 
 all arise out of 
 
 1. The same transaction, or Iriinsnctions connected with the same 
 subject of action ; 
 
 3. Contmct, express or implied; or 
 
 3. Injuries with or without force, to person and properly, or 
 either; or 
 
 4. Injuries to character: or 
 
 5. Claims to recover real property, with or -without damages for 
 withholding thereof, and the rents and i>rofits of the same ; or 
 
 6. Claims to recover puisonal property, with or without damages 
 for the wilbhokling thereof; or 
 
 7. Claims against a Inislec, by virtue of a contract, or by opera- 
 tion of law. 
 
 But the causes of action, so united, must all belong to one of 
 these classes, and, except in- actions for tlie forecUmive of moi-tgageit. 
 must afifect all the parties to the action, and not requu-e different 
 places of trial, and must be separately stated. 
 
 In actions to foreclose morlgnges, the court shall have power to ad- 
 judge and direct the payment, by tlie mortgagor, of any residue of tlie 
 mortgage debt thai may remain unsatisfied after a sale of tlie maitgaged 
 
118 CODE OF PEOCEDtTRE. [§ 168. 
 
 premises, incases in whicJi the mortgagor shall oe personaUy liaMe for 
 the debt secured hy mch mortgage ; and if tlie mortgage debt be secured 
 by the covenant or obligation of any person other than the mortgagor, 
 the plaintiff may make such person a party to the action, and the 
 court may a^udge payment of the residue of such debt remaining 
 unsatisfied after a sale of the mortgaged premises agaisnt such other 
 person, andmuy enforce such judgm,^: as in other eases. 
 
 § 168. (Being § 144 of 1848.) Every material allegation of the 
 complaint, not specifiaUy controverted by the answer, as prescribed 
 in section 138 ; arid every material allegation of new matter in the 
 answer, not specifically controverted by the reply, as prescribed in 
 section 131, shall, for the purposes of the action, be taken as true. 
 But the allegation of new matter in a^^ply shall not in any respect 
 conclude the defendant, who may on the trial avail himself of any 
 valid objection to its sufficiency, or may countervail it by proofs, 
 either in direct denial or by way of avoidance. 
 
 Am'd in 1849 and 1852.) 
 
 § 168. (As am'd in 1849.) Every material allegation of the com- 
 plaint not specifically controverted by the answer, as prescribed in 
 section 149 ; and every material allegation of new matter in the 
 answer, not specifically controverted by the reply, as prescribed in 
 section 153, shall, for the purposes of the action, be taken as true. 
 But the allegation of new matter in a reply shall not in any respect 
 conclude the defendant, who may, on the trial, countei-vaU it by 
 proofs, either in direct denial or by way of avoidance. 
 
 § 16^. (As am'd in 1853.) Every material allegation of the com- 
 plaint, not controverted by the answer, as prescribed in section 149 ; 
 and every material allegation of new matter in the answer, consti- 
 tuting a counterclaim, not controverted by the reply, as prescribed 
 in section 153, shall, for thepurposes of the action, be taken as true. 
 But the allegation of new matter in the answer, not relating to a 
 counterclaim, or of new matter in a reply, is to be deemed controverted 
 by the adverse pa/rly as v/pon a direct deniaZ or advoidanoe, as the case 
 may require. 
 
§§ 16 9-1 71. J CODE OF PKOCEDUEB. 119 
 
 CHAPTER VI. 
 
 Mistakes m Pleading, and Amendments. 
 
 0EOTION 169. Katerial variances, how provided for. 
 
 no. Immaterial variances, how provided for. 
 171. What to be deemed a variance. 
 173. Amendments of conrse. 
 
 173. Amendments hy the court. 
 
 174. Amendment after demurrer. 
 
 175. Suing a party by a fictitious name, when allowed. 
 
 176. No error or defect to be regarded, unless it affect Bubstantial 
 
 rights. 
 
 177. Supplemental complaint, answer and reply. 
 
 § 169. (Being § 143 of 1848.) No variance between the allegation 
 in a pleading and the proof shall be deemed material, unless it have 
 actually misled the adverse party, to his prejudice, in maintaining 
 his action or defense, upon the merits. Whenever it shall be 
 alleged that a party has been so misled, that fact shall be proved to 
 the satisfaction of the court, by affidavit showing in what respect 
 he has been misled ; and thereupon the court may order the plead- 
 ing to be amended, upon such terms as shall be just. 
 
 (Am'd in 1849.) 
 
 § 169, (As am'd in 1849.) No variance between the allegation 
 in a pleading and the proof shall be deemed material, unless it have 
 actually misled the adverse party, to his prejudice, in maintaining 
 his action or defense, upon the merits. "Whenever it shall be alleged 
 that a party has been so misled, that fact shall be proved to the 
 satisfaction of the court, and in what respect he has been misled ; 
 and thereupon the court may order the pleading to be amended, 
 upon such terms as shall be just. 
 
 § 170. (Being § 146 of 1848.) Where the variance is not mate- 
 rial, as provided in the last section, the court may direct the fact to 
 be found according to the evidence, or may order an immediate 
 amendment, without costs. 
 
 § 171. (Being 1 147 of 1848.) Where, however, the allegation of 
 the cause of action or defense to which the proof is directed is un- 
 proved, not in some particular or particulars only, but in its entire 
 scope and meaning, it shall not be deemed a case of variance, within 
 the last two sections, but a failure of proof. 
 
120 CODE OF PEOCEDUEEl [ [§ l'^2, 
 
 § 173. (Being § 148 of 1848.) Any pleading may be amended by 
 the party, of course, without costs, and without prejudice to the 
 proceedings already had, at any time before the period for answer- 
 ing it shall expire. In such case, a copy of the amended pleading 
 shall be served on the adverse party. 
 
 (Am'd in 1849, 1851 and 1859.) 
 
 § 172. (As am'd in 1849.) Any pleading may be onee amended by 
 the party, of course, without costs, and without prejudice to the 
 proceedings already had, at any time before the period for answer- 
 ing it shall expire, or within twenty da/ys after the answer to such 
 pleading shaU he served. In such case, a copy of the amended 
 pleading shall be served on the adverse party.; 
 
 § 173. (As am'd in 1851.) Any pleading may be once amended by 
 the party, of course, without costs, and without prejudice to the 
 proceedings already had, at any time before the period for answer- 
 ing it expires ; or it can be so amended at any time within' twenty 
 days after the service of the answer, or demurrer to such pleading, 
 urUess it be made to appeair to the court that it was done for tlve 
 purposes of ddwg, and the plaintiff or defendant will thereby lose 
 ifie benefit of a dreuit or term for which the cause is or may be 
 7u>Ueed, and, if it appea/r to the court that such amendmentwaa made 
 for mich pwrpose, the smne may be stricken out and such terms 
 imposed as to the court may seem, just. In such case, a copy of the 
 amended pleading must be served on the adverse party. After the 
 decision of d demurrer, either at a general or specuA term, the court 
 may, in its disoretion, if it appear that the demurrer was interposed 
 in good faith, aWmo the pa/rty to plead over upon ntch terms as may 
 be just. If the demwrrer be aUotced for the cause mentioned in the 
 fifth suMivision of section 144, the cowrt may, in its discretion, and 
 upon such terms as may be just, order the action to be divided into 
 as many actions as may be necessary to the proper determination of 
 the causes of auction therein memtumed. 
 
 § 172, (As am'd in 1859.) Any pleading may be once amended 
 by the party, of course, without costs, and without prejudice to 
 the proceedings already had, ai,. amy Inme within twenty days 
 after it is served, or at any time before the period for answer- 
 ing it expires; or, it can Ijie so amended at any time within 
 
§ 1^3.] CODE OP PEOCEDUBB. 121 
 
 twenty days after the service of the answer or demurrer 
 to such pleadmg, unless it be made to appear to the 
 court that it was done for the purposes of delay, and the 
 plaintiff or defendant will thereby lose the benefit of a circuit or 
 term for which the cause is or niay be noticed; and, if it appear to 
 the court that such amendment was made for such purpose, the 
 same may be stricken out and such terms imposed as to the court 
 may seem just. In such case a copy of the amended pleading must 
 be served on the adverse party. After the decision of a demurrer, 
 either at a general or special term, the court may, in its discretion, 
 if it appear that the demurrer was interposed in good faith, allow 
 the party to plead over upon such terms as may be just. If the 
 demurrer be allowed for the cause mentioned in the fifth sub- 
 division of section 144, the court may, in its discretion, and upon 
 such terms as may be just, order the action to be divided into as 
 many actions as may be necessary to the proper determination of 
 the causes of action thereia mentioned. 
 
 § 173. (Being § 149 of 1848.) The court may, at any time, in fur- 
 therance of justice^ and on such terms as may be proper, amend any 
 pleading or proceeding, by adding or striking out the name of any 
 party, or a mistake in any other respect, or by inserting other alle- 
 gations material to the case, or by conforming the pleading or pro- 
 ceeding to' the facts proved, whenever the amendment shall not 
 change substantially the cause of action or defense. 
 
 (Am'd in 1849, 1851 and 1852.) 
 
 § 173. (As am'd in 1849.) The court may, at any time, in further- 
 ance of justice, and on such terms as may be proper, amend any 
 pleading or proceeding, by adding or striking out the name of any 
 party, or by correcting a mistake in the name of a party, or a mis- 
 take in any other respect, or by inserting other allegations material 
 to the case ; or by conforming the pleading or proceeding to the 
 facts proved. 
 
 Ths court may Uhewiie, in its discretion, aUow an answer or reply 
 to be made, or other act to be done, after the time limited by this act, or 
 by an order enlarge such time, and may also, at any tints within 
 one yea/r after Tiotice thereof, reliem a party from a judgment, order 
 or other proceediTig, taken against Mm through, his mistake, inad- 
 vertence, surprise or eaccusable neglect; and nuiy suj^pty an omit- 
 
122 CODE OF PEOCEDUEB. [§§ 173,174, 
 
 pwty faik to conform in any respects to the prmisums of this act, 
 the court shaXL have power to permit an amendment of such proeeedr- 
 ing, so as to make it conformaUe to km. 
 
 § 173. (As am'd m 1851.) The court may, before or after jud^- 
 mertt, in furtherance of justice, and on such temis as may be 
 proper, amend any pleading or proceeding, by adding or striking 
 out the name of any party, or by correcting a mistake in the 
 name of a party, or a mistake in any other respect, or by insert- 
 ing other allegations material to the case, when the amendment 
 does not eha/nge substantially the daim or defense, by conforming 
 the pleading or proceeding to the facts proved. 
 
 § ITS, (As am'd in 1853.) The court may, before or 
 after judgment, in furtherance of justice, and on such terms 
 as may be proper, amend any pleading, process or proceeding, 
 by adding or striking out the name of any party, or by 
 correcting a mistake in the name of a party, or a mistake in 
 any other respect, or by inserting other allegations material 
 to the case, or, when the amendment does not change substantially 
 the claim or defense, by conforming the pleading or proceeding to 
 the facts proved, 
 
 § 174. (Added in 1849.) After demurrer, either party, may amend 
 any pleading demurred to pf course, and without costs, on serving , 
 a copy of the same, as amended, within twenty days, on the adverse 
 party, who shall have twenty days to answer, reply or demur 
 thereto, if the pleading amended be a complaint or answer, or demur 
 thereto if it be a reply ; but a party shall not so amend more than 
 once. Upon the decision of a demurrer, the court may, upon such 
 terms as shall be just, allow any party to withdraw the same and 
 plead over. 
 
 (Am'd in 1851.) 
 
 §174, (As am'd in 1851.) The court may likewise, in its discretion,- 
 and upon such terms eis may be just, allow an answer or reply to be 
 made, or other act to be done, after the time limited by this act, or, 
 by an order, enlarge such time ; and may also, in its discretion, and 
 upon such terms as may be just, at any time within one year after 
 notice thereof, relieve a party from a judgment, order, or other pro- 
 ceeding, taken against him through his mistake, inadvertence, sur- 
 prise, or excusable neglect ; and may supply an omission in any 
 
§§ llS-lll.'i CODE OF PEOOEDTTEE. 123 
 
 proceeding ; and whenever any proceeding taken by a party fails 
 to conform in any respect to the provisions of this code, the court 
 may, in like manner and upon like terms, permit an amendment of 
 such proceeding, so as to make it conformable thereto. 
 
 § 175. (Being § 150 of 1848.) "When the plamtiff shall be igno- 
 rant of the name of a defendant, such defendant may be designated 
 in any pleading or proceeding by any name ; and when his true 
 name shall be discovered, the pleading or proceeding may be 
 amended accordingly. 
 
 § 176. (Being § 151 of 1848.) The court shall, in every stage of 
 an action, disregard any error or defect in the pleadings or proceed- 
 ings which shall not affect the substantial rights of the adverse 
 party ; and no judgment shall be reversed or affected by reason of 
 such error or defect. 
 
 § 177. (Being § 152 of 1848.) The plaintiff and defendant, respect- 
 ively, may be allowed, on motion, to make a supplemental com- 
 plaint, answer or reply, alleging facts material to the case, occurring 
 after the former complaint, answer or reply. 
 
 (Am'd in 1849, and 1866.) 
 
 § 177. (As am'd in 1849.) The plaintiff and defendant, respectively, 
 may be allowed, on motion, to make a supplemental complaint, 
 answer, or reply, alleging facts material to the case, occurring after 
 the former complaint, answer, or reply, or of wMch ihe party was 
 ignorant when Ms former pleading was made. 
 
 % 177. (As am'd in 1866.) The plaintiff and defenda^nt, respect- 
 ively, may be allowed, on motion, to make a supplemental com- 
 plaint, answer or reply, alleging facts material to the case, occurring 
 after the former complaint, answer or reply, or of which the party 
 was ignorant when his former pleading was made, and^ either pa/rty 
 may, Tty home of the court, in any pending or future action, set up by 
 mipplemental pleading, the judgment or decree of any court of competent 
 juHsdieUon, rendered since the cormneneement of such acHon, determin- 
 ing the matters in controversy in said action, or any part thereof, amd 
 if said judgment he set up by the plaintiff, the same shaU he without 
 pr^udice to any provisional remedy theretofore issued, or ofJier pro- 
 eeedingi had in said action, on his behalf. 
 
124 CODK OF PEOCEDUBB. [§§ llTS, 119, 
 
 TTTIiE Vn. 
 
 Of the ProvmoncU Bemedies in Ciml Actions. 
 
 ChaptbbI. Arrest and bail. 
 
 n. Claim and delivery of personal property, 
 m. Injunction. 
 IV. Attachment, 
 y. FrovlBional remedies. 
 
 CHAPTER I. 
 Arrest and BaU. 
 
 Skctiok 178. No person to be arrested, except as prescribed by this act 
 
 179. Cases in which defendant may be arrested. 
 
 180. Order for arrest, by whom made. 
 
 181. Affidavit to obtain order ; to what actions this chapter applicable. 
 183, Secnrity by plaintiff, before order for arrest. 
 
 183. Order, when made, and its form, 
 
 181. Affidavit and order to be delivered to sheriff, and copy to defendants. 
 
 185. Arrest, how made. 
 
 186. Defendant to be discharged on bail or deposit, 
 
 187. Bail, how given. 
 
 188, 189. Surrender of defendant. 
 
 190. Bail, how proceeded against 
 
 191. Bail, how exonerated. 
 
 193. Delivery of undertaking to plaintiff, and its acceptance or rejection 
 by him. 
 
 193. Notice of justification ; new undertaking, if other bail. 
 
 194. QualiflcationB of bail. 
 
 195, 196. Justification and allowance of bail. 
 
 197. Deposit of money with sheriff. 
 
 198. Payment of money into court by sheriff, 
 
 199. Snbstitnting bail for deposit. 
 
 300. Money deposited, how applied or disposed of. 
 
 301. Sheriff, when liable as bail, and his discharge from liability. 
 303. Proceedings on judgment against sheriff. 
 
 303. Bail liable to sheriC 
 
 304. Motion to vacate order of arrest or reduce bail. 
 205. Affidavits on motion. 
 
 § 178. (Being § 153 of 1848.) ITo person shall be arrested in a 
 civil action except as prescribed by this act; but this proTision 
 shall not affect the act to abolish imprisonment for debt, and to 
 punish fraudulent debtors, passed April 26, 1831, or any act amend- 
 ing the same, nor shall it apply to proceedings for contempts. 
 
 § 179.. (Being § 154 of 1848.) The defendant may be arrested, as 
 hereinafter prescribed, in the following cases : 
 
 1. In an action for the recovery of damages, on a cause of action 
 not arising out of contract. 
 
§ 1^9.] CODE OF PEOCBDUEB. 126 
 
 2. In an action for a fine or penalty, or on a promise to many, or 
 for moneys collected by a public officer or by an attorney, solicitor 
 or counselor, in the com-se of his employment as such, or by any 
 person in a fiduciary capacity, or for any misconduct or neglect in 
 office, or in a professional employment 
 
 3. In an action to recover the possession of personal property 
 unjustly detained, where the property shall not have been delivered 
 to the plaintiff or security given therefor, as provided in the next 
 chapter. 
 
 But no female shall be arrested, in an action arising on contract, 
 or in any other action, except for a wiUful injury to person, charac- 
 ter or property. 
 
 (Am'd in 1849, 1851 and 1863.) 
 
 § 179. (As am'd in 1849.) The defendant may be aixested as here- 
 inafter prescribed, in the following cases : 
 
 1. In an action for the recovery of damages, on a cause of 
 action not arising out of contract, wJiere the defemdamt is not a 
 t-esident of the State, or is about to remove therefrom, or where the 
 acUon is for an injury to person or ciiaracter, or for injuring, or 
 for wrongfiMy taking, detaining or converting property. 
 
 2. In an action for a fine or penalty, or on a promise to marry, 
 or for money receiiied, or property embezsled or fratidulenMy misap- 
 plied, by a public officer or by an attorney, solicitor or coun- 
 selor, or by an officer or agent of a corporation, or banking association, 
 in the course of his employment as such, or by any factor, agent, 
 broker or other person in a fiduciary capacity, or for any miscon- 
 duct or neglect in office, or in a professional employment. 
 
 3. In an action to recover the possession of personal propei-ty 
 imjustly detained, where the property, or any part thereof, has been 
 eoneealed, removed or disposed of, so thai it cannot be found or taken 
 by the sheriff. 
 
 4. When the defendant has been gwUty of a fraud in contacting 
 the debt^or incurring the obligation for which the action is brought, 
 or in concealing or disposing of the property, for the taking, deten- 
 tion or conversion of which the action is brought. 
 
 5. When the defendant has renumed or disposed of his property, or is 
 about to do so, with intent to defraud his creditors. 
 
 But no female shall be arrested in any action except for a 
 
126 • CODE OF PEOCEDtTEB. [§§179,180. 
 
 § 179. (As am'd in 1851.) The defendant may be arrested, as 
 hereinaftpr prescribed, in the following cases: 
 
 1. In an action for the recovery of damages, on a cause of 
 action not arising out of contract, where the defendant is not a 
 resident of the State, or is about to remove therefrom, or where 
 the action is for an injury to peraon or character, or for injuring, 
 or for wrongfully taldng, detaining or converting property. 
 
 3. In an action for a fine or penalty, or on a promise to marry, 
 or for money received, or property embezzled or fraudulently 
 misapplied, by a public oflScer or by an attorney, solicitor or 
 counselor, or by an officer or agent of a corporation, or banking 
 association, in the course of his employment as such, or by any 
 factor, agent, brolier, or other person in a fiduciary capacity 
 or for any misconduct or neglect in office, or in a professional 
 employment. 
 
 3. In an action to recover the possession of personal property 
 unjustly detained, where the property, or any part thereof, has' 
 been concealed, removed or disposed of, so that it cannot be 
 found or taken by the sheriff, wnd with the intent that it should not 
 be so found, or taken, or with the intent to dep/rim the ;plainUff of 
 the benefit thereof. 
 
 4. When the defendant has been guilty of a fraud, in contracting 
 the debt, or incurring the obligation for which the action is brought, 
 or in concealing or disposing of the property, for the taking, deten- 
 tion or conversion of which the action is brought. 
 
 5. When the defendant has removed, or disposed of his property, 
 or is about to do so, with intent to defraud his creditors. 
 
 But no female shall be arrested, in any action, except for a wiUful 
 injury to person, character or property. 
 
 179. (As am'd in 1863.) Same as §179 as amended in 1851, eicept 
 in subdivision 4, which was amended so as to read as follows : 
 
 4. When the defendant has been guilty of a fraud, in contract- 
 ing the debt, or incurring the obligation for which the action is 
 brought, or in concealing or disposing of the property, for the 
 taking, detention or conversion of which the action is brought, or 
 when the acUon is brought to recover dommges for fraud cr deceit. 
 
 § 180. (Being § 155 of 1848.) An order for the arrest of the 
 defendant must be obtained from a judge of the court in which 
 the action is brought, or from a county judge. 
 
§§ 181, 182.] CODE OP PKOCEDUBB. 121 
 
 § 181. (Being § 156 of 1848.) The order may be made where it 
 shall appear to the judge, by the affidavit of the plaintifif, or of 
 any other person, that a sufficient cause of action exists, and 
 (excepting in the cases mentioned in the second subdivision of sec- 
 tion 154), that the defendant is not a resident of the State, or is 
 about to remove there&om. 
 
 (Am'd in 1849.) 
 
 § 181. (As am'd in 1849.) The order may be made where it shall 
 appear to the judge, by the affidavit of the plaintifT, or of any other 
 person, that a sufficient cause of action exists, and that tlie case is 
 one of those mentioned in section 179. 
 
 The protmons of tTds clw/pter shall apply to aU actions included 
 within the provisions of section 179, which shaU ham been commenced 
 since the tlUriieth day of June, one th/msand mghi, hundred and forty- 
 eight, and in which judgment shaU not have been obtained. 
 
 § 182. (Being §157 of 1848.) Before making the order, the judge 
 shall require a written undertaking on the part of the plaintiff, with or 
 without sureties to the effect, that if the defendant recover judgment, 
 the plaintiff will pay all costs that may be awarded to the (Jefendant, 
 and all damages which he may sustain by reason of the arrest, not 
 exceeding the sum specified in the undertaking, which shall be at 
 least two hundred and fifty dollars. If the undertakuig be executed 
 by the plaintiff, without sureties, he shall annex thereto an affidavit 
 that he is a resident and householder or freeholder within the State, 
 and worth double the sum specified in the imdertaking, over all his 
 debts and liabilities. 
 
 (Am'd in 1849.) 
 
 § 182. (As am'd in 1849.) Before making the order, the judge 
 shall require a written undertaking on the part of the plaintiff, with 
 or without sureties, to the effect that, it the defendant recover judg- 
 ment, the plaintiff will pay all costs that may be awarded to the 
 defendant, and all damages which he may sustain by reason of the 
 arrest, not exceeding the sum specified in the undertaking, which 
 shall be at least one hundred dollars. If the undertaking be executed 
 by the plaintiff, without sureties, he shall annex thereto an affidavit 
 that he is a resident and householder or freeholder within- the State, 
 and worth double the sum specified in the undertaking, over all his 
 debts and liabilities. 
 
128 CODJi OF PEOCEDUEK. [§§183-186. 
 
 -§ 183. (Being § 158 of 1848.) The order may be miwle at the time 
 of commencing the action) or at any time afterwards, before judg- 
 ment. It shall require the sheriff of the county, -where the def endaiit 
 may be found, forthwith to arrest him and hold him to bail ia a specie , 
 fied sum, and to return the same, at a time and place therein men- 
 tioned, to the plaintiff or attorney by whom it shall be subscribed 
 or indorsed. 
 
 (Am'd in 1849 and 1863.) 
 
 § 183. (As am'd in 1849.) The order may be made to aecompany 
 the summons, or at any time afterwards, before judgment. It shall 
 require the sheriff of the county; where the defendant may be 
 found, forthwith to arrest him and hold him to bail in a specified 
 sum, and to return the order at a time and place therein mentioned, 
 to the plaintiff or attorney by whom it shall be subscribed or 
 indorsed. 
 
 § 183. (As am'd in 1863.) The order may be made to accompany 
 the summons, or at any time afterwards, before judgment. It shall 
 require the sheriff of the county, where the defendant may be 
 fouud, forthwith to arrest him and hold him to bail in a specified 
 sum, and to return the order at a time and place therein mentioned, 
 to the plaintiff -or attorney by whom it shall be subscribed or 
 indorsed. Bui said order of arrest shall ieofno avail, and shaU be 
 vacated or set aside on motion, unless the same is served upon the defend- 
 ant at provided iy lam, before the docketing of any judgment in the 
 action, and the defendant shaU have twenty days after the sermee of the 
 order of arrest in which to answer the complmnt in tTte action, and to 
 Toove to vacate the order ofa/rre^, or to reduce the'am&unt of bail. 
 
 § 184. (Bemg § 159 of 1848.) The affidavit and order of arrest 
 shall be delivered to the sheriff, who, upon arresting the defendant, 
 shall deliver to him a copy thereof. 
 
 § 185. (Being § 160 of 1848.) The sheriff shall execute the order, 
 by arresting the defendant and keeping him in custody, until dis- 
 c arged by law ; and may call the power of the country to his aid, 
 in the execution of the arrest as in case of process. 
 
 § 186. (Being § 161 of 1848.) The defendant, at any time before 
 execution shall be dischaxged from the arrest, either upon giving bail, 
 
§§ 186, 18V.] CODE OF PROCEDUEB. 129 
 
 or upon depositing the amount mentioned in the order of arrest, as 
 provided in this chapter. 
 (Am'd in 1870.) 
 
 § 1S6. (As am'd in 1870.) The defendant, at any time before 
 execution, shall be discharged from the arrest, either upon giving 
 bail, or upon depositing the amount mentioned in the order of 
 arrest, as provided in this chapter. 
 
 The defendant may gine hail whenever arrested, at any hour of the 
 day or night, and ahaU haiie reasoruMe opportunity to procure it, before 
 being committed to prison. 
 
 § 187. (Being § 162 of 1848.) The defendant may give baU by 
 causing a ■written undertaking to be executed by two or more sufB- 
 cient bail, stating their places of residence and occupations, to the 
 effect that the defendant shall at all tunes 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. 
 
 (Am'd in 1849.) 
 
 § 187. (As am'd in 1849.) The defendant may give bail, by caus- 
 ing a written undertaking to be executed by two or more sufBcient 
 bail, stating their places of residence and occupations, to the effect 
 that the defendant shall 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, or if he be wrrested 
 for the cause menUoned in the third mbdivision of section 179, omd 
 undertaking to the same effect as that provided by section 211. 
 
 § 188. (Being § 163 of 1848.) At any time before a failure to com- 
 ply with their undertaking, the bail may surrender the defendant in 
 their exoneration, or he may surrender himself to the sheriff of the 
 county where he was arrested, in the following maimer : 
 
 1. A certified copy of the undertaking of the bail shall be deliv- 
 ered to the sheriff, who shall detain the defendant in his custody 
 thereon, as upon an order of arrest, and shall, by a certificate in 
 writing, acknowledge the surrender. 
 
 2. Upon the undertaldng and sheriff's certificate, a judge of the 
 court, or cotmty judge, may, upon notice to the plaintiff of eight 
 days, with a copy of the undertaking and certificate, order that the 
 baU be exonerated; and, on filing the order and the papers used on 
 snch application, they shall be exonerated accordingly. 
 
 (Am'd in 1849 and 1851.) 
 
130 CODE OF PEOOEDUBB. [§§ 188-191. 
 
 § 188. (As am'd in 1849.) Same as § 188, as passed in 1848, to 
 sub. 2, and from thence as follows : 
 
 2. Upon the produetidn of a copy of the undertaking and sheriff's 
 certificate, a judge of the court, or covmty judge, may, upon a notice 
 to the plaintiff of eight days, with a copy of the certificate, order 
 that the bail be exonerated ; and, on filing the order and papers used 
 on such application, they shall be exonerated accordingly. But this 
 section thaU not apply to an arrest for the cause mentioned in the third 
 subdivision of section 179. 
 
 § 188. (As am'd in 1851.) At any time before a failure to com- 
 ply with the undertaking, the bail may surrender the defendant 
 in their exoneration, or he may surrender himself to the sheriff of 
 the county where he was arrested, in the following manner : 
 
 1. A certified copy of the undertaking of the bail shall be deliv- 
 ered to the sheriff, who shall detain the defendant in his custody 
 thereon, as upon an order of arrest, and shall, by a certificate iu 
 writing^- acknowledge the surrender. 
 
 3. Upon the production of a copy of the undertaking and sheriff's 
 certificate, a judge of the court, or county judge, may, upon a notice 
 to the pl^tiff of eight days", with a copy of the certificate, order 
 that the bail be exonerated ; and, on filing the order and the papers 
 used on said application, they shall be exonerated accordingly. 
 But this, section shall not apply to an arrest for cause mentioned in 
 subdivision 3 of section 179, so as to diseha/rge the hml from an under- 
 taking given to the effect provided by section 211. 
 
 § 189. (Being § 164 of 1848.) For the purpose of surrendering 
 the defendant, the baU, at any time or place, before they are finally 
 charged, may themselves arrest him, or, by a written authority 
 indorsed on a certified copy of the imdertaldng, may empower any 
 person of suitable age and discretion to do so. 
 
 § 190. (Being § 165 of 1848.) In case of failure to comply with 
 the undertaking Ibe bail may be proceeded against by action only. 
 
 § 191. (Bemg § 166 of 1848.) The bail may be exonerated, either 
 by the death of the defendant or by his legal discharge from the 
 obligation to render himself amenable to the process, or by his sur- 
 render to the sheriff of the county where he was arrested, in execu- 
 
§§ 191-193.] CODE OP PRO'CEDUEB. 131 
 
 tion thereof, ■within twenty days after the commencement of the 
 action against the bail, or witliin such further time as may he granted 
 by the coiirt 
 (Am'd in 1849.) 
 
 § 191. (As am'd in 1849.) The bail may be exonerated, either by 
 the death of the defendant or Tm imprisonment in a Stale prison, or 
 by his legal discharge from the obligation to render himself ame- 
 nable to the process, or by his surrender to the sheriff of the county 
 ■where he ■was arrested, in execution thereof, ■within twenty days 
 after the commencement of the action against the baU, or within 
 such further time as may be granted by the court 
 
 § 193. (Being § 167 of 1848.) Within the time limited for that 
 purpose, the sheriff shall deliver the order of arrest to the plaintiff 
 or attorney by whom it is subscribed, with his return indorsed, and 
 the undertaking of the bail. The plaintiff, •within ten days there- 
 after, may return the undertaking to the sheriff, with a notice that 
 he does not accept it, or he shall be deemed to have accepted it, 
 and the sheriff shall be exonerated from liability. 
 
 (Am'd in 1849.) 
 
 § 192. (As am'd in 1849.) "Within the time limited for that pur- 
 pose the sheriff shall deliver the order of arrest to the plaintiff or 
 attorney by whom it is subscribed, ■with his return indorsed, and 
 a eerUfied copy of the undertaking of the bail. The plaintiff, -witliin 
 ten days thereafter, may serve upon the sheriff a notice that he does 
 not accept the bail, or he shall be deemed to have a<;cepted it, and 
 the sheriff shall be exonerated from liability. 
 
 § 193. (Being § 168 of 1848.) On the receipt of the undertaking 
 and notice, the sheriff or defendant may, within ten days thereafter, 
 giv« to the plaintiff or attorney by whom the order of arrest is sub- 
 scribed, notice of the justification of the same, or orther bail (speci- 
 fying the places of residence and occupations of the latter), before 
 a judge, at a specified time and place ; the time to be not less than 
 five nor more than ten days thereafter. In case other bail be 
 given, there shall be a new uiidertaking, in the form prescribed in 
 section 163. 
 
 (Am'd in 1849 and 1851.) 
 
 § 193. (As am'd in 1849.) On the receipt of such copy of the under- 
 taking and notice, the sheriff or defendant may, within ten days 
 
132 CODE OF PEOCEDUEB. [§§193,19^. 
 
 thereafter,. give ta the. plaintiff «r attorney by Wham the order erf 
 arrest ,1s ^ubseribed, 'notice of the justification of the same, or other 
 bail (specifying the places of residence and occupations of .the latter); 
 before a judge <ff the court or county judge, or jtistice cf the, peace, 
 at a specified time and place ; the time to be not less than fire nor 
 more than ten days thereafter. In case other bail be given, there 
 shall be a new undertaldng, in the form pt-escribed in section 187. 
 
 § 193. (As am'd in 1851.) On the receipt of such notice the 
 sheriff 1 or defendant may, -within ten days thereafter, give to the 
 plaintiff or attorney by whom the order of arrest is subscribed, 
 notice of tJie justification of tlie same, or other bail (specifying the 
 places of residence and occupation of the latter),.bef ore a judge of 
 the court, or county judge, at a specified time and place ; the time 
 to be not less than five nor more than ten days thereafter. In case 
 other bail be given, there shall be a new undertaking, in the form 
 prescribed in section 187. 
 
 § 194 (Being § 169 of 1848.) The qualifications of bail must be 
 as follows : 
 
 1. Each of them must be a resident and householder or fi-eeholder, 
 within the State. 
 
 2. They must each be Worth the amount specified in the order of 
 arrest, exclusive of properly exempt ft-om execution; but the judge, 
 on justification, may allow more than two bail to justify severally 
 in amounts leas than that expressed in the order. If the whole justi- 
 fication be equivalent to that of two suflScient bail. 
 
 (Am'd in 1849.) 
 
 § 194. (As am'd in 1849.) The qualifications of bail must be as 
 follows : 
 
 1. Each of them must be a resident and householder or freehoMer, 
 within the State. ^ 
 
 8. They must each be worth the amount specified in 'the order of 
 arrest, exclusive of property exempt ft'om execution, but the judge, or 
 a justice of thepeade, on justification, may allow more than two bail 
 to justify severally in amounts less than that expressed in the order, if 
 the whole justification be lequivalent to that of two sufficient bail. 
 
 § 195. (Being | 170 of 1848.) For the purpose of justification, 
 each of the bail shall attend before the judge, at the time and place 
 
§§ 195-198.] CODE OF PEOCEDUEB. 133 
 
 mentioned in: the notice, and may be examined on oath, on the part 
 of the plaintiff, touching his sufficiency, in such manner as the 
 judge,' in his -discretion, may think proper. . The examination shall 
 he reduced to writing and subscribed by -the bail. 
 (Am'd in 1849.) 
 
 § 195, (As am'd in 1849.) For the purpose of justification, each 
 of the baU shall attend before the judge, or a justice of the peace, at 
 the time and place mentioned in the notice, and may be examined 
 on oath, on the part of the plaintiff, touching his sufficiency, in such 
 manner as the judge, or justice of the peace, in his discretion, may 
 think proper. The examination shall be ^reduced to -writing and 
 subscribed by the bail, if reguired by the pUmMff. 
 
 § 196. (Being § 171 of 1848.) If the judge find the bail sufficient, 
 he shall annex the examination to the undertaking,' endorse his 
 allowance thereon and deliver the same to the plaintiff, or cause 
 them to be :filed ; and the sheriff shall thereupon be exonerated from 
 liability. 
 
 (Am'd in 18^.) 
 
 § 190. (As am'd in 1849.) If the judge, w jusiiee<^ the peace, 
 find the bail sufficient, he shall annex the examination to the under- 
 taking, indorse his allowance thereon, ami cause them to be filed 
 with the clerk; and the sheriff shall thereupon be exonerated firom 
 liability. 
 
 § 197. (Being § 172 of 1848.) The defendant may, at the time of 
 his arrest, instead of giving bail, deposit -with the sheriff the amount 
 mentioned in the order. The sheriff shall thereupon ^ve the de- 
 fendant a certificate of the deposit, and the defendant shall be dis- 
 charged out of custody. 
 
 § 198. (Being § 173 of 1848.) The sheriff shall, within four days 
 after the deposit, pay the same into court ; and shall receive from 
 the clerk two certificates of such payment, the one of which he shall 
 deliver tithe plaintiff, and the other to the defendant. For any 
 default in making such payment, the same proceedings may be 
 had on the official bond of the sheriff to collect the sum deposited 
 as in other cases of delinquency. 
 
 (Am'd in 1849.) 
 12 
 
134 GODB OP PEOCEDUEB. [§§ 198-201. 
 
 § 19§. (As am'd in 1849.) The sherifi shall, within four days after 
 the deposit, pay the same into court ; and shall take from the officer 
 receimng the same two certificates of such payment, the one of 
 which he shall deliver to the plaintiff, and the other to the defend- 
 ant. For any default in making such payment, the same proceed- 
 ings may be had on the official bond of the sheriff to collect the 
 sum deposited as in other cases of delinquency. 
 
 § 199. (Being § 174 of 1848.) If money be deposited, as provided 
 in the last two sections, bail may be given and justified upon notice, 
 as prescribed in section 168, any time before judgment ; and there- 
 upon the judge before whom the justification is had shall direct, 
 in the order of allowance, that the money deposited be refunded 
 by the sheriflf to the defendant, and it shall be refunded accordingly. 
 
 (Am'd in 1849.) 
 
 § 199. (As am'd in 1849.) If money be deposited, as provided in 
 the last two sections, bail may be given and justified upon notice, 
 as prescribed in section 193, any time before judgment ; and there- 
 upon the judge before whom the justification is had, shall direct, 
 in the order of allowance, that the money deposited be refunded by 
 the sheriff to the defendant, and it shall be refunded accordingly. 
 
 § 20O, (Being § 175 of 1848.) Where money shall have been so 
 deposited, if it remain on deposit at the time of an order or judg- 
 ment for the payment of money to the plaintifl", the clerk shall, 
 imder the direction of the court, apply the same in satisfaction 
 thereof, and, after satisfying the judgment, shall refund the surplus, 
 if any, to the defendant. If the judgment be in favor of the de- 
 fendant, the clerk shall refund to him the whole sum deposited and 
 remaining unapplied. 
 
 § 301. (Being § 176 of 1848.) If, after being arrested, the defend- 
 ant escape or be rescued, or bail be not given and justified, or a 
 deposit be not made instead thereof, the sheriff shall himself be 
 liable as bail. But he may discharge himself from such liability, by 
 the giving and justification of bail as provided in sections 168, 169, 
 170 and 171, at any time before process against the person of tlM 
 defendant, to enforce an order or judgment in the action. 
 
 (Am'd in 1849.) 
 
§§ 201-205.] CODE or PEOCEDUEE. 186 
 
 § 201. (As am'd in 1849.) If, after being arrested, the defendant 
 escape or be rescued, or bail be not given or justified, or a deposit 
 be not made instead thereof, the sheriff shall himself be liable as 
 bail. But he may discharge himself from such liability by the 
 giving and justification of bail, as provided in sections 193, 194, 195 
 and 196, at any time before process against the person of the de- 
 fendant to enforce an order or judgment in the action. 
 
 § 202. (Being § 177 of 1848.) If a judgment be recovered against 
 the sheriff, upon his liability as bail, and an execution thereon be 
 returned unsatisfied, m whole or in part, the same proceedings may 
 be had on the oflScial bond of the sheriff, to collect the deficiency, 
 as in other cases of delinquency. 
 
 § 303. (Being § 178 of 1848.) The bail taken upon the arrest shall, 
 Tmless they justify, or other bail be given and justified, be liable to 
 the sheriff, by action, for all damages which he may sustain by 
 reason of such omission. 
 
 (Am'd in 1849.) 
 
 § 203. (As am'd in 1849.) The bail taken upon the arrest shall, 
 unless they justify, or other bail be given or justified, be liable to 
 the sheriff, by action, for damages which he may sustain by reason 
 of such omission. 
 
 § 204. (Being § 179 of 1848:) A defendant arrested may, at any 
 time before the' justification of bail, apply, on motion, to vacate the 
 order of arrest or to reduce the amount of the bail. 
 
 (Am'd m 1858.) 
 
 § 204. (As am'd in 1858.) \ defendant arrested may, at any time 
 before judgment, apply on motion to vacate the order of arrest or to 
 reduce the amount of bail. 
 
 § 205, (Being § 180 of 1848.) If the motion be made upon affida- 
 vits on the part of the defendant, but not otherwise, the plaintiff 
 may oppose the same by affidavits or other proofs, in addition to 
 those on which the order of arrest was made. 
 
136 CODE OP PEOOEDUEB. [§§ 206-207. 
 
 CHAPTER IL 
 Claim and Dditery of JPersonal Property. 
 
 Sectioh 206. Delivery of personal property ; when It may lie claimed. 
 
 207. Affidavit and its reqamtee. 
 
 208. Eeqnisltion to sheriff to take and deliver the property. 
 
 209. Security on the part of the plaintiff, and justification. 
 
 210. Exception to sorefles and proceedings, thereon, or on fallmre to 
 
 except. 
 Sll. Defen&nt, when entitled to rerdelivery. .' 
 
 212. Justification of defendant's Bureties. 
 
 213. Qualification and justification of sureties. 
 
 214. Property, how taken when concealed in hnilding or incloanre. 
 
 215. Property, how kept. 
 
 216. Claim of property by third person. 
 
 217. Notice and affidavit, when and where to be filed. 
 
 § 206. (Being § 181 of 1848.) The plaintiflF, in an action to recover 
 the possession of personal property, may, at the time of commenc- 
 ing the action, claim the immediate delivery of such property, aa 
 provided in this chapter. 
 
 (Am'd in 1849.) 
 
 §206. (Aa. am'd in 1849.) The plaintiff, in an action to recover 
 the possession of personal property, may, at the time of mwing tha 
 summons, or at any time before answer, claim the immediate delivery 
 of such property as provided in this chapter. 
 
 § aor. (Being § 183 of 1848.) Where a delivery is claimed, an 
 affidavit must he made by the plainti^ or hy some one in his behalf 
 showing : 
 
 1. That the plaintiff is the owner of the property claimed (partic- 
 ularly describing it), or is lawfully entitled to the possession 
 thereof, by virtue of a special property therein, the facts in re- 
 spect to which shall be set forth. 
 
 2. That the property is wrongfully detained by the defendant. 
 
 3. The alleged cause of the detention thereof, according to his 
 best knowledge, information and belief. 
 
 4. That the same has not been taken for a tax, assessment or finei 
 pursuant to a statute; or seized vinder an -execution or attachment 
 against the property of the plaintiff; or if so seized, that it is, by 
 statute, exempt from such seizure ; and, 
 
 6. The actual value of the property. 
 
§§ 208, 209.] CODE OP PKOCBDUEB. JSl 
 
 § 208. (Being § 183 of 1848.) The plaintiflf may thereupon, by 
 an mdorsement in writing upon the affidavit, require the sheriff of 
 the county, where the property claimed may he, to take the same 
 from the defendant aud deliver it to the plaintifT. 
 
 § 209. (Being § 184 of 1848.) Upon the receipt of the affidavit and 
 notice, with a written undertaking, executed by one or more suffi- 
 cient sureties, approved by the sheriff, to the effect that they are 
 bound, in double the value of the property as stated in the affidavit, 
 for the prosecution of the action, for the return of the property to 
 the defendant, if return thereof be adjudged, and for the payment 
 to him of such sum as may, for any cause, be recovered against the 
 plaintiff, the sheriff shaU forthwith take the property described in 
 the affidavit, if it be iu the possession of the defendant or his agent, 
 and retain it in his custody. He shall, also, without delay^ serve on 
 the defendant a copy of the affidavit, notice and undertaking, by 
 delivering the same to him personally, if he can be found, or to his 
 agent, from whose possession the property is taken ; or if neither 
 can be f oundj by leaving them at the usual place of abode of either, 
 with some person of suitable age and discretion, with a notice in 
 writing that the sureties will justify before a judge of the court, or 
 a county judge, at a time and place therein named, the time to be 
 not less than four nor more than eight days thereafter. 
 
 (Am'd in 1849.) 
 
 § 209. (As am'd in 1849.) Upon the receipt of the affidavit and 
 notice, with a written undertaking, executed by one or more suffi- 
 cient sureties, approved by the sheriff, to the effect that they are 
 bound, in double the value of the property as stated in the affidavit, 
 for the prosecution of the action, for the return of the property to 
 the defendant, if return thereof be adjudged ; and for the payment to 
 him of such sum as may, for any cause, be recovered against the 
 plaintiff, the sheriff shall forthwith take the properly described in 
 the affidavit, if it be in the possession of the defendant or his agent, 
 and retain it in his custody. He shall, also, without delay, serve on 
 the defendant a copy of the affidavit, notice and undertaking, by 
 delivering the same to him personally, if he can be found, or to his 
 agent, from whose possessioit the property is taken ; or, if neither 
 can be foimd, by leaving them at the usual place of abode of either, 
 With some person of suitable age and discretion. 
 12* 
 
138 CODE 01" PEOCEDUKB. [§§ 210, 211. 
 
 § 210. (Being § 185 of 1848.) If the sureties do not justify, accord- 
 ing to tlie notice, tlie slierifF shall forthwith deliver the property to 
 the defendant. K they justify, he shall deliver it to the plaintift' 
 unless the defendant shall entitle himself thereto, as provided by 
 the next two sections. 
 
 (Am'd in 1849.) 
 
 § 210. (As am'd in 1849.) The defendant may, within three 
 days after the service of a copy of the affidavit and undertaking, 
 give notice to the sheriflF that he excepts to the sufficiency of the 
 sureties. If he fail to do so, he shall be deemed to have waived all 
 objection to them. When the defendant excepts, the sureties shall 
 justify, on notice, in like manner as upon bail on arrest. And the 
 sheriff shall be responsible for the sufficiency of the sureties until 
 the objection to them is either waived, as above provided, or until 
 they shall justify, or new sureties shall be substituted and justify. 
 If the defendant except to the sureties, he cannot reclaim the prop- 
 erfy as provided in the next section. 
 
 § 311. (Being § 186 of 1848.) At any time before the delivery of 
 the property to the plaintiff, the defendant may require the return 
 thereof, upon giving to the sheriff a written undertaking, executed 
 by two or more sufficient sureties, -to the effect that they are bound, 
 in double the value of the property as stated in the affidavit of the 
 plaintiff, for the delivery thereof to the plaintiff, if such delivery be 
 adjudged, and for the payment to him of such siun as may, for any 
 cause, be recovered against the defendant. 
 
 (Am'd in 1849.)- 
 
 § 211. (As am'd in 1849.) At any time before the delivery of the 
 property to the plaintiff, the defendant may, if he do not except to the 
 sureties of the plaintiff, require the return thereof, upon giving to 
 the sheriff a written undertaking, executed by two or more sufficient 
 sureties, to the effect that they are boimd, in double the value of the 
 property, as stated in the affidavit of the plaintiff, for the delivery 
 thereof to the plaintiff, if such delivery be adjudged, and for the 
 payment to him of such sum as may, for any cause, be recovered 
 against the defendant. Jff' a return of the property ienotio required 
 within three days after the taking <md aermce of notice to the defendcmt, 
 it shaU be delivered to the plaintiff, except as provided in section 316. 
 
II 212-216.] CODE OP PEOCEDUEE. 139 
 
 § 212. (Being § 187 of 1848.) The defendant's sureties, upon a 
 notice to the plaintiff of not less than four nor more than eight days, 
 shaU justify before a judge in the same manner as the sureties 
 given by the plaintiff, and upon such justification the sheriff shall 
 deliver the property to the defendant. 
 
 (Am'd in 1849.) 
 
 § 212, (As am'd in 1849.) The defendant's sureties, upon a notice 
 to the plaintiff of not less than two nor more than six days, shall 
 justify before a judge or justice of the peace, in the same manner as 
 upon bail on arrest/ upon such justification the sheriff shall deliver 
 the property to the defendant. The sheriff shaU be responsible for the 
 defendant's sureties, untU they just^, or untU jicstijication is completed 
 or eaypresfHy waived, and may retain the property untU that Ume, but if 
 they, or others in their place, faM to justify, at the Ume and place ap- 
 jpointed, he shaU deliver the property to the plainUff. 
 
 % 213. (Being § 188 of 1848.) The quaMcations of sureties and 
 their justification shall be as are prescribed by sections 169 and 170, 
 in respect to bail upon an order of arrest. 
 
 (Am'd in 1849.) 
 
 § 213. (As am'd in 1849.) The qualifications of sureties and their 
 justification shall be as are prescribed by sections 194 and 19S, ia 
 respect to bail upon an order of arrest. 
 
 § 214. (Being § 189 of 1848.) If the property or any part thereof 
 be concealed in a building or inclosure, the sheriff shall publicly 
 demand its delivery. If it be not delivered, he shall cause the build- 
 ing or inclosure to be broken open, and take the property iato his 
 possession ; and, if necessary, he may call to his aid the power of 
 his county. 
 
 § 215. (Being § 190 of 1848.) When the sheriff shall have taken 
 property, as in this chapter provided, he shall keep it in a secure 
 place, and deliver it to the party entitled thereto, upon receiving his 
 lawful fees for taking, and his necessary expenses for keeping the 
 same. 
 
 § 216. (Added in 1849.) If the property taken be claimed by 
 any other person than the defendant or his agent, and such person 
 shall make affidavit of his title thereto, and right to the possession 
 
140 CODB-OFPROCEDtTEI!. [ii^l'^""^^^* 
 
 tiierecrf^ Stating the groimdsof such riglit and title, and serve the 
 satue upon the, sheriff, the sheriff shall not he bound to keep the 
 property, or deliver it to the plaiatiff, unless the plaintiff.-on demand 
 of hihi or his agent; shall indemnify the sheriff against suoh claim 
 by an undertaking, executed bytwb sufficient sureties, accompanied 
 by their affidavits that they are each worth double the value of the 
 property as specified La the affidavit of the plaintiff; and freeholders 
 and householders of the county. And no claim to such property 
 by any other person than the defendant or his agent shall be valid 
 against the sheriff unless made as aforesaid, and notwithstanding 
 such claim, when so made, he may retain the property a reasonable 
 time to demand such indemnity. 
 
 § 217. (Added iil 1849.) The sheriff shall file the notice and afli- 
 davit, with his proceedings thereon, with the clerk of the court in 
 which the action is pending withia twenty days after taking the- 
 property mentioned therein. 
 
 CHAPTER III. 
 
 Injunction. 
 
 Skction 218. Writ of injmiction abolished, and order eubstitttted. 
 
 519. Injunction ; in what cases granted. 
 
 520. At what time it may be granted. 
 
 221. Notice, when required ; temporary injunction. 
 
 S22. Security upon injunction \ damages how ascertained. 
 
 223. Order to snow cause why injunction should not-be granted. 
 
 224. Security, upon injunction to suspend business of corporation. 
 
 225. Motion to vacate or modify injunction. 
 
 226. Affidavits on motion. 
 
 § 218. (Being § 191 of 1848.) The writ of injunction as a pro- 
 visional remedy is a,bolished; and an injunction, by order, is substi 
 tuted therefor. The order may be made by the court in which the 
 action is brought, or by a judge thereof, or by a county judge, in 
 the cases provided in the next section ; and when made by a judge 
 may be enforced as the order of the court. 
 
 § 219. (Being § 192 of 1848.) Where it shall appear by the com- 
 plaint that the plaintiff is entitled to the relief demanded, and such 
 relief, or any part thereof, consists in restraining the commission 
 or continuance of some act of the defendant, the commission or 
 continuance of which, during the litigation, would produce great 
 
§§ 219-221.J CODE OP PEOCEDURB. 141 
 
 or irreparable injuiy to the plaintiff, or where, daring the litigation, 
 it shall appear that the defendant is doing, or threatens, or is about 
 to do some act, in violation of the plaintiff's rights, respecting the 
 subject of the action, and tending to render the judgment inef- 
 fectual, a temporary injunction may be granted to restrain such act. 
 
 (Am'd in 1849.) 
 
 § 219. (As am'd in 1849.) Where it shall appear by the com- 
 plaint that the plaintiff is entitled to the relief demanded, and such 
 relief, or any part thereof^ consists in restraining the commission or 
 continuance of some act, the commission or continuance of ^which, 
 during the litigation, would produce inj/wry to the plaintiff, or when, 
 during the litigation, it shall appear that the defendant is doing, or 
 tlireatens, or is about to do, or firocwring or miffming some act to be 
 done in -violation of the plaintiff's rights, respecting the subject 
 of the action, and tending to render the judgment ineffectual, a 
 temporary injunction maybe granted to restrain such act. And 
 nhere, during the pendency of an action, it shaU aippeair by affidamt 
 &at the defendant threatens, or is about to renune, or dispose of his 
 property, with intent to defraud Ms creditors, a tempora/ry iryunction 
 ma/y be granted to restrain snuih remomd or disposition. 
 
 § 220. (Being § 193 of 1848.) The injunction may be granted at 
 the time of commencing the action, or at any time afterwards, before 
 judgment, upon its appearing satisfactorily to the judge, by the 
 affidavit of the plaintiff, or of any other person, that sufficient 
 grounds exist therefor. A copy of the affidavit must be served virith 
 the iniunction. 
 
 (Am'd in 1849.) 
 
 I 220. (As. am'd in 1849.) The injunction may be granted at 
 the time of commencing the action, or at any time afterwards, be- 
 fore judgment, upon its appearing satisfactorily to the court or 
 judge, by the affidavit of the plaintiff, or of any other person, that 
 sufficient grotmds exist therefor. A copy of the affidavit must be 
 served with the injunction. 
 
 § 221. (Being § 194 of 1848.) An injunction shall not be allowed, 
 after the defendant shall have answered, unless upon notice, or 
 upon an order to show cause ; but in such case the defendant may 
 be restrained, until the decision of the judge granting or refusing 
 the injunction. 
 
 (Am'd in 1849.) 
 
li3 CODE OF PROCEDUBE. [§§ 221-224. 
 
 § 221. (As am'd in 1849.) An injunction shall not be allowed, 
 after the defendant shall have answered, unless upon notice, or 
 upon an order to show cause ; but in such case the defendant may- 
 be restrained, until the decision of the cowrt or judge, granting or 
 refusing the injunction. 
 
 § 223. (Being § 195 of 1848.) "Where no provision is made by- 
 statute as to security- upon an injunction, the judge shall require a 
 written undertaking on the part of the plaintiff, with or without 
 sureties, to the effect that the plaintiff will pay to the party enjoined 
 such damages, not exceeding an amount to be specified, as he may 
 sustain by reason of the injunction, if the court shall finally decide 
 that the plaintiff was not entitled thereto. The damages may be 
 ascertained by a reference, or otherwise, as the court shall direct. 
 
 (Am'd in 1849.) 
 
 § 222. (As am'd in 1849.) Where no provision is made by statute 
 as to security upon an injunction, the court or judge shall require a 
 written undertslking on the part of the plaintiff, with or without 
 sureties, to the effect that the plaintiff will pay to the party enjoined 
 such damages, not exceeding an amount to be specified, as he may 
 sustain by reason of the injunction, if the court shall finally decide 
 that the plaintiff was not entitled thereto. The damages may be 
 ascertained by a reference, or otherwise, as the court shall direct. 
 
 § 323. (Being § i96 of 1848.) If the judge deem it proper that the 
 defendant, or any of several defendants, should be heard before 
 granting the injunction, he may, by an order, requu-e cause to be 
 shown, at a specified time and place, why the injunction should not 
 be granted ; and he may, in the mean time, restrain the defendant 
 
 (Am'd in 1849.) 
 
 §223, (As am'd in 1849.) If the court or judge deem it proper 
 that the defendant, or any of several defendants, should be heard 
 before granting the injunction, an order may be made rehiring cause 
 to be sho-wn, at a specified time and place, why the injunction should 
 not be granted ; and tJie defendomi may, in the mean time, he re- 
 
 § 234. (Being § 197 of 1848.) An injunction to suspend the general 
 and ordinary business of a corporation shall not be granted except 
 by the court, or a judge thereof. Nor shaU it be granted without 
 
§§ 224-226.] CODE of pkoobdpee. 143^ 
 
 due notice of the application therefor to the proper officers of the 
 corporation, unless the plaintiflf shall give a written undertaking, 
 executed by two sufficient sureties, to be approved by the court 
 or judge, to the effect that the plaintiff will pay all damages, not 
 exceeding the sum to be mentioned in the undertaking, which such 
 corporation may sustain by reason of the injunction, if the court 
 shall finally decide that the plaintiff was not entitled thereto. The 
 damages may be ascertaiued by a reference or otherwise, as the 
 court shall direct. 
 
 (Am'd in 1849.) 
 
 § 224. (As am'd in 1,849.) An injunction to suspend the general 
 and ordinary business of a corporation shall not be granted except 
 by the court or a judge thereof. Nor shall it be granted without 
 due notice of the application therefor to the proper officers of the 
 corporation, except where the pe/yale of this State are a party to the pro- 
 ceeding, and except in proceedings to enforce the liabUily of stockholders 
 in corporations and associations for hanMng purposes, after tim first day 
 of Janua/ry, one thousand eight hundred and ffty, as such proceedings 
 are or shaU be provided by law, imless the plaintiff shall give a written 
 undertaking, executed by two sufficient sureties, to be approved by 
 the court or judge, to the effect that the plaintiff will pay all dam- 
 ages, not exceeding the sum to be mentioned in the undertaking, 
 which such corporation may sustain by reason of the injunction, if 
 the court shall finally decide that the plaintiff was not entitled 
 thereto. The damages may be ascertained by a reference or other- 
 wise, as the court shall direct. 
 
 § 225. (Being § 198 of 1848.) If the injunction be granted by a 
 judge of the court, or by a county judge, without notice, the de- 
 fendant, at any time before the trial, may apply, upon notice, to the 
 judge of the court in which the action is brought, to vacate on 
 modify the same. The application may be made upon the com- 
 plaint and the affidavits on which the injunction was granted, or 
 upon affidavits on the part of the defendant, with or without the 
 answer. 
 
 § 326. (Being § 199 of 1848.) If the application be made upon 
 affidavits on the part of the defendant, but not otherwise, the 
 plaintiff ms^ oppose the same by affidavits or other proofs, in addi- 
 tion to those on which the injunction was granted. 
 
 (Am'd in 1870.) 
 
144 OODB OF PEOCEDURE. [§§ 226, 227; 
 
 § 2S6. (As am'd in 1870.) The a/pplicaUm mentioned in the lait 
 leeiion may be opposed by affldcmU or other j^oqfi, in addition to those 
 on which the vnjuneKon was granted. 
 
 CHAPTER IV. 
 
 Attachment. 
 
 Sxcnoii 227. Property of foreign corporations and of non-resident, or absconding 
 or concealed defendants, may be attached. 
 228. Warrant, by whom granted; 
 289. In what cases warrant may be granted. - 
 
 230. Seenrity In obtaining warrant. r 
 
 231. Warrant, to whom directed and what to require. 
 233. Mode of proceeding in executing warrant. 
 
 233. Proceeding in case of perlstiable property or veesels. 
 
 234. Interest in coiporations or associations hable to attaclimdnt: 
 
 235. Attachment, bow executed on property incapable at manual 
 
 delivery. 
 236i Certificate of -defendant's Interest to be fnrhished by corporation. 
 
 237. Judgment, how satisfied. 
 
 238. When action to recover notes, etc., of defendant maybe prbsecnted 
 
 r, by plaintiff in the action in which the attaclmient. issued. 
 
 239. Bond to sheriff on attachment, now disposed of, on judgment for 
 
 ' d^-endant; : 
 
 240. Discharge of attachment and retnm of property, or Its proceeds, to 
 
 defendant, on his appearancein action. 
 
 241. Undertaking on the part of the defendant. 
 
 242. When sheriff to return warrant and proceedings thereon. 
 
 243. Sheriff 's fees. 
 
 § 237. (Added in 1849.) In an action for the recovery of money 
 against a corporation created by or uiider the laws of any 
 other State, government or country, or against a defendant who 
 is not a resident of this State, or against a defendant who has 
 absconded or concealed himself, as hereinafter mentioned, the 
 plaintiff, at the time of issuing the summons, or at any time after- 
 wards, may have the property of such defendant attached in the 
 manner hereinafter prescribed, as a security for the satisfaction of 
 such judgment as the plaintiff may recover. 
 (Am'd in 1857 and 1866.) 
 
 § 227. (As am'd in 1857.) In an action for the recovery of the 
 money against a_ corporation created by or under the laws of any 
 other State, government or country,or against a defendant who is 
 not a resident of this State, or agamata defendant who has dbseondsd 
 or eoneealed himself, or whenever a/ny person or corporation i» about to 
 renume any of his or its property from this State- or has assigned, dis- 
 posed of, or secreted, or is about to assign, dispose of, or secrete any <f hit 
 
§ 227-229.] CODE OF PKOCEDTTEE. 145 
 
 w its property initli, intent to defraud erediiors, as kereimifter men- 
 Honed, the plaintiff, at the lime of issuing the summons, or at any 
 time afterwards, may hare the property of such defendant or corpo- 
 ration attached, in the manner liereinafter prescribed, as a security 
 for the satisfaction of suchjndgnjent as the plaintiff may recover. 
 
 § 327. (As am'd in 1866.) In an action ansing on contract 
 for the recovery of money only, or in an action for the wrong- 
 ful eonvermn of personal proper^, again^ a corporation created 
 by or under the laws of any other State, government or 
 country, or against a defendant who is not a resident of this 
 State, or against a defendant who has absconded or concealed 
 himself, or whenever any x>er3on or corporation is about to re- 
 move any of his or its ;propferty from this State, or has assigned, 
 disposed of, or secreted, or is about to assign, dispose of, or secrete, 
 any of his or its property, with intent to defraud creditors, as here- 
 inafter mentioned, the plaintiff, at the time of issuing the summons, 
 or any time afterwards, may have the property of such defendant 
 or corporation attached, in the manner hereinafter prescribed, as a 
 security for the satisfaction of such judgment as the plaintiff may 
 recover; and for the purposes of this section an action shaU be deemed 
 commenced vihen the gammons is issued, prodded, Juymeeer, that per- 
 sonal service <f saeh summons shaU be made, or publication thereof 
 commenced, within thirty/ days. 
 
 % S28. (Added in 1849.) A warrant of attachment must be 
 obtained from a judge of the court in which the action is brought, 
 or from a county judge. 
 
 § 329. (Added in 1849.) The warrant may be issued whenever it 
 shall appear by affidavit that a cause of action exists against such 
 defendant, specifying the amount of the claim and the grounds 
 thereof, and that the defend^t is either a foreign corporation, or 
 not a resident of this State, or has departed therefrom with intent 
 to defraud liis creditors, or to avoid the service of a summons, or 
 keeps himself concealed therein with the like intent. 
 
 (Am'd in 1857 and 1860.) 
 
 § 229. (As am'd in 1857.) Same as § 229 of 1849, except that the 
 following words were added at the end thereof: 
 13 
 
146 CODE OF PEOCEDUEB. [§§ 229, 230. 
 
 "Or that meh cmfmaMon or person has removed, or is about to 
 remove, any of his or its property from this State with intent to defraud 
 his or its creditors, or has assigned, disposed of, or secreted, or is about to 
 assign, dispose of, or secrete, any of his or its property with the like intent, 
 whether such defendant be a resident of this State or not" 
 
 § 229. (As am'd in 1860.) The warrant may be issued when- 
 ever it shall appear by afSdavit that a cause of action exists 
 against such defendant, specifying the amount of the claim and 
 the grounds thereof, and that the defendant is either a foreign 
 corporation, or not a resident of this State, or has departed 
 therefrom with intent to de&aud his creditors, or to avoid the 
 service of a summons, or keep himself concealed therein with 
 like Intent, or that such corporation or person has removed, or 
 is about to remove, any of his or its property from this State with 
 intent to defraud his or its creditors, or has assigned, disposed of, or 
 secreted, or is about to assign, dispose of, or secrete, any of his or 
 its property, with the like intent, whether such defendant be a 
 resident of this State or not. 
 
 /* shall be the duty of the plaintiff proewrimg such warrant, within 
 ten days after the issuing thereof, to cause the ajfidamts on which the 
 same was granted to be JUed in the office of the derk of the county in 
 which the action is to be tried. 
 
 § 230. (Added in 1849.) Before issuing the warrant, the judge 
 shall require a written imdertaking on the part of the plaintiff, 
 with sufficient surety, to the effect that, i£ the defendant recover 
 judgment, the plaintiff will pay all costs that may be awarded 
 to the defendant, and all damages which he may sustain by reason 
 of the attachment, not exceeding the sum specified in the under- 
 taking, which shall be at least two hundred and fifty dollars. 
 
 (Am'd in 1862.) 
 
 § 230. (As am'd in 1863.) Before issuing the warrant the judge 
 shall require a written undertaking on the part of the plaintiff, with 
 sufficient surety, to the effect that, if the defendant recover judg- 
 ment, or the attachment be set aside by the order of the court, the 
 plaintiff will pay all costs that may be awarded to the defendant, and 
 all damages which he may sustain, by reason of the attachment, 
 not exceeding the sum specified in the undertaking, which shall be 
 at least two hundred and fifty dollars. 
 
§§ 231-234.] CODE OP PKOCBDUEB. 147. 
 
 §231. (Added in 1849.) The warrant shall be directed to the 
 Bheriff of any county in which property of such defendant may 
 be, and shall require 'him to attach and safely keep all the property 
 of such defendant within Ms county. Several warrants may be 
 issued at the same time to the sheriff of different coimties. 
 
 (Am'd in 1851.) 
 
 § 231. (As am'd in 1851.) The warrant shall be directed to the 
 sheriff of any county in which property of such, defendant may be, 
 and shall require iiim to attach and safely keep all the property of 
 such defendant within his county, or so much thereof as may be suffi- 
 cient to saM^y the plaintiff's demand, together with costs and expenses; 
 the amwunt of which must be stated in conformity with the complaint, 
 together with costs amd expenses. Several warrants may be issued at 
 the same time to the sheriffs of different counties. 
 
 § 232. (Added in 1849.) The sheriff to whom such warrant of 
 attachment is directed and delivered shall proceed thereon, ia. all 
 respects, in the manner required of him by law in case of attach- 
 ments against absent debtors ; shall make and return an inventory 
 and shall keep the property seized by him, or the proceeds of such 
 as shall have been sold, to answer any judgment which may be 
 obtained in such action, and shall, subject to the direction of the 
 court or judge, collect and receive int6 his possession all debts, 
 credits and effects of the defendant The sheriff may always take 
 such legal proceedings, either in his own name or in the name of such 
 defendant, as may be necessary for that purpose, and discontinue 
 the same at such times and on such terms as the court or judge may 
 direct. 
 
 § 233. (Added in 1849.) If any property so seized shall be perish- 
 able, or it any part of it be claimed by any other person than such 
 defendant, or if any part of it consist of a vessel, or of any share or 
 interest therein, the same proceedings shall be had in all respects as 
 are provided bylaw upon attachments against absent debtors. 
 
 § 234. (Added in 1849.) The rights or shares which such defend- 
 ant may have in the stock of any association or corporation, 
 together with the interest, and profits thereon, and all other prop- 
 erty in this State of such defendant, shall be liable to be attached 
 and levied upon and sold to satisfy the judgment and execution. 
 
,148 CODE OB" PBOCBBtTEB. [§§ 235— 23;T; 
 
 § 235. (Added in 1849.) The Bxecntion of the attachment npon 
 any such rights, shares, or any debts or ©ther property incapable of 
 manual delivery to the sheriff, shall be made by leaving a certified 
 copy of the warrant of attaetiment ■with the president or other 
 head of the association or corporation, or tlie secretary, cashier, or 
 managing agent thereof, or with the debtor or individual holding 
 such property, with a notice showing the property levied on. 
 
 § 336. (Added in 1849.) Whenever the sheriff shall, with a war- 
 rant of attachment or execution against the defendant, apply to 
 Mch officer, debtor or individual, for the purpose of attaching or 
 levying upon such property, such officer, debtor or individual' shall 
 famish him with a certificate, under his hand, designating the num- 
 ber of rights or shares of the defendant in the stock of such assoda- 
 tion or corporation, with any dividend, or any incumbrance thereon, 
 QT the amount and description of the property held by such assoda- 
 tion, corporation or individual,; for the benefit of, or, debt owing to, 
 the defendant. If sucb officer, debtor or individual refuse to do.so, 
 he may be requb-ed by the court or judge to attend before him, and 
 be examined on oath concerning the same, and obedienxie to such 
 orders may be enforced by attachment 
 
 § 337. (Added in 1849.) In case judgment be altered for the plaint- 
 iff in such action, the sheriff shall satisfy the same out of the prop- 
 erty attached by him, if it shall be sufficient for that purpose : ' 
 
 1. By paying over to such plaintiff the proceeds of all sales of perish- 
 able property, and of any vessel, or share or interest in any vessel, 
 sold by him, or of any debts or credits collected by him, or so mucb 
 as shall be necessary to satisfy such judgment. 
 
 3. If any balance remain due, and an execution shall have been 
 issued on such judgment, he shall proceed to sell under such 
 execution so much of the attached property, real or personal, 
 except as provided in subdivision four of this section, as may 
 be necessary to satisfy the balance, if enough for that purpose 
 shall remain in his hands ; and in case of the sale of any rights- or 
 shares in the stock of a corporation or association, the sheriff shall' 
 execute to the purchaser a certificate of sale thereof, and the pur- 
 chaser shall thereupon have all the rights and privileges in respect 
 thereto which were had by such defendant. 
 
§ 237.] CODE OP PBOOBDUEE. 149 
 
 3. If any of the attached property belonging to the defendant shall 
 have passed out of the hands of the sheriff without having been 
 sold or converted into money, such sheriff shall repossess himself of 
 the same,, and for that purpose shall hare all the authority which 
 he had to seize the same under the attachment; and any person 
 who shall willftilly conceal or withhold such property from the 
 sheriff shall be liable to double damages at the suit of the party 
 injured. 
 
 4 Until the judgment against the defendant shall be paid, the 
 sheriff may proceed to collect the notes and other evidences of debt, 
 and the debts that may have been seized or attached under the 
 warrant of attachment, and to prosecute any bond he may have 
 taken in the course of such proceedings, and apply the proceeds 
 thereof to the payment of the judgment 
 
 When the judgment and all costs of the proceedings shall have 
 been paid, the sheriff, upon reasonable demand, shall deliver over 
 to the defendant the residue of the attached property, or the pro- 
 ceeds thereof. 
 
 (Am'd in 1859.) 
 
 § 237. (As am'd in 1859.) Same as § 387 of 1849, to sub. 4, and 
 from thence as follows : 
 
 4 Until the judgment against the defendant shall be paid, the 
 sheriff may proceed to collect the notes, and other evidences of debt, 
 and the debts that may have been seized or attached under the war- 
 rant of attachment, and to prosecute any bond he may have taken 
 in the course of such proceedings, and apply the proceeds thereof 
 to the payment of the judgment 
 
 At the aeration, of six montJts from the docketing of the judgment, 
 the court shcM ha/oe pou>er, upon the petition of the ptaivMjf, a/xompa- 
 nied by an affidavit, setting forth fuUy aJX the proceedings which, have 
 leen had by the sheriff since the service tf the oMachment, the property 
 attached, and the disposition thereof, and also the affidamt of fhe sheriff 
 that he has used diligence and endeavored to eoVeet the evidences of debt 
 in his hands so attached, and that there renuUns uncollected of the same 
 any part or portion thereof, to orders sheriff to sM the same upon 
 sudt terms and in such manner as shall be deemed proper. Notice of 
 such appUeaiion shaXL be given to the defendant or his attorney if the 
 defendant shdU have appeared in the action. In ease the summons has 
 not been personatty served on the defendant, the court shaU make such 
 13* 
 
150 CODE OP PEOCEDUEK. [§§ 238-240. 
 
 rule or order as to the sermee of noUae and the Ume (^ sernce, at »haU 
 he. deemed jyM. 
 
 When the judgment and all costs of the proceedings shall have 
 been paid, the sheriff, upon reasonable demand, shall deliver over to 
 the defendant the residue of the attached property, or tiie proceeds 
 thereof. 
 
 § 288. (Added in 1849.) The actions herein authorized to be 
 brought by the sheriff may be prosecuted by the plaintiff, or under 
 his direction, upon the delivery by him to the sheriff of an under- 
 taking, executed by two sufficient sureties, to the effect that the 
 plaintiff will indemnify the sheriff from all damages, costa and 
 expenses on account thereof, not exceeding two hundred and fifty 
 dbllars in any one action. Such sureties shall in all cases, when 
 required by the sheriff, justify, by making an affidavit that each is a 
 householder, and worth double the amount of the penalty of the 
 bond, over and above sill demands and liabilities. 
 
 § 239, (Added in 1849.) If the foreign corporation, or absent or 
 absconding or concealed defendant, recover judgment against the 
 plaintiff; in such action, any bond taken by the sheriff, except such 
 as are mentioned in the last section, alT the proceeds of sales and 
 moneys collected by him, and all the property attached remaining 
 in his hands, shall be delivered by him to the defendant or his 
 agent on request, and the warrant shall be discharged, and the 
 property released therefrom. 
 
 § 240. (Added in 1849.) Whenever the defendant shall have ap- 
 peared in such action, he may apply to the officer who issued the 
 attachment, or to the court, for an order to discharge the same, and, 
 if the same be granted, all the proceeds of sales and moneys col- 
 lected by him, and all the property attached remaining in his bands, 
 shall be delivered or paid by him to the defendant or his agent, and 
 released from the attachment. 
 
 (Am'd in 1862.) 
 
 § 240. (As am'd in 1863.) Same as § 240 of 1849, except that the 
 following words were added thereto at the end thereof: 
 
 " And where there is more than one defendant, and several property 
 cf either of the defendants ha,s been seised by mrtue of the order if attach- 
 ment, the defendant whose semral property has been seised may apply 
 to the offieer who issued the attachment for relief under this section." 
 
§ i241.] CODE OP PEOCBDUEE. 151 
 
 § 341. (Added in 1849.) Upon such application the defendant Bhall 
 deliver to the court or officer an undertaking executed by at least 
 two sureties, resident and freeholders in this State, approved by such 
 court or officer, to the effect that the sureties mil, on demand, pay 
 to the plaintiff the amount of the judgment that may be recovered 
 against the defendant in the action, not exceeding the sum specified 
 in the undertaking, which shall be at least double the amount 
 claimed by the plaintiff in his complaint. 
 
 (Am'd in 1857, 1862 and 1869.) 
 
 § 241. (As am'd in 1857.) Upon such application the defendant 
 shall deliver to the court or oMcer an undertaking executed by at 
 least two sureties, volw aire residents and freeholders, or Tunisekolders, 
 in this State, approved by such court or officer, to the effect that the 
 sureties will, on demand, pay to the plaintiff the amount of judg- 
 ment that may be recovered against the defendant in the action, not 
 exceeding the sum specified in the undertaking, which shall be at 
 least double the amount claimed by the plaintiff in his complaint. 
 ff it sTiaU appear by affidamt that the property attached be less than 
 the amount claimed hy the plaintiff, the court or officer issuing the 
 attachment may order the sa/me to be appraised, and the amount of 
 the undertaldng shall then be double the amount so appraised. And 
 in aU cases the defendant may move to discharge the attachment as 
 in the case of other provisional remedies. 
 
 % 241. (As am'd in 1862.) Same as § 241, as amended in 1857, except 
 that the following words were added at the end thereof : 
 
 "And wliere there is m/>re than one defendant, and several property 
 of either of the defendants has been seized by virtue of the order of 
 attachment, the defendant whose several property has been seised may 
 deliver to the court or officer an undertaking in accordance with the 
 provisions of this section, to the effect that he will, on demand, pay to 
 the plaintiff the amount of judgment that may be recovered against 
 such defendant. And ail the provisUms of this section applicable to 
 such undertaking sJiall be applied thereto." 
 
 § 241. (As am'd in 1869.) Upon such application the defendant 
 shall deliver to the court or officer an undertaking executed by at 
 least two sureties, who are residents and freeholders or householders 
 in this State, approved by such court or officer, to the effect that the 
 sureties win, on demand, pay to the plaintiff the amount of judg- 
 
152 CODE OP PBOCBDUBB. [§§ 242, 243. 
 
 men,! that may be recovered against the defendant in tbe actiixii, 
 not exceeding the sum specified in the undertaking, 'which diaU he 
 at'least double the amount claimed by the^plaintiff in liis complaint. 
 If it shall appear by affidavit that the property attached be less 
 than the amount claimed by the plaintiff, the court or officer issuing 
 the attacluuent may order the same to be appraised, and the amount 
 of the undertaking shall then be double the amount so appraised. 
 
 And the plamtiff may, mthin three days after recmmng written 
 notice <^ the filing of such undertaking, giee notice to the sheriff thai 
 he excepts to the suffideney cf the sureties, j^ Tie fails so to do, he ^aU 
 be deemed to home waived oM objeeHon to them. When the plamUff ex- 
 cepts, the swreties shaU justify on notice m like manner as v/pon bail on 
 arrest. 
 
 And the sheriff shaUbe rexpomMe far the swffidency <^ the sureties, 
 and may retain possession iff the property attaefied, and the proceeds 
 thereof in his hands, unM the objecthm to them is eitheir. waived as above 
 provided, or until they shaU justify, or new sureties ^uM be substituted 
 and justify. 
 
 And in all cases the defendant may move to dischiaige the attach- 
 ment, as in the case of other provisional remedies. 
 
 And when there is more than one defendant, and several property 
 of either of the defendants has been seized by virtue of the order of 
 attachment, the defendant whose several property has been seized 
 may deliver to the court or officer an undertaking in accordance with 
 the provisions of this section, to the effect tliat he will, on demand, 
 pay to the plaintiff the amount of judgment tliat may be recovered 
 against such defendant. 
 
 And all the provisions of this section a^pplicable to such under- 
 taking shall be applied thereto. 
 
 § 242. (Added in 1849,), When the warrant shall be fully exe- 
 cuted or discharged, the sheriff shall return the same, -with his pro- 
 ceedings thereon, to the court in which the action was brought. 
 
 § 243. (Added in 1849.) The sheriff shall be entitled to the same 
 fees and compensation for services, and the same disbursements, 
 under this title, as are allowed by law for like services and disburse- 
 ments under the provisions of chapter 5, title 1, and part 3 of the 
 revised statutes. 
 
 (Am'd in 1865.) 
 
§§ 243, 244.] -CODB OF FBOCEDUBB. 153 
 
 §243. (As ata'd in 1865.) The sheiiff sliaU be entlQed to the 
 same fees and compensation for services, and the same disburse- 
 ments, under this title, as are allowed by law for like services iknd 
 disbtirsemehts under the yrovisions of chapter 5, title 1, and part 2 
 of the revised statutes. Provided, Jumever, Giat no poundage or other 
 eomipemicclion shall be oJBmDed to the said ^teriff (exe^t his fee of fifty cents 
 for makmg Uie levy, and such compensation for his trouble and expense 
 in taking possession of and preserving the property as shaJlbe fixed by 
 the officer iismng the ottaMmmt), unless a setUement shall be had or a 
 judgment shaU be recovered and collected in whole or in part in the 
 action in which the aitachment in this Ufle referred to shaU have issued. 
 And where a judgment shaU home been recovered and collected in part 
 oidy, the amount cf his poundage shciCl not be estimated upon any sum 
 greater than the sum coUeeted upon siteh judgment. And where a set- 
 Uemeni shaU be had^the amount of hi* poundage shaU not be esitmated 
 upon any sv/m greater Hum, the amount at which said setUement is 
 made. 
 
 CHAPTER V, 
 
 Provisional Bemedies. 
 
 Suction 244. Powers of court as to receivers, deposit of money, etc., in conit, 
 and other provisional remedies. 
 
 I 244 (Being § 300 of 1848.) Until flie le^latiire shall otherwise 
 provide, the court may appoint receivers, and direct the deposit of 
 money or other thing in court, and grant the other provisionid 
 remedies now existing, according to the present practice, except as 
 otherwise provided in tliis act. 
 
 (Am'd in 1851, 1853, 1857, 1858, 1863 and 1867.) 
 
 § 244 (As am'd in 1851.) A receiver may be appointed : 
 
 1. Before judgment, provisionally, on the application of either 
 party, when he establishes a prima facie right to such property 
 which is the subject of the action, and which is in the possession 
 of an adversfr party, and the property, or its rents and profits, are 
 in danger of being lost or materially injured or impaired. 
 
 2. After judgment, to cany the judgment into effect. 
 
 3. After judgment, to dispose of the property according to. the 
 judgment, or to preserve it during the pendency of an appeal, or 
 when an execution has been returned unsatisfied, and the judgment 
 
154 CODE 07 FBOCXDUBB. [§ 244. 
 
 debtor refuses to apply his property in satis&ction of the judg- 
 ment. 
 
 4 In the cases provided in this code and by special statutes, when 
 a corporation has been dissolved, or is insolvent, or in imminent 
 danger of insolvency, or has forfeited its corporate rights. 
 
 5. In such other cases as are now provided by law or may be in 
 accordance with the existing practice, except as otherwise provided 
 in this a«t. 
 
 The court may grant the other provisional remedies now existing 
 according to the present practice, except as otherwise provided in 
 this act. 
 
 When it is admitted by the pleading or examination of a party, 
 that he has in his possession, or under his control, any money or 
 other thing capable of delivery, which, being the subject of the liti- 
 gation, is held by him as trustee for another party, or which belongs 
 or is due to another party, the court may order the same to be 
 deposited in court, or delivered to such party, with or without 
 security, subject to the flirther direction of the court. 
 
 Whenever, in the exercise of its authority, a court shall have 
 ordered the deposit or delivery of money or other thing, and the 
 order is disobeyed, the court, besides punishing the disobedience, 
 as for contempt, may make an order requiring the sheriff to take 
 the money or thing and deposit or deliver it in conformity with the 
 direction of the court. 
 
 When the answer of the defendant admits part of the plaintiff's 
 claim to be just, the court on motion may order such defendant to 
 satisfy that part of the claim, and may enforce the order as it en- 
 forces a provisional remedy. 
 
 § 344. (As am'd in 1853.) Same as § 344, as amended in 1851, ex- 
 cept in sub. 1, which was amended so as to read as follows : 
 
 1. Before judgment, on the application of either party, when he 
 establishes an a/ppa/rent right to property which is the subject of 
 the action, and which is in the possession of an adverse party, and 
 the property, or its rents and profits, are in danger of being lost or 
 materially injured or impaired. 
 
 And in sub. 5, which was amended so as to read as follows : 
 
 5. In such other cases as are now provided by law, or may be in 
 accordance with the existing practice, except as otherwise provided 
 in this act. 
 
§ 244.]. CODE OP PEOCEDTTRE. 155 
 
 When it is admitted by the pleading or examination of a party, 
 that he has in his possession, or under his control, any money or 
 other thing capable of delivery, which, being the subject of the 
 litigation, is held by him as trustee for another party, or which be- 
 longs or is due to another party, the court may order the same to 
 be deposited in court, or 'delivered to such party, with or without 
 security, subject to the further direction of the court. 
 
 Whenever, in the exercise of its authority, a court shall have 
 ordered the deposit, delivery or conveyance of money or other prop- 
 erty, and the order is disobeyed, the court, besides punishing the 
 disobedience, as for contempt, may make an order requiring the 
 sheriff to take the money or property, and deposit, deliver or convey 
 it, in conformity with the direction of the court. 
 
 When the answer of the defendant admits part of the plaintiff's 
 claim to be just, the court on motion may order such defendant to 
 satisfy that part of the claim, and may enforce the order as it 
 enforces a provisional remedy. 
 
 § 344. (As am'd in 1857.) Same as § 244, as amended in 1852, 
 except in sub. 5, which was amended so as to read as follows : 
 
 5. In such other cases as are now provided by law, or may be in 
 accordance with the existing practice, except as otherwise provided 
 by this act. 
 
 When it is admitted by the pleading or examination of a party, 
 that he has in his possession, or under his control, any money or 
 other thing capable of delivery, which, being the subject of the liti- 
 gation, is held by him as trustee for another party, or which 
 belongs or is due to another party, the court may order the same to 
 be deposited in court, or delivered to such party, with or without 
 security, subject to the further direction of the court. 
 
 Whenever in the exercise of its authority a court shall have 
 ordered the deposit, delivery or conveyance of money or other 
 property, and the order is disobeyed, the court besides punishing 
 the disobedience, as for contempt, may make an order, requiring 
 the sheriff to take the money or property, and deposit, deliver or 
 convey it, in conformity with the direction of the court. 
 
 When the answer of the defendant expressly, or by not denying, 
 admits part of the plaintiff's claim to be just, the court on motion 
 may order such defendant to satisfy that part of the claim, and 
 may enforce the order as it enforces a judgment or provisional 
 remedy. 
 
156 CODE OF PEOCBDUEB. [§ 244 
 
 § 844 (As am'd: in 1858.> Same as § 244; as amended in 16S7, 
 except in subdivisions 1 and 4, .which were respectiVdy amended 
 BO as to read as follows : 
 
 1. Before judgment on the application of either party, when he 
 establishes an apparent right to property which is the subject, of the 
 action, and which is in possession of an adverse party, and the prop- 
 erty, or its rents or profits, are in danger of being lost or materiaUy 
 injured or impaired, «i!«eptm eases wlwreju^ment'wponfoi^lwre to cm- 
 guier may be had vnthout appUeation to the txmrt. 
 
 4 In the cases provided by this code and by special statutes, 
 when a corporation has been dissolved, or is insolvent, or in 
 imminent danger of insolvency, or has forfeited its corporate 
 rights, and in like cases of the property within, this State of foreign 
 corporations'. 
 
 § 244 (As am'd in 1862.) Same as § 244, as amended in 1858, 
 except in sub. 4, which was amended so as to read as follows: 
 
 4.. In the cases provided in this code and. ly special statutes, 
 when a corporation has been dissolved, or is insolvent, or in 
 imminent danger of insolvency, or has forfeited its corporate 
 rights, and in like cases of the property within this State of for- 
 eign corporations. Receiiiers of the property within this State of 
 foreign corporations shall T>e allowed the same commissions as are 
 dllofuoed by law to the trustees of the estates of absconding, concealed 
 and nonresident debtors. 
 
 % 244. (As am'd in 1867.) A receiver may be appointed : 
 
 1. Before judgment, on the application of either party, when he 
 establishes an apparent right to property which is the subject of 
 the action, and which is in the possession of an advsrse party, 
 and the property, or its. rents and profits are in danger of being 
 lost or materially injured. or impaired, except in cases where judg- 
 ment upon &ilure to answer may be had without application to the 
 court. 
 
 2. After judgment to carry the judgment into effect. 
 
 .3. After judgment to dispose of the property according to the 
 judgment, or to preserve it during the pendency of an appeal, or 
 when an execution; has been returned unsatisfied, and the judg- 
 ment debtor refuses -to apply his property in satisfaction of thp 
 judgment. 
 
§244.] CODE OF PBOCBDUBB. ISt 
 
 4 In the cases provided in this code, and by special statutes, 
 when a corporation has been dissolTed, or is insolvent, or in immi- 
 nent danger of insolvency, or has forfeited its corporate rights ; and 
 in like cases of the property within this State of foreign corpora- 
 tions. Receivers of tiie property within, this 6ta1je-.c»f foreign or 
 otJier corporations shall be allowed aiteh eommisnons as may he fixed 
 6y the court appointing them, not exceeding fiie per cent on the 
 amount received and disbursed 'by them. 
 
 5. In such other cases as are now provided by law, or may be in 
 accordance with the existing practice, except' as otherwise provided 
 in this act. 
 
 When it is admitted by the pleading or examination of a party, 
 that he has in his possession, or under his control, any money or 
 other thing capable of delivery, which, being the subject .of the 
 litigation, is held' bjr TiJTn' as trustee for another party, or which 
 belongs or is due to another party, the court may order the 
 same to be deposited in dourt, or delivered to such party, with or 
 with'out security, subject to the fiirther direction of the court. 
 
 Whenever, in the exercise of its authority, a court' shall have 
 ordered the deposit, delivery or conveyance of money or pthe; 
 property, and the order is disobeyed, the court, besides puni^ng 
 the disobedience, as for contempt, may make an order, requiring 
 the sheriff to take the money or property, and deposit, deliver or 
 convey it, in conformity with the- direction of the court. 
 
 When the answer of the defendant expressly, or by not denyingj 
 admits part of the plaintiff's claim to be just, the court on motion 
 may order such defendant to satisfy that part of the claim, and may 
 enforce the order as it enforces a judgment or provisional remedy. 
 
 14 
 
158 CODE OF PEOCEDUEE. f§§ 245, 246. 
 
 TTTIiI! ViUL 
 
 Of the TriaZ amd Judgment in Cioil Actions. 
 
 CsAPTEB I. Jadgment upon failnre to answer. 
 
 XL lesuea, and tbe mode of trial. 
 HL Trial by juiy. 
 rv. Trial by the conrt 
 
 V. Trial by referees. 
 VI. The numner of entering judgment. 
 
 CHAPTER L 
 
 Judgment upon fcoMire to answer. 
 
 Szcnoir 345. Judgment, what. 
 
 846. Judgment on failnre of defendant to answer. 
 247. Judgment on f rlTOlous demurrer, answer or reply. 
 
 § 245. (Being § 201 of 1848.) A judgment is the final determina- 
 tion of the rights of the parties in the action. 
 
 § 246. (Being § 202 of 1848.) Judgment may be had, if the de- 
 fendant fail to answer the complaint, as follows: 
 
 1. In an action arising on contract for the recovery of money 
 only, the plaintiff may file with the clerk the summons and com- 
 plaint, with proof of service, and that no answer has been received. 
 The clerk shall thereupon enter judgment for the amount mentioned 
 in the summons. 
 
 2. In other actions the plaintiff may, upon the like proof, apply 
 to the court, at the time and place specified in the summons, for 
 the relief demanded in the complaint. If the taking of an account 
 or the proof of any fact be necessary to enable the court to give 
 judgment, or to carry the judgment into effect, the conrt, instead 
 of taldng the account or hearing the proof, may, in its discretion 
 order a reference for that purpose to any person, free from all ex- 
 ception, to be named by the plaintiff. And where the action is for 
 the recovery of money only, the court, if the plaintiff require it, 
 shall order the damages to be assessed by a jury ; or, if the ex- 
 amination of a long account be involved, by a reference as above 
 provided. 
 
 (Am'd in 1849, 1851 and 1858.) 
 
§ 246.] CODE OS' PBOCEDUEB. 15& 
 
 §246. (As am'd in 1849.) Judgment may be had, if the defendant 
 &il to answer the complaint, as follows : 
 
 1. In amy action arising on contract, for the recovery of money 
 only, the plaintiff may file with the clerk proof of perKmal service 
 of the summons and eomplaint on one or more of the defendants, or 
 qf the xwmmwns according to the promsions of section 130, and that no 
 answer has been received. The clerk shciU thereivpon enter judgment 
 for the amumnt Wiemiiumed in the summ/ms against the defendant or 
 defendants, or against one or mx/re of several defendants, in the cases 
 provided for in section 136. But, if the complaint be not sworn to, and 
 such action is on an instrument for the payment of rru)ney only, the 
 elerk, on its production to him, shaU assess the amount due to the 
 plaintiff thereon ; and in other cases shall ascertain the amount which 
 the plaintiff is entitled to recover in such action, from his examination 
 under oath, or other proof, and enter the judgment for the amount so 
 assessed or ascertained. In case the defendant gim notice of appear- 
 ance in the action he shaM ie entitled to five dayi notice of the time and 
 place of sucJi assessment. 
 
 3. In other actions the plaintiff may, upon the like proof, apply 
 to the court, after the expiration of the time for answering, for the 
 relief demanded in the complaint. If the taking an account or the 
 proof of any fact be necessary to enable the court to give judgment, 
 or to carry the judgment into effect, the court, instead of taking the 
 accoimt or hearing the proof, may, in its discretion, order a refer- 
 ence for that purpose to any person, free from all exception, to be 
 named by the party. And where the action is for the recovery of 
 money only, or of specific real or personal property, with damages 
 for the withholding thereof, the court may issue a vrrit of inquiry or 
 order the damages to be assessed by a jury ; or, if the examination 
 of a long account be involved, by a reference as above provided. 
 In case the defendant give notice of appearance in the action before 
 the expiration of the time for answering, he shall be entitled to eight 
 days' notice of the time and place of application to the court for the 
 relief demanded by the complaint in such actions. 
 
 3. In actions wliere the service of the summons and complaint was 
 not personal, the plaintiff may, in like m,anner, apply for judgment, 
 and the court shall thereupon cause proof to be taken of the de- 
 mand mentioned in the eomplaint, and in case the defendant is a 
 non-resident, shall cause the plaintiff or his agent to be examined on 
 oath as to any payments that have been made to such plaintiff, or to 
 
160 . CODE or PROCBDUEB. t§ 246. 
 
 a/ny mefyhU rise, on, aeemnt pftmli, Oeraand, and ma/y ren4erj.i^' 
 memifoT ihe amount which A«! w entitled p reiiover,and moVi *"■ *'** ^^ 
 ^etior>,,irpguiiV:the plainfiff, to cause to be filed mtiff'^tor}/ tte^ity to 
 <Mde tile order of the equtt tomhing the restUiiUon of any e$tati or 
 ■^eets which may te directed by, siteh^ judgment to be trantferred or 
 MhietedtOr the rettitution 0/ any mariiy that mcty be collected under 
 or-by virtue of such judgment, in ease the defindant or his represent- 
 atives shaU apply and be admitted to defend the action, and anali 
 succeed in such defence. 
 
 §346. (As am'd ia 1851.) Same as §246 as amended in 1849 to 
 sub. 2, and from thence as fallows: .'a 
 
 2. In other actions the plaintiff may, upon the like proof, apply to 
 the court, after the expiration of the time tor answering, for ih? 
 relief demanded in the complaint. If the taking of an accoimt or 
 the proof of any fact be necessary to enable the court to give judgr 
 ment, or to carry the. judgment into effect, the caaik may t<dc6the 
 account or hear the proof, or may, in its discretion, order a refer- 
 ence for that purpose. And where the action is for the recovery of 
 money only, or of specific real or personal property, with damages 
 for the withholding thereof, the court may order the damages to 
 be assessed by a jmy, or, if the examination of a long account be 
 involved, by a reference as above provided. If the defendant give 
 notice of appearance in the action' before the expiration of the 
 time for answering, he shall be entitled to eight days' notice of Qie 
 time and place of application to the court for the relief demanded 
 by the complaint. 
 
 3. In actions where the .service of the summons was by ptiblieatioH, 
 the plaintiff may, in like manner, apply for judgment, and the court 
 mmt thereupon require proof to be made of the demand mentioned 
 in the complaint, and, if the defendant he not a resident of the State, 
 must require the plaintiff or his agent to be examined on oath re- 
 tpeeting any payments that have been made to the plaintiff, or to atfy 
 one for his use, on account of such demand, and may render jiidg- 
 ment f(fn the amount which he is entitled to recover. Before render- 
 ing judgment the court may, in its discretion, require the plaintiff 
 to cause to be filed satisfactory security to abide the order of the 
 court touchiag the restitution of any estate or effects which nlay be 
 directed by such judgmieM to be transferred oi* delivered, or the 
 restitutioil df any money that nlay be collected under or by virtue 
 
§ 246.] CODE OF FBOCXDUBB. 161 
 
 of such judgment, in case the defendant or his representatiyes shall 
 apply and be admitted to defend the action, and shall succeed in 
 such defense. 
 
 § 246. (As am'd in 1858.) Judgment may be had, if the defend-, 
 ant fails to answer the complaint, as follows : 
 
 1. In any action arising on contract for the recovery of money, 
 only, the plaintiff may file with the clerk proof of personal serrice 
 of the summons and complaint on one or more of the defendants,. 
 or of the summons, according to the provisions of section 130, and 
 that no answer has been received. The clerk shall thereupon enter 
 judgment for the amount mentioned in the summons against the. 
 defendant or defendants, or against one or more of several defend-, 
 ants, in the cases provided for in section 136. But, if the com- 
 plaint be not sworn to, and such action is on an instrument for 
 the payment of money only, the clerk, on its production to him, 
 shall assess the amount due to the plaintiff thereon ; sad in other 
 cases shall ascertain the amount which the plaintiff is entitled to 
 recover in such action, from his examination under oath, or other 
 proof, and enter the judgment for the amount so assessed or ascer- 
 tained. In case the defendant give notice of appearance in the 
 action he shall be entitled to five days' notice of the time and place 
 of such assessment. 
 
 Where the defendant, by his answer in any such action^ sTtall Mit. 
 deny the plaintiff's claim, but shaU set up a counterclaim ammmting 
 ta less than the plaintiff's claim, judgment may lie had by the plaintiff 
 for the excess of said claim, over the said counterclaim, in like man- 
 ner in any such action, upon the plaintiff's fling with the clerk of 
 the court a statement admitting such counterclaim, which statement 
 shall be annexed to and be a part of the judgment rbU. 
 
 3. In other actions the plaintiff may, upon the like proof, apply 
 to the court, after the expiration of the time for answering, for the 
 relief demanded in the complaint. If the taking of an account or 
 the proof of any fact be necessary to enable the court to give judg- 
 ment, or to carry the judgment into effect, the court may take the 
 account or hear the proof, or may, in its discretion, order a refer- 
 ence for that purpose. And where the action is for the recovery of 
 money only, or of specific real or personal property, with damages 
 for the withholding thereof, the court may order the damages to 
 be assessed by a jury, or, if the examination of a long account bo 
 14* 
 
162 CODE OF PEOCEDUEB. [§ 247. 
 
 Involved, by a reference as above provided. If the defendant give" 
 notice of appearance in the action before the expiration of the time 
 for answering, he shall be entitled to eight days' notice of the time 
 and place of application to the court for the relief demanded by the 
 complaint. 
 
 3. In actions where the service of the summons was by publica- 
 tion, the plaintiff may, in like manner, apply for judgment, and the 
 court must thereupon require proof to be made of the demand 
 mentioned in the complaint, and, if the defendant be not a resident 
 of the State, must require the plaintiff or his agent to be examined 
 on oath respecting any payments that have been made to the 
 plaintiff, or to any one for his use, on account of such demand, and 
 may render judgment for the amount which he is entitled to re- 
 cover. Before rendering judgment the court may, in its discretion, 
 require the plaintiff to cause to be filed satisfactory security to 
 abide the order of the court touching the restitution of any estate 
 or effects which may be directed by such judgment to be trans- 
 ferred or delivered, or the restitution of any money that may be 
 collected under or by virtue of such judgment, in case the defend- 
 ant or his representatives shall apply and be admitted to defend the 
 action, and shall succeed in such defense. 
 
 § 247. (Added in 1849.) If a demurrer, answer or reply be frivo- 
 lous, the party prejudiced thereby, upon a previous notice of five 
 days, may apply to a judge of the court, either in or out ot the 
 court, for judgment thereon, and judgment may be given accord- 
 ingly. 
 
§§248-250.] coDj; of peocedxtee. 168 
 
 CHAPTER II. 
 
 Issues mid the Mode of Trial. 
 
 Section 248. The difllerent kinds of iseaee. 
 249. Issue of law. 
 S50 TsBiifi of f&ptf 
 261. On issues of "boti law and fact, the issue of law to be first tried. 
 
 252. Trial, what. 
 
 253. Issue of fact to be tried by Jury, unless waived or reference 
 
 ordered. 
 
 254. Other issues to be tried by the court. 
 
 255. All issues to be tried before a single judge. 
 
 256. Either party may give notice of trial ; note of issue. 
 
 257. Order of disposing of issues on the calendar. 
 
 § 248. (Being § 303 of 1848.) Issues arise upon the pleadings, 
 when a fact or conclusion of law is maintained by the one party 
 and controverted by the other. They are of two kinds : 
 
 1. Of law ; and 
 
 2. Of fact. 
 
 § 349. (Being § 204 of 1848.) An issue of law arises, 
 
 1. Upon a demurrer to the complaint ; or 
 
 2. Upon an allegation of fact in a pleading, by the one party, the 
 truth of which is not controverted by the other. 
 
 (Am'd in 1849.) 
 
 § 249. (As am'd in 1849.) An issue ot law arises, 
 1. Upon a demurrer to the complaint, answer or reply, or to some 
 part thereof 
 
 § 350. (Being § 205 of 1848.) An issue of fact arises, 
 1. Upon a material allegation of the complaint controverted by 
 the answer; or, 
 
 3. Upon new matter in the answer controverted by the reply ; or, 
 3. Upon new matter in the reply. 
 
 (Am'd in 1849.) 
 
 § 250. (As am'd in 1849.) An issue of fact arises, 
 
 1. Upon a material allegation in the complaint controverted by 
 
 the answer; or, 
 3. Upon new matter in the answer controverted by the reply ; or, 
 3. Upon new matter in the reply, except an issue of law is joined 
 
 ihereon. 
 
164 CODE OP PROCBDUEB. [§§ 251-253. 
 
 § 351. (Being § 206 of 1848.) Issues both of law and of fact may 
 arise upon the pleadings in the same action. In such case^^the issues 
 of law must be first tried, unless ,tl^e„cpurt, otherwise direct. 
 
 (Am'd in 1849.) 
 
 § 231. (As am'd in 184S.) -Issues both of law and of fact may 
 arise upon different parts of the pleadings, in the same action. In 
 such cases, the issues of law must be first tried, unless the court 
 otherwise direct 
 
 §252. (Being § 307 of 1848.) A trial is the judicial examination 
 of the issues between the parties, whether they be issues of law or 
 of fact 
 
 (Am'd in 1851 and 1852.) 
 
 V § 253 (As am'd in 1851.) An mue of law must be tried by the court, 
 unless it be referred, as provided in sections 370 and 371. An issue of 
 fact in an action for the recovery of money only, or of spedfk re<d 
 or personal property, or for a divorce from the marriage contract 
 on the ground of adultery, must be tried by a jury, unless a jury 
 trial be waived, as provided in section 266, or a reference be ordered 
 as provided in sections 270 and 271. 
 
 § 252. (As am'd in 1852.) .X trial is the judidcd examination of 
 the issues between the parties, whether they be issues of law or of fact. 
 
 § 353. (Being § 208 of 1848.) "Whenever, in an action for the 
 recovery of money only, or of specific -real or personal property, 
 there shall be an issue of fact, it must be tried by a jury, imless a 
 jury trial be waived, as provided In section 221, or a reference be 
 ordered as provided in sections 235 and 226. 
 
 .(Am'd in 1849 and 1852.) 
 
 § 353. (As am'd in 1849.) Whenever, in an action for the recovery 
 of money only, or of specific real or personal property, there shall 
 be an issue of fact, it must be tried by a jury, unless a jury trial be 
 waived as provided in section 366, or reference be ordered as pro- 
 vided in sections 270 and 371. 
 
 § 253. (As ain'd in 1853.) An isme of law must be tried by the 
 eoiirt, unless it be r^erred, as provided in secUons 370 and 371. An 
 issue of fact, in an action for the recovery of money only, or of 
 specific real or personal property, or for a divorce from the marriage 
 
§§ 254, 255.] CODE OF PBOCEDUBE. 165 
 
 contract on the grmmd of adultery, iriust be tried by a, jtiry, unless a 
 juiy trial be waived as provided in section 266, or a reference be 
 ordered as provided in sections 370 and 271. 
 
 § 254 (Being § 309 of 1848.) Every other issue is triable by the 
 court, which, however, may order the whole issue, or any specific 
 question of fact involved therein, to be tried by a jury ; or may 
 refer it, as provided in sections 325 and 226. 
 
 (Am'd in 1849.) 
 
 § 254. (As aUi'd in 1849.) Every other issue is triable by the court, 
 which, however, may order the whole issue, or any specific question 
 of fact involved therein, to be tried by a jury; or may refer it, as 
 provided in sections 270 and 371. 
 
 § 255. (Bemg § 210 of 1848.) All issues, whether of law or fact, 
 triable by a jury or by the court, shall be tried before a single judge. 
 Issues in the supreme court shall be tried at the circuit courts. 
 
 (Am'd in 1849, 1851 and 1852.) 
 
 § 255. (As am'd in 1849.) All issues, whether of law or fact, triable 
 by a jury or by the court, shall be tried before a single judge. 
 Issues of fact in the supreme court shall be tried at the circuit 
 courts. Issues of law, in the first instance, at a circuit court or 
 special term. 
 
 § 255. (As, am'd in 1851.) All issues of fact, triable by a jury or 
 by court, must be tried before a single judge. Issues of fact in the 
 supreme court must be tried at a circuit court when the trial is ly 
 jwry, otherwise at a circuit court or special term, as the court may by 
 its rules prescribe. Issues of law must be tried at a general term, 
 unless the court order the trial to be had at a special term. 
 
 § 255. (As ajn'd in 1853.) All issues of fact, triable by a jury or 
 by the court, must be tried before a single judge. Issues of fact in 
 the supreme court must be tried at a circuit covirt when the trial is 
 by juiy, otherwise at a circuit court or special term, as the court 
 may by its rule? prescribe. Issues of law must be tried at a circuU 
 court or tpedal term, and shall, unless the court otherwise direct, 
 have preference on the calendar. 
 
166 CODE OP PROCKDUEB. [§ 256. 
 
 § 356. (Being § 211 of 1848.) At any time after issue, and at least 
 ten days before the court, either party may give notice of trial. The 
 party giving the notice shall furnish the clerk, at least four days 
 before the court, with a note of the issue, containing the title of the 
 action; the names of the attorneys, and the time when the last plead- 
 ing was served, and the clerk shall thereupon enter the cause upon 
 the calendar according to the date of the issue. 
 
 (Am'd in 1858, 1859, 1860, 1863, 1865 and 1869.) 
 
 § 356. (As am'd in 1858.) At any time after issue, and at least ten 
 days before the court, either party may give notice of trial. The 
 party giving the notice shall furnish the clerk, at least eight days 
 before the court, with, etc. (as in 1848). 
 
 § 356. (As am'd In 1859.) At any time after Issue, and at least 
 fov/rteen days before the court, either party may, etc. (as in 1858). 
 
 § 356. (As am'd In 1860.) Same as § 356, as amended Id 1859^ 
 except that the following words were added thereto at the end 
 thereof : 
 
 " In the first judicial district, there need be hvt one notice of trial, 
 and one note of issue from either party, and the action shall then 
 remain on the calendar until disposed of, and when called, may he 
 brought to trial by the party giving the notice. In the same district 
 the courts may direct the employment of a stenographer, in such eases 
 as appear to them to require it, and may order the enrpense occasioned 
 thereby to be paid by the pa/rties, not exceeding, however, f/ee dollars 
 a day to each party." 
 
 § 256. (As am'd m 1863.) Same as § 256, as amended in 1860, 
 except that all after the word "notice" in the second paragraph 
 was stricken out and the following words added to said section: 
 
 " In every action in 'which issue of fact is now joined, and 
 the action is now placed . upon the calendar qf the supreme 
 court of the first judicial district or of the superior court of the 
 city of New York, or of the court of common pleas for the city 
 and county of New York, the party who shall have filed such note 
 of issue shall, as a condition precedent to such action being 
 brought to trial, pay to the clerk of the court the sum of three dol- 
 lars ; and in every action in either of the said courts, commenced 
 
§ 256.] CODE OF PEOCEDTTKE. 167 
 
 after the passage of this act, the party who shall file therein a first 
 note of issue of fact shall, as a condition precedent to such filing, 
 pay to the clerk of the court the sum of three dollars ; and the 
 amounts so received shall be accounted for and paid over monthly, 
 by the clerk of each of said courts, to the comptroller of the city of 
 New York, and by him deposited in the county treasury, to be used 
 as a fund for the payment of the salaries of stenographers employed 
 in said courts, as provided for in this section. If the fund thus cre- 
 ated be inadequate to pay such salaries, the additional amount 
 necessary for such payment shall be appropriated and paid from 
 the fund of county contingencies, to which fund any surplus of the 
 sums so paid over to the comptroller, as hereinbefore provided, shall 
 be credited. 
 
 Each of the courts hereinbefore named shall appoint a stenog- 
 rapher for the circuit, trial term or special term, which constitutes 
 a separate branch of such court, who shall be a sworn officer of the 
 court, shall hold office during the pleasure of the court, and shall be 
 paid a salary of fifteen hundred dollars per annum, in like manner 
 as the salaries of other officers of the courts are now paid. It shall 
 be the duty of every stenographer so appointed for any circuit, trial 
 term or special term, under the direction of the presiding judge 
 thereof, to take full stenogi-aphic notes of all proceedings in every 
 trial thereat ; and in case the presiding judge shall require a tran- 
 script of said stenographic notes, he may order the expense thereof 
 to be paid equally by the parties to the action, at the rate of ten 
 cents for every one hundred words so transcribed, and may enforce 
 payment thereof; and the amount so paid, together with the sum 
 paid, as a condition precedent to the cause being brought to trial, or 
 to the first note of issue being filed, as hereinbefore provided, shall 
 be deemed a necessary disbursement within the meaning of section 
 311 of the code of procedure, and shaU be allowed as such to the 
 prevailing party in the action. 
 
 At any extra circuit, trial term or special term of said courts the 
 presiding judge thereof shall appoint a stenographer for such extra 
 circuit or term, who shall, in like manner as aforesaid, be a sworn 
 officer, and who shall be paid a compensation at the rate and in the 
 manner hereinbefore provided. "When a court of oyer and terininer 
 shall be held in and for the city and county of New York, the pre- 
 siding judge thereof shall designate one of the stenographers of the 
 supreme court to act as stenographer of such court of oyer and ter- 
 
168 CODE OF PEOCEDUBE. [§ 256. 
 
 tdner during its sessiotl, Who shall, in like maimer as aforesaid, be 
 a sworn officerj but who shall receive no compensation in addition 
 to his salary, as hereinbefore provided, except that in case a tran- 
 script of his stenographic notes, taken on the trial of any criminal 
 cause, be re(i|iiired for the Use of the presiding judge, or the district- 
 attorney, the expense thereof shall, on the order of such judge or 
 district-attorney, be paid as a county charge at the rate hereinbefore 
 specified. 
 
 In other counties of this state, on trials of issues of fact, at an> 
 circuit court, or court of oyer and terminer, it shall be lawful for 
 the presiding justice, in his discretion, to employ a stenographer, 
 who shall be entitled to such compensation as shall be certified by 
 such justice, not exceeding five dollars for each days' attendance at 
 such court, at the request of such justice, which compensation shall 
 be a charge upon the cotmties in which such courts shadl be held 
 respectively, and shall be audited, allowed, and paid in like manner 
 as other county charges are audited, allowed and paid. It shall be 
 the duty of such stenographer to furnish to any party to such trials, 
 upon request, a copy of the evidence and proceedings taken by him 
 on such trials, or of such part thereof as may be required^ on payment, 
 on behalf of such party, of six cents for every one hundred words 
 of the copy so furnished. 
 
 § 256. (As am'd in 1865.) Same as § 256, as amended in 1869 (poaf), 
 except that it did not contain the words at the end thereof printed 
 in italics. 
 
 § 236. (As am'd in 1869.) At any time after issue, and at least 
 fourteen days before the' court, either party may give notice of trial. 
 The party giving the notice shall furnish the clerk, at least eight 
 days before the court, with a note of the issue containing the title 
 of the action, the names of the attorneys, and the time when the 
 last pleading was served, and the derk shall thereupon enter 
 the cause upon the calendar according to the date of the issue. 
 In the first judicial district there need be but one notice of 
 trial, and one note of issue from either party; and the action 
 shall then remain on the calendar untU disposed of, and, when 
 called, may be brought to trial by the party giving the notica 
 In every action in which issue of feet is now joined, and the action 
 is now placed upon the calendar of the supreme court of the first 
 judicial district, or of the superior court of the city of New York, 
 
§ 266,] CODE OP PEOCEDUEB. 169 
 
 or of the court of common pleas for the city and comity of New 
 Tork, the party who shall have filed such note of issue, shall, as a 
 condition precedent to such action being brought to trial, pay to the 
 clerk of the court the sum of three dollars ; and in every action in 
 either of the said courts, commenced after the passage of this act, 
 the party who shall file therein a first note of issue of fact, shall, as 
 a condition precedent to such filing, pay to the clerk of the court 
 the sum of three dollars ; and the amounts so received shall be 
 accounted for under oath, and paid over monthly, by the clerk of 
 each of said courts, to the comptroller of the city of New York, 
 and by him deposited in the county treasury, to be used as a fund 
 for the payment of the salaries of stenographers employed in said 
 courts, as provided for in this section. If the fimd thus created be 
 inadequate to pay such salaries, the additional amount necessary for 
 such payment shall be appropriated and paid fiom the fund of 
 county contingencies, to which fimd any surplus of ihe sums so paid 
 over to the comptroller, as hereinbefore provided, shall be credited. 
 
 Each of the courts hereinbefore named shall appoint a stenog- 
 rapher for the circuit, trial term or special term, at which issues of 
 fact are tried, which constitutes a separate branch of such coiul;, who 
 shall be a sworn officer of the court, shall hold office during the 
 pleasure of the court, and shall be paid a salary of twenly-five hun- 
 dred dollars per annum, in like manner as the salaries of the other 
 officers of the courts are now paid. It shall be the duty of every 
 stenographer so appointed for any circuit, trial term or special term, 
 under the direction of the presiding judge thereof, to take full 
 stenographic notes of all proceedings in every trial thereat; and in 
 case the presiding judge shall require a transcript of said steno- 
 graphic notes, he may order the expense thereof to be paid equally 
 by the partis to flie action, at the rate of ten cents for every one 
 hundred words so transcribed, and may enforce payment thereof ; 
 and the amoimt so paid, together with the sum paid as a condition 
 precedent to the cause being brought tO trial, or to the first note of 
 issue being filed, as hereinbefore provided, shall be deemed a neces- 
 sary disbursement within the meaning of section 311 of the code of 
 procedure, and shall be allowed as such to the prevailing party in 
 the action. 
 
 At any extra drcnit, trial term or special term of said courts, the 
 preading judge thereof shall appoint a stenographer for such extra 
 circuit or term, who shall, in like manner as aforesaid, be a sworn 
 15 
 
110 CODE OF PKOCEDrEE. [§256. 
 
 oflBcer, and who shall be paid a compensation at the rate and in the 
 manner hereinbefore provided. When a court of oyer and terminer 
 shall be held in and for the city and county of New York, the pre- 
 siding judge thereof shall designate one of the stenographers of the 
 supreme court to act as stenographer of such court of oyer and 
 terminer during its session, who shall, in like manner as aforesaid, 
 be a sworn officer, but who shall receive no compensation in addition 
 to his salary as hereinbefore provided, except that in case a toranscript 
 of his stenographic notes taken on the trial of any criminal cause 
 be required for the use of the presiding judge, or the district attorney, 
 the expense thereof shall, on the order of such judge or district 
 attorney, be paid as a coimty charge at the rate hereinbefore 
 specified. 
 
 The surrogate of the county of New York is hereby authorized 
 and directed to appoint a stenographer to the surrogate's court of 
 said county, who shall be a sworn officer of the court, and shall be 
 paid a salary of three thousand dollars a year, in like manner as the 
 salaries of clerks in said court are now paid by law from the fees of 
 said court paid into the treasury of the county of New York. The 
 stenographer so appointed shall be skilled in the practice of his art, 
 and shall hold his position during good behavior, and so long as he 
 efficiently discharges the duties of his office. He shall, under the 
 direction of the said surrogate, take full stenographic notes of all 
 proceedings in said com-t, in which oral proofs shall be given, which 
 notes shall be fairly transcribed, and, after being signed by the wit- 
 nesses, deponent or affiant, shall be ffied in the office of said 
 surrogate. By consent of the parties to the proceeding in which 
 such proofs shall be taken, and said surrogate, the signing of such 
 record of proof by the witness, deponent or affiant, may be waived, 
 in which case such record, after being authenticated by {he certifi- 
 cate of said stenographer, or of said surrogate, shall be deemed to be 
 the record of any proofs or proceedings so taken. 
 
 In other counties of this State, on trials of issues of fact at any 
 circuit court or court of oyer and terminer, it shall be lawful for 
 the presiding justice, in his discretion, to employ a. stenographer, 
 who shall be entitled to such compensation as shall be certified by 
 such justice, not exceeding five dollars for each days' attendance at 
 such court, at the request of such justice, and ten cents a mile for 
 travel from his place of residence to the place where the court is 
 held, together with such sum for stationery as the presiding justice 
 
§§ 25^, 258.] CODE OF PEOCEDUEE. 171 
 
 shall certify, which compensation shall be a charge upon the covm- 
 ties in which such courts shall be held respectively, and shall be 
 allowed and paid from the court fund in like manner as other 
 charges are allowed and paid from it. It shall be the duty of such 
 stenographer to furnish to any party to such trials, upon request, a 
 copy of the evidence and proceedings taken by him on such trials, 
 or of such part thereof as may be required, on payment, on behalf 
 of such party, of ten cents for every one hundred words of the copy 
 so furnished. 
 
 In the surrogate Courts of the counties of New York and Kings, 
 and of otTier counties in which a stenograplier is or shall he duly 
 authorized to take stenographic notes of proceedings in said courts in 
 which oral proofs shaU be given, in case of the death of any witness, 
 deponent or affiant, after examination and before the stenographer's 
 notes of such examination shaU have been transcribed, such notes, 
 after being fairly transcribed and authenticated by the certificate of 
 the surrogate, shall be filed in his office and be deemed to be the record 
 of the proofs so taken, mthout any signing thereof by such witness. 
 
 § 857. (Being | 312 of 1848.) The issues on the calendar shall 
 be disposed of in the following order ; imless, for the convenience 
 of parties, or the dispatch of business, the court shall otherwise 
 direct : 
 
 1. Issues of fact to be tried by a jury. 
 
 3. Issues of fact to be tried by the court. 
 
 3. Issues of law. 
 
 CHAPTER m. 
 Trial by Jury. 
 
 Skotion 258. Either party may bring issue to trial. 
 
 259. Plaintiff to fnrmsli court with copy, enmmons, pleadings, etc. 
 
 260. General and special verdicts defined 
 
 261. Verdict in action for recovery of specific personal property, when 
 
 in action for recovery of mon^ only, or real properfy, jury may 
 render either general or special verdict ; and when court may 
 direct special Miding. 
 
 262. On special finding, with general verdict^ former to control. 
 
 263. In actions for recovery of money only, jury to assess damages. 
 
 264. Entry of verdict. 
 
 265. Judgment, when to he entered. 
 
 § 358. (Being § 213 of 1848.) Either party giving the notice may 
 bring the issue to trial, and, in the absence of the adverse party, 
 
1^2 CODK 01" PEOCEDUEB. [§§ 258—261. 
 
 unless the court, for good cause, otherwise direct, may proceed 
 with his case, and take a dismissal of the complaint, or a verdict or 
 judgment, as the case may require. 
 (Am'd in 1851.) 
 
 § 258. (As am'd in 1851.) Either parly giving the notice, may 
 bring the issue to trial, and, in the absence of the adverse party, 
 unless the court, for good cause, otherwise direct, may proceed 
 with his case, and take a dismissal of the complaint, or a verdict or 
 judgment, as the case may require. A sepc^ate trial beticeen a 
 plaintiff amd amy of the semral defendamta, may ie oMtmied by the court, 
 whenewr, in its opinion, justice wiU thereby be promoted. 
 
 § 259. (Being § 214 of 1848.) The plaintiff shall furnish the court 
 with a copy of the summons and pleadings, with the offer of the 
 defendant, if any shall have been made. 
 
 (Am'd in 1851.) 
 
 § 259. (As am'd in 1851.) When the issue shall bebrought to trial 
 by the plaintiff, he shall furnish the court with a copy of the sum- 
 mons and pleadings, with the offer of defendant, if any shall have 
 been made. When the issue shaU be brought to trial by the defendant, 
 and the plaintiff shMl neglect or refuse to famish the cowrt uith a copy 
 of the smnmons and pleadings amd the offer of the defendant, the 
 same may be furnished by the defendant. 
 
 % 360. (Being § 215 of 1848.) This verdict of a jury is either gen- 
 eral or special. A general verdict is that by which they pronounce 
 generally upon all or any of the issues, either in favor of the plaintifT 
 or defendant. A special verdict is that by which the jury find the 
 facts only, leaving the judgment to the court. 
 
 (Am'd in 1849.) 
 
 § 260. (As am'd in 1849.) A general verdict is that by vrhich 
 the juiy pronounce generally upon all or any of the issues, either 
 in favor of the plaintiff or defendant. A special verdict is that by 
 ■which the jury find the facts only, leaving the judgment to the 
 court 
 
 § 261. (Being. § 216 of 1848.) In every action for the recovery of 
 money only, or specific real or personal property, the jury, in their 
 
§§ 261-263.] CODE OF PBOCBDUEB. 173 
 
 discretion, may render a general or special verdict. In all other 
 cases the court may direct the jury to find a special verdict in 
 ■writing upon all or any of the issues ; or may instruct them, if 
 they render a general verdict, to find upon particular questions of 
 fact, to be stated in writing, and may direct a written finding 
 thereon. The special verdict or finding shall be filed with the 
 clerk, and entered upon the minutes. 
 (Am'd in 1849.) 
 
 § 261, (As am'd in 1849.) In an action for the recovery ofspecifle 
 personal property, if the property have not ieen delivered to the 
 plaintiff, or the defendant iy his answer claim a return thereof, the 
 jury shall assess the value of the property, and if tlieir verdict be in 
 fa/tor of the plaintiff, or if they find in favor of the defendant, and 
 that he is entitled to a return tltereof; and may at the sam£ time assess 
 the damages, if any are claimed in the com/plaint or answer, which 
 the prevaMng pa/rty has sustained iy reason of the detention or 
 taking and withholding such property. 
 
 In every action for the recovery of money only, or specific real 
 property, the jury, in their discretion, may render a general or 
 special verdict. In all other cases the court may direct the jury to 
 find a special verdict in writing upon all or any of the issues ; ajul 
 in aU cases may instruct them, if they render a general verdict, to 
 find upon particular questions of fact, to be stated in writing, and 
 may direct a written finding thereon. The special verdict or find- 
 ing shall be filed with the clerk, and entered upon the minutes. 
 
 § 262. (Being § 217 of 1848.) Where a special findmg of facts 
 shall be inconsistent with the general verdict, the former shall con- 
 trol the latter, and the court shall give judgment accordingly. 
 
 § 263. (Being § 218 of 1848.) When a verdict shall be found for 
 the plaintiff in an action for the recovery of money only, the jury 
 shall also assess the amount of the recovery. 
 
 (Am'd in 1851.) 
 
 § 263. (As am'd in 1851.) When a verdict is found for the 
 plaintiff in an action for the recovery of money, or for the defend- 
 ant when a set-off for the recovery of money is estaUished, beyond 
 the amount of the plaintiff's claim as established, the jury must also 
 assess the amount of the recovery ; they may also, wnder the diree- 
 15* 
 
174 CODE OF PBOCEDTJKE. [§ 264. 
 
 tivn of the court, assess the amount of the recovery when the court 
 gine judgment for the plaintiff on the answer. If a set-off, estab- 
 lished at the trial, exceed the plaintiff's demand so established, judg- 
 ment for the defendant must be given for the excess ; or if it appear 
 that the defendant is entitled to any other affirmative relief, judgment 
 must be given accordingly. 
 
 § 364 (Being § 219 of 1848.) TJpon receiving a verdict, the court 
 Bhall direct an entry to be made, specifying the time and place of 
 the trial, the names of the jurors and witnesses, the verdict, and 
 either the judgment to be rendered thereon, or an order that the 
 case be reserved for argument or further consideration. 
 
 (Am'd in 1851 and 1853.) 
 
 § 364. (As am'd in 1851.) TJpon receiving a verdict, the cl&rk shaU 
 make an entry in his minutes, specifying the time and place of the 
 trial, the names of the jurors and witnesses, the verdict, and either 
 the judgment to be rendered thereon, or an order that the cause be 
 reserved for argument or further consideration. 
 
 The justice trying the ca/use may, in his discretion, and upon such 
 terms as ma/y be just, 'stay tlie entry of judgment and fv/rther pro- 
 ceedings until the hearing and final decision of a motion for new 
 trial, or to set aside the verdict or judgment, upon the grounds of 
 surprise or irregukmty, or upon a case or bUl of exceptions. 
 
 Th^ court shall ha/Be power to order a verdict to be entered, subject 
 to the opinion of the court thereon. The judge who tries tTie cause 
 m/juy, in his discretion, entertain a motion, to be made on his minutes, 
 to set aside a verdict and grant a new trial upon exertions, or as 
 being against evidence, or for insufficient evidence, or for excessive 
 damages; but such motion in actions h&reafter tried, shall only be 
 heard upon the minutes at the same term, or circuit at which the trial 
 is had; and if not heard at the same term or circuit in actions here- 
 after tried, the motion must be made upon a case or bUl of exceptions, 
 or upon appeal. When such motion is heard and decided upon the 
 Tninmtes of the judge, an appeal may be taken from such decision, and 
 in case of appeal, a case or bill of exceptions must be prepared and set- 
 tled in the usu(U farm, and upon which case or bill of exceptions the 
 argum,ent of the appeal must be had. 
 
 After the trial of a cause either party may, in the manner pre- 
 scribed by law and the rules of the court in which the action is pend- 
 
§§264,265.] COI>E OP PEOCEDUEE. 175: 
 
 ing, make and, settle a cage or MU of exceptions, which, when settled, 
 shall bejiled, and when filed after judgment, shaU be attached to and 
 become apart of the judgment roU. 
 
 % 864. (As am'd in 1852.) Upon receiving a verdict, the clerk shall 
 make an entry in his minutes, specifying the time and place of the . 
 trial, the names of the jurors and witnesses, the verdict, and either 
 the judgment rendered thereon, or an order that the cause he 
 reserved for argument or further consideration, jff a different 
 direction be not given by the court, the clerk must enter judgment in, 
 conformity with the verdict. If an exception be taken, it may be 
 reduced to writing at the time, or entered in the judge's minutes and 
 afterward settled as provided by the rules of the court, and then 
 stated in loriUng in a case, or sepa/rately, with so much of the evidence 
 as may be matericd to the questions to be raised, but need not be sealed 
 or signed, nor n£ed a bill of exceptions be mode. If the exceptions be 
 in the first instan/x stated in a case, and it be afterward necessary 
 to separate them, the separation may be made under the direction qf 
 the court, or a judge thereof. The judge who tries the cause may, in 
 his discretion, entertain a motion to be made on his minutes to set 
 aside a verdict and grant a new trial upon exceptions, or for insuffi- 
 cient evidence, or for excessive damages; but such motion in actions 
 hereafter tried, if heard upon the minutes, can only be hea/rd at the 
 sa/me term or circuit at which the trial is had. When such motion is 
 heard and decided upon the minutes of the judge, and an appeal is 
 taken from the decision, a case or exceptions mvM be settled in the 
 usual form, upon which the argument of the appeal must be had. 
 
 § 265. (Being § 220 of 1848.) Judgment shall be entered by the 
 clerk, in conformity to the verdict, after the expiration of four days, 
 unless the court order the case to be reserved for argument or fur- 
 ther consideration. 
 
 (Am'd m 1851, 1852 and 1857.) 
 
 § 365. (As am'd in 1851.) Motions for a new trial on a ease or biZ 
 of exceptions, motions for judgment on a special verdict, or case 
 reserved stibject to the opinion of the court, shall in the first instance 
 be heard and decided at a special term, unless the justice trying the 
 cause shall direct it to be hea/rd in the first instance at a general term, 
 If such order is granted, directing it to be hea/rd at a general term. 
 
1V6 CODE OF PBOCKDUEB. [§ ^^^' 
 
 Stick motion may then be notieed and hr aught, on to argitment hy 
 either pa/rty at-a general term of tuchcov/rt, and the court thali hear 
 and decide the same. 
 
 §265. (As am'd in 1852.) A motum for anew trial, on a case 
 or exceptions, or otherwise, and an application for judgment on 
 special verdict or case reserved /or a/rgwment or fwrther cormderation, 
 mwst in the first instance be beard and decided at th^ ekewit or 
 special term, accept that, when exceptions aire taken, the judge toying 
 the cause ma7, at the' trial, direct tTiem to be heard in the first 
 instance at a general term, and the judgment in the msantime im- 
 pended; and in that ease they must ie there heard m thef/rstinMamee, 
 aMd judgment there given. Amd where upon a trioil, the ease presents ority 
 questions of lam, the judge may direct a verdict, suigeet to the opinion of 
 the Cfuwrt at a general term, and in that case the application for Judg- 
 ment must be made at the general term. 
 
 § 265. (As am'd in 1857.) A motion for a new trial, on a case 
 or exceptions, or otherwise, and an application for judgment on 
 a special verdict or case reserved for argument or further considera- 
 tion,, must in the first instance be heard and decided at the circuit 
 or special term, except that when exceptions are taken the judge 
 trying the cause may, at the trial, direct them to be heard in the 
 first instance at the general term, and the judgment in tlie mean- 
 time suspended ; and in that case they must be there heard in the 
 first instance, and judgment there girenl And when, upon a trial, 
 the case presents only questions of law, the judge may direct a 
 verdict, subject to the opinion of the court at the general term_, and 
 in that case the application, for judgment must lie made at the 
 general term. JBlvery judgment rendered upon a i>erdw:t. taken sub- 
 ject to the opinion of the court at a general term, may he reviewed by 
 the court of appeals in the same manner, emd with the like effect as 
 if exceptions Aad been duly taken at the proper time ; provided it sh<Ul 
 appear by the retu/rn that questions of lam were invoked m the rendition 
 of the judgment. 
 
§§ 266, 267.} " CODB OF FBOCEDUBB. 177 
 
 CHAPTER IV. 
 Trial by the Cowrt, 
 
 SscnOK 266. Trial by jnry, how waived. 
 
 267. On trial by the court, judgment to be given in twenty days. 
 
 268. Exceptions, how and when taken. 
 
 269. Proceedings npon judgment on issue of law. 
 
 § 266. (Being § 221 of 1848.) The trial by jury may be -waived by 
 the several parties to an issue of fact, in the manner following : 
 
 1. By failing to appear at the trial. 
 
 2. By written consent, in person or by attorney, filed with the 
 clerk. 
 
 3. By oral consent in open court, entered in the minutes. 
 (Am'd in 1849.) 
 
 § 266. (As am'd in 1849.) Trial by jury may be waived by the 
 several parties, to an issue of fact, in actions on contract, and with the 
 assent of the court, in other actions, in the manner following : 
 
 1. By failing to appear at the trial. 
 
 2. By written consent, in person or by attorney, filed with the 
 clerk. 
 
 3. By oral consent in open court, entered in the minutea 
 
 § 267. (Being § 222 of 1848.) Upon a trial of a question of fact by 
 the court, its decision shall be given in writing, and filed with the 
 clerk, wiUiin twenty days after the court at which the trial took 
 place. In giving the decision, the facts found shaU be first stated, 
 and then the conclusion of law upon them. Judgment upon the 
 decision shall be entered accordingly. 
 
 (Am'd in 1849, 1860, 1865 and 1870.) 
 
 § 267. (As am'd in 1849.) Upon a trial of a question of fact by the 
 court, its decision shall be given in writing, and filed with the clerk, 
 within twenty days after the court at which the trial took place. 
 Judgment upon the decision shall be entered accordingly. 
 
 § 267. (As am'd in 1860.) Upon a trial of a question of fact by 
 the court, its decision shall be given in writii^, and shall contain a 
 
il8 CODE OF PEOCBDtJKE. [§§267,268. 
 
 Statement of tM fMts found, amd the conehiMons of law aeparatet^ ; 
 and upon a trial of an issue of law, the decision shaU he made in the 
 same manner, staling the cmdusions of Itm. Such decision shall be 
 filed -with the clerk within twenty days after the court at which the 
 trial took place. Judgment upon the decision shall be entered 
 accordingly. 
 
 § 267. (As am'd in 1865.) Same as § 267, as amended in 1860, 
 except that the following words were added at the end thereof : 
 
 !' If upon moMon, by either paHy, to a general or special teirm, of the 
 court, it shaU be made to appea/r that the decision is unreasoncMy delayed^ 
 the court m/i/y make am order dbsohUe for a new trial, or may ord&r a 
 neu> trial unless the decision shaU be fled by a time to be specified in the 
 order. The costs of the former trial shall abide the event of the neio 
 trial." 
 
 § 267. (As am'd in 1870.) Upon the trial of a question of faijt by 
 the court, its decision shall. be given in writing, and shall contain 
 a. statement of the facts found, and the conclusions of law sepa- 
 rately ; and upon a trial of an issue of law, the decision shall be 
 made in the same manner, stating the conclusions of law. . Such 
 decisions shall be filed with the clerk within twenty days after the 
 court at which the trial took place. Judgment upon the decision 
 shall be entered accordingly, fov/r days thereafter. If upon motion, 
 by either'party, to a general or special term of the court, it shall be 
 made to appear that the decision is unreasonably delayed, the 
 court may make an order absolute for a new trial, or may order a 
 new trial unless the decision shall be filed by a time to be specified 
 in the order. The costs of the former trial shall abide the event of 
 the new trial. 
 
 § 368. (Being § 233 of 1848.) Either party may except to a decision 
 on a matter of law arising upon such trial, within ten days after 
 notice thereof, in the same maimer and with the same efiect, as upon 
 a trial by jury. And either party desiring a review upon the evi- 
 dence appearing on the trial, either of the questions of fact or of 
 laWj may, at any time within ten days after notice of the judgment, 
 make a case containing so much of the evidence as may be material 
 to the question to be raised. The case shall be settled according to 
 Ihie existing practice. 
 . (Am'd in 1851, 1853, 1866, 1867 and 1869.) 
 
,§ 268.] CODE OP PKOCKDUEE. 179 
 
 ■ § 268. (As ajn'd in 1851.) For the purposes of an a/ppeai either 
 party may except to a decision on a matter of law arising upon such 
 trial, within ten days after notice, in writing, of the judgment, in the 
 same manner and with the same effect as upon a trial by jury, and 
 either party desiring a review upon the evidence appearing on the 
 trial, either of the questions of fact or of law may, at any time 
 within ten days after notice of the judgment, or irithin such time as 
 may he prescribed by the rules of the court, make a biU of exceptions 
 or case containing so much of the evidence and such exceptions as 
 may be material to the question to be raised. The bOl of excepUons 
 or case shall be settled as provided by the rules of the court, and tlte 
 judge, in settling such case, shaU briefly specify the fa/;ts found by Mm 
 and his conclusions of law. 
 
 % 368. (As am'd in 1852.) For the purposes of an appeal, either 
 party may except to a decision on a matter of law arising upon 
 such trial, within ten days after notice, in writing, of the judgment, 
 in the same manner and with the same effect as upon a trial by 
 
 And either party desiring a review upon the evidence appearing 
 on the trial, either of the questions of fact or of law, may, at any 
 time witliin ten days after notice of the judgment, or witlin such 
 time as may be prescribed by the rules of the court, make a case or 
 exceptions in like manner as upon a trial by jury, except that the 
 judge, in settling the case, must briefly specify the facts found by him, 
 and his conclusions of law. But the questions, whether of fad or of 
 law, arising upon the trial, can only be reversed in the manner pre- 
 scribed by this secHon, the questions of law in ei>ery stage of the a/ppeal, 
 and the 'questions of fact upon the appeal to the general term of the 
 same court, as prescribed in section 348. 
 
 § 268. (As am'd in 1860.) Same as | 268, as amended in 1853, ex- 
 cept that the following words were added at the end thereof : 
 
 Ifo finding of facts by the general term shatt be required for the pwr- 
 pose of review in the court of appeals, and- if the judgm^mt be rece/rsed 
 at the general term, it shaU not be deemed to have been reversed, on ques- 
 tions of fa/et, unless so staled in the JTtdgment of reversal; and in that 
 ease the question whether the judgment should have been reversed, either 
 jwpon quesHans of fact or of law, shaU be open to review in the court of 
 appeals. 
 
180 CODB OP PEOCBDTJEE. [§ 268. 
 
 The pra/tmons of thU section, a/nd oiho of gee^on 373, as they <xire 
 T^rebif amended, Shan apph/ tot ajipetUs now pending, as wM as to those 
 
 § 368. (As am'd in 1867.) Same as § 368 as amended in I860, ex- 
 cept that paragraph one was amended so as to read as follows ! 
 
 (1.) For the purposes of an appeal, either party may except to a 
 decision on a matter of Islw arising upon such trial, within ten days 
 after notice, in writing, of the judgment, in the same manner and 
 with the same eflfect as upon a trial Ta^^wry ■,.(promded, however, that 
 whe/re the decision, filed under section 367 does not authorise a final 
 jiidgment,but direets further proceedings before a referee or other- 
 viise, either party may move for a new trial at general term, and for thai 
 purpose may, mthin ten days after notice <}f the decision being filed, 
 except thereto and make a case or eaxepUons as above provided m ease 
 
 § 268. (As am'd in 1869.) For the purposes of an appeal, either 
 party may except to a decision on a matter of law arising upon 
 such trial, within ten days after notice, in writing, of the judgment, 
 m the same manner and with the same effect as upon a trial by 
 jury; provided, however, that where the decision filed under sec- 
 tion 367 does not authorize a final judgment, but directs further 
 proceedings before a referee or otherwise, either party may move 
 for a new trial at graieral term, and for that purpose may, within 
 ten days after notice of the decision being filed, except thereto, and 
 make a case or exceptions, as above provided in case of an appeal. 
 And either party desiring a review upon the evidence appearing 
 on the trial, either of the questions of fact or of law, may, at ai^ 
 time within ten days after notice of the judgment, or within such 
 time as may be prescribed by the rules of the court, make a case or 
 exceptions m like manner as upon a trial by jury, except that the 
 judge, in settling the case, must briefly specify the facts found by 
 him, and hfe conclusions of law. But the questions, Whether of 
 fact or of law, arising upon the trial, can only be reviewed in the 
 manner prescribed by this section, the questions of law in every 
 stage' of the appeal, and the questions of fact upon the appeal to 
 the getteral'term of! the same court, as prescribed in section 348. > 
 , No findhig of facts by the general term shall be required^or the 
 purpose of review in the court of appeals, and if the judgment be 
 
§ 269.] code: of proceduee. ISl 
 
 reversed at the general term, it shall not be deemed to have be^ 
 reversed on questions of fact, xmless so st?ited: in the judgment isl 
 reversal ^ and in that case tiie question whether the judgment 
 should have been reversed,: either upon questions of fact or of law, 
 shall be open to review in the court of appeals. 
 
 And for the purposes of an appeal from a judgment rendered on 
 the report of a referee, or the decision of a judge on a trial wiSwui a 
 jury, it shaU iu>t be necessary to insert, ai large, in the case, the find- 
 ings of facts or conclusions of law of suc^ jud^e or referee, or the 
 exceptions thereto fled; but if the same a/j^ear as part qf the judg- 
 ment roB, they may be referred. to and used on the argument of tl^s 
 appeal with the same effect as though inserted in the case. 
 
 The provisions of this section, and also of section 273, as they 
 are hereby amended, shall apply to appeals now pending, as well 
 as to those hereafter brought. 
 
 § 269. (Being § 224 of 1848.) On a judgment for the plaintiff upon 
 an issue of law, the plaintiff may proceed in the same manner as 
 upon the failure of the defendant to anwser, as prescribed by sec- 
 tion 2Q?. If judgment be for the defendant,, upon an issue of la^, 
 and the taking of an account, or the_ proof of any fact, be neces- 
 sary to enable the court to complete the judgment, a reference may 
 •be ordered, as in that section provided. 
 
 (Am'd in 1849 and 1851.) 
 
 § 269. '(As am'd in 1849.) On-a judgment for the plaintiff xxpcm. 
 tea. issue of law, the plaintiff may proceed in the same manner pre- 
 scribed by section 246, m eases where the summons or summons g,nd 
 complairvt are personaUy served and.the complaint sworn to upon the 
 failure of the defendant to answer. If judgment be for -Qie defend- 
 ant, upon an issue of law, and the taking of an account, or the proof 
 of any fact, be-necessaiy to enable the court to complete the judg- 
 ment, a reference m:^ be ordered-or writ of inquiry. issued,. as ui 
 that section provided. ^ 
 
 § 269. [As am'd in 1851.) On a judgment for the plaintiff upon 
 
 an. issue of law, the plaintiff may proceed- in-the manner prescribe 
 
 hyth^ first two subdivisions o^ section 246, upon the failure of the 
 
 defendant to answer, wh^re the summons was peraoTuMy yeaved. If 
 
 16 
 
382 CODE OF PEOCBDTJEB. [§"§ 2^0,2^1. 
 
 judgmeat be for the defendant, upon an issue of law, and if taking 
 of an a.C(30unt,.or the proof of any fact, be necessary to enable 
 the court to complete the judgment, a reference or aasemnent hy jfwry 
 may be ordered, as in that section provided. 
 
 CHAPTER V. 
 
 Trial hy Befereee. 
 
 Seotion 270. All isenee referable by conBent. 
 
 371. When reference may be compulsorily ordered. 
 
 572. Report to stand as deciBion of the conrt. 
 
 573. BefereeB, how chosen. 
 
 I 270, (Being § 225 of 1848.) All or any of the issues in the ac- 
 tion, whether of fact or of law, or boili, may be referred, upon the 
 written consent of the parties. 
 
 ' § 271. (Being § 226 of 1848.) Where the parties do not consent, 
 the conrt may, upon the application of either, or of its own motion, 
 direct a reference in the following cases : 
 
 1. Where the trial of an issue of fact shall require the examina- 
 tion of a long account on either side ; in which case, the referees 
 may be directed to hear and decide the whole issue, or to report 
 upon any specific question of fact involved therein ; or, 
 
 2. Where the taking of an accovmt shall be necessary for the in- 
 • formation of the court, before judgment, or for carrying a judgmient 
 
 or order into effect ; or, 
 
 3. Where a question of fact, other than upon the pleadings, shall 
 arise, upon motion or otherwise, in any stage of the action. 
 
 (Am'd in 1849.) 
 
 § 271, (As am'd in 1849.) Where the parties do not consent, the 
 court may, upon the application of either, or of its own motion, esc- 
 cept where the investigation vnU rehire the decision of difficult ques- 
 tions of law, direct a reference in the following cases : 
 
 1. Where the trial of an issue of fact shall require the examina- 
 tion of a long account on either side ; in which case, the referees 
 may be directed to hear and decide the whole issue; or to report 
 lapou any specific question of fact involved therein ; or. 
 
.§ 2?2.] CODE OF PROCBDUEB. 183 
 
 2. Where the taking of an account shall be necessary for the m- 
 .formation of the court, before judgment, or for carrying a judgment 
 .or order into effect ; or, 
 
 3. Where a question of fact, other than upon the pleadings, shall 
 arise, upon motion or otherwise, in any stage of the action. 
 
 § 373. (Being | 337 of 1848.) The report of the referees upon the 
 wimple issue, shall stand as the decision of the court, in the same 
 manner as if the action bad been tried by the court, and their de- 
 cision upon tbe matter referred, may be excepted to and reviewed 
 in like manner. 
 
 (Am'd in 1851, 1852, 1857, 1859 and 1860.) 
 
 § 373. (As am'd in 1851.) The trial bff referees is eonduefed in the 
 same manner as a trial by court. They home the same power to 
 grant ai^ournmenU as the court wpon such trial. They must state the 
 facts fouTid and the conclMsions of law separately, and their decision 
 must be given, and may be excepted to and reviewed in like manner. 
 The report of the referees upon the whole issue stands as the decision 
 of the court, and judgment may be entered thereon in the same man- 
 ner as if the action had been tried by the court. When the refer- 
 ence is to report the facts, the report has the effect of a fecial ■serdict. 
 
 % 373. (As am'd in 1852.) The trial by referees is conducted in the 
 same manner and on a similar notice as a trial by the court. They 
 have the same power to grant adjournments as the court, upon such 
 trial. They must state the facts found and the conclusions of law 
 sepai-ately; and their decision must be given and maybe excepted 
 to and reviewed in like manner, but not otherwise, and they may in 
 like manner settle a case or exceptions. The report of the referees 
 upon the whole issue stands, etc. (as in 1851). 
 
 § 272. (As am'd in 1857.) The trial by referees shall be conducted 
 m the same manner and on similar notice as a trial by the court. 
 They shall have the same power to grant adjournments and to aUow 
 -amendments to amy pleadings as the court upon sucli trial, upon the 
 -same terms and with the like effect. They shall have the same power to 
 preserve order and punish aXL violations tliereof upon such trial, atid 
 to compel the attendance of witnesses before them by attachment. Mid 
 ■to punish them as for a contempt for non.attendance or refusal t» 
 
18* '• COiDB OP PEOCEDrrBE. [§ 2T!^. 
 
 6e; nMra or testify, as is possessed hy the .court They must state the 
 facts f oidul and the; conclusions of law separately, and their decision 
 must be given and may be excepted to and reviewed in like manner, 
 but i^ot otherwise, and Uiey may in 1 like manner fettle a case or 
 exceptions.; The report, of the referees upon the whole issue MU 
 stand as the decision of the court, and judgment may be entered 
 thereon in the same manner as if the, action >had been tried by the 
 court. When the reference is to report facts,.1he report shaU jme 
 the effect ;of a, special verdict. 
 
 § 372. (As am'd in 1859.) The trial by referees shall be conducted in 
 the same manner and on similar notice as a trial by tjie court. They 
 shall have the same power to grant adjournments and to allow 
 amen&nents to.any pleadings (md to the summons, as the court upon 
 such trial, upon the same terms, etc. (as in 1857). 
 
 § 278. (As am'd in i860.) .The trial by referees shall be conducted 
 in the same manner and on similar notice as a trial by the court. 
 They shall have the, same power to grant adjournments and to 
 allow amendm^ita to any pleadings, and to the summons, as the 
 court upon such trial, upon the same terms and with the like effect. 
 (They shall have the same power to preserve order and punish all 
 violations thereof, upon such trial, and to compel the attendance of 
 witnesses before them by attachment,- and to punish them as for a 
 .contempt for non-attendance, or refusal to be sworn, or testify, as 
 is possessed by the court.) They must state the facts found and tlie 
 conclusions of law separately, and their decision must be ^ven, 
 :and may be excited to and reviewedj in like manner, <in(2 m'tA 
 like effect in cUl respects as in eases of appeal under section 363 ; 
 and they,may in like manner settle a cs^se or exceptions. The report 
 of the referees upon the whole issue shall stand aslhe decision of 
 the court, and judgment may be entered thereon in the same man- 
 rner as if the action had been tried by the court. When the refer- 
 ence, is to Import the f actSjihe repprtshall have the effect of a spedial 
 verdicj;. ' -": 
 
 ■ ; WJwn the ease on a/ppeal shall haee.been heard amd decided at the 
 genial term, upon the report eff the referee amd exceptions, uAthmit <f, 
 case containing the evidence, th£ decMon may be remewedin Wee manner 
 en a/ppeal to the cmurtof a/ppeals. If the judgment be reeersed at the 
 general t^rm, and a new trial ordered, it shaU notbedeemed to ha/ee been 
 
§ 273.] . CODB OF PBOCEDUBE. 185 
 
 reeersed on guentums of fact, uriless so itated in ffiejudgmmt of recergal; 
 and in that case the question wTteCher the judgment iho^M have been 
 reversed, either iiponquestions of factor of bitB,shall beopento reviewin 
 the court of appeals. 
 
 § 273. (Being §§ 238 aad 229 of 1848.) In all cases of reference the 
 parties may agree upon a suitable person, or persons, not exceeding 
 three ; and on filing such agreement, the reference shall be ordered 
 accordingly. If the parties do not agree, the court shall (except 
 in the city and county of New York), appoint one or more referees, 
 not exceeding three, who shall be free &om exception and reside in 
 the coimty where the action is triable. 
 
 In the city and county of Kew York, when tiie parties do not other- 
 wise agree, there shall be three referees, who shall he free from 
 exception, and reside in that city. They shall be appointed as 
 follows: Each party shall name one, and these two shall name 
 the third. If they fail to do so within two days after their own 
 appointment, the name of the third referee shall be drawn by the 
 clerk from the jury box, in the manner to be directed by the court 
 on ordering the reference. If either party omit to name a referee, 
 his place shall be supplied from the jury box in the same manner. 
 
 (Am'd in 1849, 1851, 1862, 1863, 1865, 1866.) 
 
 § 273. (As am'd in 1849.) In all cases of reference the parties may 
 agree upon a suitable person, or persons, not exceeding three ; and the 
 reference shaH 6« ordered accordingly. If the parties do not agree, 
 the court shall (except in the city and county of New York), 
 appoint one or more referees, not exceeding three, who shall be 
 free from exception, and reside in the county where the action is 
 triabla 
 
 In the city and county of New York, when the parties do not 
 otherwise agree, there shall be three referees, who shall be free from 
 exception, and reside in that city. They shall be s^ppointed as fol- 
 lows: Each party shall name one, and th^e two shall name the 
 third. If th^ fail to do so within two days after their own appoint- 
 ment, the name of the third referee shall be drawn by the clerk from 
 the jury box in the manner to be directed by the court on ordering 
 the reference. If either party omit to name a referee, his place shall 
 be supplied from the jury box in the same manner. 
 
 § 273. (As am'd in 1851.) In aU cases of refCTence, the parties, 
 exe^t when an infant may be a party, may agree upon a suitable 
 16* 
 
186 CODB OF PEOCBDUKE. • [§ 273. 
 
 peraon, or persons, not exceeding three; and the reference shall be 
 ordered accordingly ; and if the parties do not agree, the court ghaU 
 (appoint one or more referees, not exceeding three, who shall h&free 
 from exception. 
 
 § 273. (As am'd in 1862.) In all cases of reference the parties, 
 except when an infant may he a party, may agree, in writing, upon 
 a person, or persons, not exceeding three, and a reference shall be' 
 ordered to him, or them, and no other person, or persona. And if 
 the parties do not agree, the court shall appoint one or more 
 referees, not more than three, who shall be free from exception. 
 And no person shall ie appointed referee to whom all parties in the 
 action shall olgect, except in actions for divorce. And no justice or 
 judge of any court shall sit as referee, in any action pending in the 
 court of which he is a judge, and not oM'eady referred. Unless the 
 court shaM otherwise order, the referee or referees shaU make and 
 deliver his report within siaAy days from, the time the action shall ie 
 finally submitted, and on default thereof, said referee or referees shall 
 not ie entitled to receive any fees, and the action shaU proceed as 
 though no reference had been ordered. 
 
 § 273. (As am'd in 1863.) In all cases of reference, the parties, 
 as to whom issues are foryned in the action (except when tJie defendant 
 is an infant or an absentee), may agree, in writing, upon a, person or 
 persons, not exceeding three, and a reference shall be ordered to him 
 or them, and no other persons. And if such parties do not agree, 
 the court shall appoint one or more refenees, not more than three, who 
 shall be free from exception. And no person shall be appointed 
 referee to whom all parties in the action shall object, except in ac- 
 tions for divorce. And no justice or judge of any court shall sit as 
 referee in any action pending in the court of which he is judge, and 
 not already-referred. Unless the court shall otherwise order, or the 
 parties otherwise stipulate, the referee, or referees, shall make and de- 
 liver a report within sixty days from the time the action shall be 
 finally submitted ; and in default thereof, said referee or referees shall 
 not be entitled to receive any fees, and the action shall proceed as if 
 no reference had been ordered. 
 
 § 273. (As am'd in 1865.) In all cases of reference the parties, as 
 to whom issues are formed in the action, may agree, in writing, upon 
 a person, or persons, not exceeding three, and a reference shall be 
 ordered to him, or them, and to no other persons. And if such par- 
 
§ 273.] CODB OF PBOCBDTJBB. 18V 
 
 ties do not agree, the court shall appoint one or more referees, not 
 more than three, who shall be free from exceptions. Whenever a 
 reference is ordered in any action, or proceeding, the party, or parties, 
 may choose their own referee, or referees, and a reference shall be 
 ordered to him, or them, and to no other person, and no person 
 shall be appointed referee to whom all parties in the action shaU 
 object, except in actions for divorce, a/nd no person, or persons, shall 
 lie appointed referee, or referees, to whom any pa/rty in the action 
 shall object, untU ten persons sh/ill have been seoeraUy suggested by 
 the court and objected to. And no justice or judge of any court shall 
 sit as referee in any action, pending in the court of which he is 
 judge, and not already referred. 
 
 Unless the court shall otherwise order, or the parties otherwise 
 stipulate, the referee, or referees, shall make and deliver a report 
 within sixty days from the time the action shall be finally submitted. 
 At any time after the expiration of said sixty days, and before the report is 
 deHvered, either party may seme notice upon the opposite party that he 
 ekcts to end the reference ; and thereupon the action shaUproceed as tTumgh 
 ru> reference had been ordered, and the referees shall not in such case be 
 entitled to any fees. 
 
 § 273, (As am'd in 1866.) In all cases of reference the parties, as 
 to whom issues are formed in the action {except when the defendant 
 is an infant or an absented, may agree, in writing, upon a person, or 
 persons, not exceeding three, and a reference shall be ordered to 
 him or them, and to no other person or persons. And if such 
 parties do not agree, the court shall appoint one or more referees, 
 not more than three, who shall be free from exception. And no 
 person shall be appointed referee to whom all parties ra the action 
 shall object, except in actions for divorce. And no judge or 
 justice of any court shall sit as referee in any action pending 
 in the court of which he is judge or justice, and not already 
 referred, unless the parties otherwise stipulate. The referee, or 
 referees, shall make and deliver a report within sixty days 
 from the time the action shall be finally submitted; and in 
 default thereof, and before the report is delivered, either party 
 may serve notice upon the opposite party that he elects to end the 
 reference ; and thereupon the action shall proceed as though no 
 reference had been ordered, and the referees shall not in such case 
 be entitled to any fees. 
 
188 CODE OP PEOCEDUBB. [§274. 
 
 CHAPTER VI 
 
 ' Manner of Maei-in^ judgment. 
 
 Sbotiow 274. Judgment may be for or against any of the parties. 
 ! ' ST6. The tellet to be awarded to the plaintiff. 
 
 376. Bate of damages^ where damages are recoverable. 
 
 277. Judgment in action for recovery of personal property. 
 
 278. Judgment upon issue of law or of fact to he upon direction of a 
 
 single judge, or on report of referees, subject to review at gen- 
 eral term. 
 
 279. Clerk to keep a judgnient book. 
 
 260. Judgment tohe entered in jnj^ment book. 
 281. Judgment roll. 
 ■ 282. Judgment, in What cases and how to he docketed. 
 
 § 374. (Being § 230 of 1848.) Judgment may be given for or against 
 one or more of several plaintiffs, and tbr or against one or more of 
 several defendants, and it may determine the ultimate rights of llie 
 parties on each side, as between themselves. 
 
 (Am'd in 1849, 1852 and 1863.) 
 
 § 374 (As am'd in 1849.) Same as § 274, as passed in 1848, except 
 that the -following words were added at the end thereof : 
 
 In an tuition against mieral defendants, the court may, in its diacre- 
 U(m, render judgm^ent against one or more of them, Uwmng ths action 
 to proceed against the others, whertever a several jiidgmsnt may be 
 proper. The eowrt may aiso dismiss the complaint, with costs, in fa/nor 
 qf one or mare dtfendamts, in case cf u7vrea«onoible Tieglect on the part 
 of the plaiit^ff to serve the summons on other defendants, or to proceed 
 in the eaxue. against the defendant or defendants served. 
 ,i% 374. (As am'd inl853.) Judgment may be given for or against 
 one or more of several plaintiffs, and for or against one or more of 
 several defendants, and it may determine the ultimate rights of the 
 parties on each side, as between themselves, and it may grant to 
 the defendant any affirmative relief to which he may be entitled. 
 In an action against^ etc. (as in 1849.) 
 
 ■ § 2V4. (As am'd in 1863.) Judgment may be given for or against 
 one or more of several plaintiffs, and for or against one or more of 
 gevei'al' defendants, and it Ulay determine the ultimate fights of the 
 parties on each side, as between themselves. 
 
 And it inay grant tothe defendant any affirmative relief to which 
 he may be entitled. 
 
 In an action against severaL defendants, the court may, in its dis- 
 cretion, render judgment against one or more of them, leaving th9 
 
§§ 215-218.^ OODB OF PEOCEDUEE. 189 
 
 action to proceed against the others, whenever a several ju^ment 
 may be proper. 
 
 The court may also dismiss the complaint with costs, in favor of 
 one or more defendants, in case of imreasonable neglect on the 
 part of the plaintiff to serve the summons on other defendants, or 
 to proceed in the cause against the defendant or defendants served. 
 
 In an action brougTU by or against a married woman, judgment may 
 be ginen againat lier ax weO, for costs as for damages, or loSi for swJi 
 costs and for such damages, in the same manner as against other per- 
 sons, to be levied and collected ef her separate estate and not otherwise. 
 And in any proceeding to enforce such judgment, the supreme court shaU 
 have jurisdiction, ffumgh the amount be less than one hv/tudred ddUars. 
 
 I 275. (Being § 231 of 1848.) The relief granted to the plaintiff, 
 if there be no answer, cannot exceed that which he shall have 
 demanded in his complaint ; but in any other case, the court may 
 grant him any relief consistent with the case made by the complaint 
 and embraced within the issue. 
 
 § 276. (Being § 333 of 1848.) Whenever damages are recoverable, 
 the plaintiff may claim and recover, if he show himself entitled 
 thereto, any rate of damages, which he might have heretofore recov- 
 ered for the same cause of action. 
 
 § 277. (Added in 1849.) In an action to recover the possession of 
 personal property, judgment for the plaintiff may be for the pos- 
 session, or for the recovery of possession, or the value thereof, in 
 case a delivery cannot be had, and of damages for tbe detention. 
 If the property have been delivered to the plaintiff, and the defend- 
 ant claim a return thereof, judgment for the defendant may be for 
 a return of the property, or the value thereof, in case a return cannot 
 be had, and damages for taking and withholding the same. 
 
 § 378. (Being | 233 of 1848.) Judgment upon an issue of law, or 
 of fact, or upon confession, or upon failure to answer (except where 
 the clerk is authorized to enter the same by the first subdivision of 
 section 303 and by section 337), shall, in the first instance, be entered 
 upon the direction of a single judge, subject to review at the general 
 term, on the demand of either party, as herein provided. 
 
 (Am'd in 1849, 1851 and 1852.) 
 
 § 278. (As am'd in 1849.) Judgment upon an issue of law, or of 
 tact, or upon confession, or upon failure to answer (except where 
 the clerk is authorized to enter the same by the first subdivision 
 
190 CODE or PEOCBDTTEE. [§§ 2'?8-281. 
 
 of section 346, and by section 884), shall, in the first instance, be 
 entered upon the direction of a single judge, <»• report of referees, 
 subject to review at the general term, on -the demand of either 
 party, as herein provided. 
 
 § 278. (As am'd in 1851.) Judgment upon an issue of law, not 
 tried at a general term, or an issue of fact, or upon confession, or 
 upon failure to answer (exciept where the clerk is authorized to enter 
 the same by the first subdivision of section 246, and by section 384), 
 shall, in the first instance, be entered upon the direction of a single 
 judge, or report of referees, subject to review at the general term, 
 on demand of either party, as herein provided. 
 
 I 278, (As am'd in 1853.) Judgment upon an issue of law, or of 
 fact, or upon confession, or upon failure to answer (except where 
 the clerk is authorized to enter the same by the first subdivision of 
 section 346, and by section 384, a/nd except where it may be giuen at 
 the general term, as provided in section 265), shall, in the first instance, 
 be entered upon the direction of a single judge, or report of referees, 
 subject to review at the general term, on the demand of either party, 
 as herein provided. 
 
 § 279. (Being § 334 of 1848.) The clerk shall keep, among the 
 records of the court, a book for the entry of judgments, to be called 
 the "judgment book.'' 
 
 § 280. (Being § 335 of 1848.) The judgment shall be entered in 
 the judgment book, and shall specify clearly the relief granted, or 
 other determination of the action. 
 
 §381. (Being § 336 of 1848.) The clerk, immediately after enter- 
 ing the judgment, shall attach together and file the following 
 papers, which shall constitute the judgment roll : 
 
 1. In case the complaint be not answered the summons and com- 
 plaint, proof of service, and that no answer has been received, the 
 report, if any, and a copy of the judgment. 
 
 3. In all other cases, the summons, pleadings and a copy of the 
 judgment, with any verdict or report, the offer of the defendant, 
 case, exceptions, and all orders relating to a change of parties, or in 
 any way involving the merits and necessarily affecting the judgment. 
 
 (Am'd in 1849, 1851 and 1853.) 
 
 § 281. (As am'd in 1849.) Unless the party or his attorney shaE 
 furnish a judgment roll, the clerk, immediately after entering the 
 
§§ 281, 282.] CODB OT PEOCEDtTEE. 191 
 
 judgment, shall attach together and file the following papers, which 
 shall constitute the judgment roll : 
 
 1. In case the complaint be not answered hy'any defendant, the 
 summons and complaint, or copies thereof, proof of service, and 
 that no answer has heen received, the report, if any, and a copy of 
 the judgment 
 
 2. In all other cases the summons, pleadings, or copies thereof, 
 and a copy of the judgment, with any verdict or report, the offer 
 of the defendant, case, exceptions, and all orders relating to a 
 change of parties, or in any way involving the merits, and neces- 
 sarily affecting the judgment. 
 
 When the defendant shall be entitled to judgment, if the plaintiff 
 shall not have filed the summons, with proof of service, and the 
 pleadings on his part, the copies of summons and pleadings served 
 on the defendant may be substituted therefoi' in making the judg- 
 ment roU, or the plaintiff may, at the instance of the defendant, be 
 ordered by a judge forthwith to file such papers. 
 
 § 281. (As am'd in 1851.) Same as § 281, as amended in 1849, to 
 sub. 3, and from thence as follows : 
 
 2. In all other cases the summons, pleadings or copies tiliereof, 
 and a copy of the judgment, with any verdict or report, the offer 
 of the defendant, WK of exceptions, case, and all orders relating to 
 a change of parties, and aU orders and papers in any way involving 
 the merits, and necessarily affecting the judgment. 
 
 § 281. (As am'd in 1852.) Unless the party or his attorney shall 
 fiimish a judgment roll, the clerk, immediately after entering the 
 judgment, shall attach together and file the following papers, which 
 shall constitute the judgment roU : 
 
 1. In case the complaint be not answered by any defendant, the 
 smnmons and complaint, or copies thereof, proof of service, and 
 thai no answer has been received, the report, it any, and a copy of 
 the jud^ent 
 
 2. In all other cases the summons, pleadings, or copies thereof, 
 and a copy of the judgment, with any verdict or report, the offer 
 of the defendant, exertions, case, and all orders and papers in any 
 way involving the merits, and necessarily affecting the judgment. 
 
 § 282. (Being | 237 of 1848.) On filing a judgment roll upon a 
 judgment directing, in whole or in part, the payment of money, it 
 may be docketed with the clerk of the county where it was ren- 
 dered, and in any other county, upon filing with the clerk thereof 
 
192 CODE OF PKOCBDUEE. [§ 282. 
 
 a transcript of th&tirigitial docket ;■ and shall be a lieti o!n real prop* 
 erty in the county from the time of docketing the judgment therein. 
 
 (Am'd in 1851, 1867 and 1869.) . . 
 
 § 283. (As am'd in 1851.) On filing a judgment roll upon a judg- 
 ment directing, in whole or in part, the payment of money, it may 
 be docketed with the clerk of the coimty where it was rendered, and 
 in any other county upon the filing with the clerk thereof a tran- 
 script of the original "docket," and shall be a lien on the real prop- 
 erty in tTie county where the same is docketed, of every person against 
 whom any snichjv^ment shaU be rendered, and which he may ham at the 
 time pf docketing thereof in the county in which mch real estate is 
 Htuated, or which he shaU acquire at amy time thereafter for ten, yea/rs 
 from the time of docketing the sa/me in the c/ounty where it was ren- 
 dered. But whenever an appeal from any judgment shaXl be pending, 
 and the undertaking requisite to stay execution on sueh judgment shaU 
 ha/oe been given, and the appeal perfected as provided in the code, the 
 court in which mich judgment was recovered may, on special motion, 
 after notice to the person owning the judgment, in such terms as they shaU 
 see fit, direct an entry to be made by the clerk on the docket of such judg- 
 ment that the same is " secured on appeal," and thereupon it shall cease 
 during the pending of the appeal to be a lien on the real property of the 
 judgment debtor as against purdtasers and martgaigees in good faith. 
 
 § 383. (As am'd in 1867.) Upon filing a judgment roll upon a 
 judgment directing, in whole or in part, the payment of money, it 
 may be docketed with the clerk of the county where the judgment 
 rcil was filed, and in any other county upon the filing with the 
 clerk thereof a transcript of the original " docket," and shall be a 
 Hen on the real property in the county where the same is docketed, 
 of every person against whom any such judgment shall be ren- 
 dered, and which he may have at the time of the docketing thereof 
 in the county in which such real property is situated, or which he 
 ^all acquire at any time thereafter, for ten years from the time of 
 docketing the same in the county where the judgment roU was fUedi 
 But the time duA^ng which' the pa/rty recovering or owning swshjudg- 
 ment shall be or shaU haee been restrained from proceeding, ihereon-by 
 amy order of injunction,, or other order, or by the operation of any 
 appeal, shall not. covsUtute any part of the ten years aforesaid, a* 
 against the defendant in such judgment, or the party obtaining such 
 orders or making such appeal,.or any other person who is not a pur- 
 
§ 282.] CODE OF PKOCEDUEE. 193 
 
 ekaser, creditor or mortgagee in good faith. But whenever an appeal 
 from any judgment sbail be pending, and the undertaking requisite 
 to stay execution on such judgment shall have been given, and the 
 appeal perfected as provided in the code, the court in which such 
 judgment was recovered may, on special motion, after notice to the 
 person owning the judgment, on such terms as they shall see fit, 
 direct an entry to be made by the clerk on the docket of such judg- 
 ment that the same is " secured on appeal," and thereupon it shall 
 cease during the pendency of said appeal to be a lien on the real 
 property of the judgment debtor, as against purchasers and mort- 
 gagees in good faith. 
 
 § 282. (As am'd in 1869.) Upon filing a judgment roll upon a 
 judgment directing, in whole or in part, the payment of money, it 
 may be docketed with the clerk of the county where the judgment 
 roll was filed, and in any other county upon the filing with the 
 derk thereof a transcript of the original " docket," and shall be a 
 lien on the real property in the county where the same is docketed, 
 of every person against whom any such judgment shall be ren- 
 dered, and which he may have at the time of the docketing thereof 
 ia the county in which such real property is situated, or which he 
 shall acquire at any time thereafter, for ten years fi-om the time of 
 docketing the same in the county where the judgment roll was 
 filed. But the time during which the party recovering or owning 
 such judgment shall be or shall have been restrained from proceed- 
 ing thereon by any order of injunction, or other order, or by the 
 operation of any appeal, shall not constitute any part of the ten 
 years aforesaid, as against the defendant in such judgment, or the 
 party obtaining such orders or making such appeal, or any other 
 person who is not a purchaser, creditor or mortgagee in good faith. 
 But whenever an appeal from any judgment shall be pending, and 
 the undertaking requisite to stay execution on such judgment shall 
 have been given, the court in which such judgment was recovered 
 may, on special motion, after notice to the person owning such 
 judgment, or to his attorney, and to the sureties to such undertaking, 
 on such terms at such court shall see fit, hy order exempt from, the 
 Hen of such judgment tTie whole of the reed property upon which 
 said judgment is a lien, or a specific portion thereof, to be described 
 in sikA order, and direct an entry to be made by the clerk on the 
 docket of such judgment that the same is " secured on appeal," 
 17 
 
194 CODE OF PEOCEDUEE. [§ 283. 
 
 except tJuit, in case onli/ a speeifie portion of smh property is ear 
 empled from such lien, sueh order shall direct an entry to be made 
 on such docket, that the same is " seev/red on appeal as per order of 
 ths court, dated ," specifying the date of sicch order; and there- 
 upon such judgment shall cease during the pendency of such appeal 
 to be a lien upon t^ property so exempted as against purchasers 
 and mortgagees in good faith. 
 
 TITLE IX. 
 
 Of the Execution of the Jwdgm^nt in Cisil Adiont. 
 
 Chaptsb I. The execution. 
 
 n. Proceeding supplementary to the execution. 
 
 CHAPTER I. 
 
 The Bxecution. 
 
 Section S83. Execution within five years, of course, as prescriheci hy this title. 
 884. After five years, to he issued only hy leave of court ; leave, how 
 
 ohtained ; execution on judgment of justices^ or other inferior 
 
 courts : when docketed, how issued. 
 S85. Other jadgments, how enforced. 
 286. The different kinds of execution. 
 
 587. To what counties execution'may he issued. 
 
 588. Execution against the person ; in what cases and when. 
 
 289. Form of the execution. 
 
 290. To he returnable in sixty days. 
 
 291. Existing laws relating to execution continued, until otherwise pro- 
 
 videdT 
 
 § 283. (Being § 238 of 1848.) Writs of execution for the enforce- 
 ment of judgments as now used are modified in conformity to this 
 title, and the party in whose favor judgment is given may, at any 
 time within five years after the entry of judgment, proceed to en- 
 force the same, as prescribed by this title. 
 
 (Am'd m 1849 and 1866.) 
 
 § 283. (As am'd in 1849.) Writs of execution for the enforcement 
 of judgments as now used are modified in conformity to this title, 
 and the party In whose favor judgment has been heretofore, or shaU 
 hereafter be given may, at any time within five years after the entry 
 of judgment, proceed to enforce the same, as prescribed by this 
 title. 
 
 ' § 283. (As am'd in 1866.) Writs of execution for the enforcement 
 of judgments as now used are modified in conformity to this title, 
 and the party in whose favor judgment has been heretofore, or 
 
§ 284.] CODE OF PEOCEDUEE. 195 
 
 shall hereafter be given, and in ease of his death, his personal repre- 
 sentatimes, duly appointed, may, at any time within five years after 
 the entry of judgment, proceed to enforce the same, aa prescribed 
 by this title. 
 
 § 284. (Being § 339 of 1848.) After the lapse of five years from 
 the entry of judgment, an execution may be issued only by leave of 
 the court, on motion, with notice to the adverse party. Such leave 
 shall not be given unless it be established by the oath of the party, 
 or other proof, that the judgment, or some part thereof, remains 
 unsatisfied and due. 
 
 (Am'd in 1849, 1851 and 1858.) 
 
 I 284 (As am'd in 1849.) Same as § 284, as passed in 1848, except 
 that the following words were added at the end thereof : 
 
 " When the judgment shaU haw been rendered in a court of justice of 
 the peace, or in a justices or other inferior court in a city, amd docketed 
 in the office of the derkofthe county, the aipplicaMon for team to issue 
 ■ execution must he to the county court of the county where the judgment 
 was rendered, or, in the city and county of New York, to the court of 
 common pleas of that city wnd county" 
 
 § 384 (As am'd in 1851.) After the lapse of five years from the entry 
 of judgment, an execution can be issued only by leave of the court, 
 upon motion, with personal notice to the adverse party, unless he he 
 absent or non-resident, or cannot be found to make such service, in 
 which case such service may be made by publication, or in such other 
 manner as the court shall direct. Such leave shall not be given, 
 unless it be established by the oath of the party, or other satisfactory 
 proof, that the judgment, or some part thereof, remains unsatisfied 
 and due. 
 
 When judgment shall have been rendered in a court of justice of 
 the peace, or in a justice's or other inferior court in a city, and 
 docketed in the office of the clerk of the county, the application for 
 leave to issue execution must be to the county court of the county 
 where the judgment was rendered, or, in the city and county of New 
 York, to the courtof common pleas of that city and county. 
 
 § 284. (As am'd in 1858.) After the lapse of five years fi^m the 
 entry of judgment an execution can be issued only by leave of 
 the court, upon motion, with personal notice to the adverse parly. 
 
196 CODE OF PEOCEDUEB. [§§ 285, 28d. 
 
 unless he be absent or non-resident, or cannot be found to make 
 such service; in which case such service maybemade bypnblica- 
 tioh,' or in such other maimer as the court shall direct. Such leave 
 shall not be given unless it be established by the oath of the party, 
 or other satisfactory proof, that the judgment or some part thereof 
 remains unsatisfied and due. But the Umoe shaU not he necessary 
 when execution has been iisued cm the judgment within the fine yed/rt, 
 omd returned Unsatisfied in whole or in part. 
 
 When judgment shall have been rendered in a court of justice of 
 the peace, or in a justice's or other inferior court in a city, and dock- 
 eted in the office of the clerk of the county, the application for leave 
 to issue execution must be to the county court of the county where 
 the judgment was rendered, or, in the city and county of New York, 
 to the court of common pleas of that city and county. 
 
 § 285. (Being § 240 of 1848.) Where a judgment requires the pay^ 
 ment of money, or the delivery of real or personal property, the same 
 may be enforced in, those respects by execution, as provided in this 
 title. Where it requu-es the performance of any other act, a certified 
 copy of the judgment may be served upon the party against whou} 
 it is given, and his obedience thereto reqtiired. If he refuse he may 
 be punished by the court as for a contempt. 
 
 (Am'd in 1849.) 
 
 § 285. (As am'd in 1849.) Where a judgment requires the pay- 
 ment of money, or the delivery of real and personal property, the 
 same may be enforced in those respects by execution, as provided 
 in this title. Where it requires the performance of any other act, a 
 certified copy of the judgment may be served upon the party 
 against whom it is given, or the person or officer who is reguirecf 
 thereby, or by Icm, to obeythe same, and his obedience thereto mforeed. 
 If he refuse, he may be punished by the court as for a contempt. 
 
 § 386. (Being § 241 of 1848.) Th,ere shall be three kinds of execur 
 tiofl-: one against the property of the judgment debtor; another 
 against his person ; and the third for the delivery of the possession 
 of real or personal property. They shall be deemed the process 
 of the court, but they need not be 'sealed nor subscribed^ except 
 as prescribed in section 244. 
 
 (Am'd in 1849.) ■ 
 
§§ 286, 287.] CODE OF PEOCBDITEE. 197 
 
 § 286. (As am'd in 184S.) There shaU be three kinds of execu- 
 tion; one against the property of the judgment debtor; another 
 against his person ; and the third for the deliversr of the possession 
 of real or personal properly, or such dditery with damages for yiith- 
 TuMing the aame. They shall be deemed the process of the court, 
 but, Uiey need not be sealed nor subscribed, except as prescribed in 
 section 289. 
 
 § 287. (Bemg § 243 of 1848.) Where the execution is against the 
 property of the judgment debtor, it may be issued to the sheriff of 
 any county where the judgment is docketed. Where it requires 
 the delivery of real or personal property, it must be issued to the 
 sheriff of the county where the property, or some part thereof, is 
 situated. Executions may be issued at the same time to difierent 
 coimties. 
 
 (Am'd in 1851, 1852 and 1862.) 
 
 § 287. (As am'd in 1851.) Same as § 287, as passed m 1848, except 
 that the following words were added at the end thereof : 
 
 "Bead property adjudged to he sold must he sold in the county where 
 it lies, hy the slieriff of <Ae county, or hy a referee appointed by the 
 court for that purpose, and thereupon the sheriff or referee must 
 execute a conveyance to tlie purchaser, which conveyance shall he 
 effectual to pass the rights and interests of the parties adjudged by 
 the decree to be sold. 
 
 % 287. (As am'd in 1852.) When the execution is against the prop- 
 erty of the judgment debtor, it may be issued to the sheriff of any 
 county where judffment is docketed. When it requires the delivery 
 of real or personal property it must be issued to the sheriff of the 
 county where the property, or some part thereof, is situated. Execu- 
 tions may be issued at the same time to different counties. Real 
 property adjudged to be sold must be sold in the county where it 
 lies, by the sheriff of the county, or by a referee appointed by the 
 court for that purpose, and thereupon the sheriff or referee must 
 execute a conveyance to the purchaser, which conveyance shall be 
 effectual to pass the rights and interest of the parties adjudged to 
 be sold. 
 
 § 287. (As am'd m 1862.) When the execution is against the prop- 
 erty of the judgment debtor, it may be issued to the sheriff of any 
 17* 
 
198 CODE OF PROCEDURE. [§288. 
 
 county where judgment is docketed. "When it requires the delivery 
 of real or personar property it must be issued to the sheriff of the 
 county where the property, or some part thereof, is situated. Exe- 
 cutions may he issued at the same time to different counties. Real 
 property adjudged to he sold must he sold in the county where it 
 lies, by the sheriff of the county, or by a referee appointed by the 
 court for that purpose, and thereupon the sheriff or referee must 
 execute a conveyance to the purchaser, which conveyance shall be 
 effectual to pass the rights and interest of the parties adjudged to 
 be sold. 
 
 An eaieeuMon may mue.agcdnat a mwrried woman, and it sluM direct 
 the levy and collection of the cmumnt of the judgment a^ain»t her from 
 her geparaU property, cmd not otherwise. 
 
 § 288. (Being § 343 of 1848.) If the action he one in which the 
 defendant might have been arrested, as provided in section 154, an 
 execution against the person of the judgment debtor may be issued 
 to any county within the jurisdiction of the court, after the return 
 of an execution against his property unsatisfied in whole or in part. 
 
 (Am'd in 1849, 1863 and 1870.) . 
 
 § 288. (As am'd in 1849.) If the action be one in which the 
 defendant might have been arrested, as provided in section 179 and 
 section 181, an execution against the person of the judgment debtor 
 may be issued to any county within the jurisdiction of the court, 
 after the return of an execution against his property unsatisfied in 
 whole or in part. 
 
 § 288. (As am'd in 1862.) Same as § 288 as amended in 1849, 
 except that the following words were added at the end thereof : 
 
 But no execution shaU issue against the person of a judgment debtor, 
 unless am, order of arrest has been served, as in this aetpromded, or 
 unless the complaint contains a statement qf facts showing one or more 
 of the causes of arrest required by section 179. 
 
 § 28 8, (As am'd in 1870.) If the action be one in which the defendant 
 might have been arrested, as provided in section 179 and section 181, 
 an execution against the person of the judgment debtor may be issued 
 to any county within the jurisdiction of the court, after the return of 
 an execution against his property unsatisfied in whole or in part But 
 
§ 289.] CODE OF PEOCBDUEE. 199 
 
 no execution shall issue against the person of a judgment debtor, 
 unless an order of arrest has been served, as in this act provided, or 
 unless the complaint contains a statement of facts showing one or 
 more of the causes of arrest required by section 179. 
 
 If any defendant be in actiml custody under an order of arrest, and 
 the ■plaintiff ihaR neglect to enter judgment in the action wUhin one 
 monffi after it is in liis power to do so, or shaH neglect to issue execution 
 against the person of siush defendamt, within three months after the 
 entry of judgment, such defendant may, on his motion, be discharged 
 from custody by the cmurt in which such action slmU home been eom- 
 menced, unless good cause to the amiirairy be shown ; and, after being so 
 discharged, such defendant shaU not be arrested upon any execution 
 issued in such action. 
 
 § 289. (Being § 244 of 1848.) The execution must be directed to 
 the sheriff, subscribed by the party issuing it, or his attorney, and 
 must intelligibly refer to the judgment, stating the court, the county 
 where the judgment roll is filed, the names of the parties, 
 the amount of the judgment, if it be for money, and the amount 
 actually due thereon, and time of docketing in the county to which 
 the execution is issued, and shall require the sheriff substantially as 
 follows : 
 
 1. If it be against the property of the judgment debtor it shall 
 require the sheriff to satisfy the judgment out of the personal prop- 
 erty of such debtor, or, if sufficient cannot be found, then out of the 
 real property belonging to him on the day when the judgment was 
 docketed in the county, or at any time thereafter. 
 
 2. If it be against the person of the judgment debtor it shall 
 require the sheriff to arrest such debtor, and commit him to the jail 
 of the county, until he shall pay the judgment or be discharged 
 according to law. 
 
 3. If it be for the delivery of the possession of real or personal 
 property, it shall require the sheriff to deliver the possession of the 
 same (particularly describing it) to the party entitled thereto. 
 
 (Am'd in 1849.) 
 
 § 289. (As am'd in 1849.) The execution must be directed to the 
 sheriff, or coroner, when the sheriff is a pa/rty or interested, subscribed 
 by the party issuing it, or his attorney, and must intelligibly refer 
 to the judgment, stating the court, the county where the judgment 
 
200 CODIC OJ" PEOCBDUKB. [§§ 290,, 291. 
 
 roll or ^cmseript is filed, the names of thie parties, tjie amount of the 
 judgment, if it be for money, and the amount actually due toereon, 
 and the tune of docketing in the county to which the execution ris 
 issued, and shall require the officer substantially as follows : , 
 
 1. If it be against the property of the judgment debtor it shall 
 require the officer to satisfy the judgment out of the personal prop- 
 erty of such debtor, and if sufficient personal property cannot be 
 fomid, out of the real property belonging to him on the day when 
 the judgment was docketed in the county, or at any time there- . 
 after. 
 
 3. ff it be offmnst real or pe/noTuAjprvperty m the Tiamds of personal 
 represeniaM'oei, hei/rs, devisees, legatees, tenants qf real property, or 
 trustees, it sAaU rehire the officer to satisfy the judgment out of such 
 property. 
 
 3. If it be against the person of the judgment debtor, it shall 
 require the officer to arrest such debtor, and commit him to the jail 
 of the county, until he shall pay the judgment or be discharged 
 according to law. 
 
 4. If it be for the delivery of the possession of real or personal prop- 
 erty, it shall require the officer to deliver the possession of the same 
 particularly describing it, to the party entitled thereto, and may at the 
 same time require the officer to saMsfy any costs, damages, or rents amd 
 profits, recovered hy the sainve judgm,erU out of the personal property of 
 the pairty agaiinst whom, it teas rendered, amd the vdtae of the property 
 for which the judgment was recoBered, toie speeijiedtherein,if a ddioery 
 thereof cannot be had, and if sufficient personal property cannot be 
 found, then out of the real property belonging to hm on tM day the 
 judgment was docketed, or at any time thereafteir, and shaU in that 
 respect be deemed an execution against property. 
 
 % 290. (Being § 245 of 184S.) The sheriff shall, in all cases, return 
 the execution within sixty. days after its receipt to the clerk with 
 whom the record of judgment is filed. 
 
 (Am'd in 1849.) 
 
 § 290. (As am'd in 1849.) The execution shall be returnable 
 within sixty days after its receipt by the officer to the clerk with 
 whom the record of judgment is filed. 
 
 §291. (Being §246 of 1848.) Until otherwise provided by the legisr, 
 lature, the existing provisions of law relating to executions, and thpii ■ 
 
291, 292.] CODB OF FBOCSDUKB. 201 
 
 LCidents, including the sale and redemption of property, the powers 
 id rights of officers, their duties tliereon, and the proceedings to 
 iforce those duties and the liability of their sureties, shall £^pply 
 I the executions prescribed by this chapter. 
 (Am'd in 1849 and 1851.) 
 
 § 291. (As am'd in 1849.) Until otherwise provided by the legisla- 
 ire, the existing provisions of law not in amjUet with thU chapter, 
 slating to executions, and their incidents, including the sale and 
 idemption of property, the powers and rights of officers, their 
 uties thereon, and the proceedings to enforce those duties, and the 
 ability of their sureties, shall apply to the executions prescribed by 
 lis chapter. 
 
 § 291. (As am'd in 1851.) Until otherwise provided by the legis- 
 iture, the existing provisions of law not in conflict with this chap- 
 ir, relating to executions and their incidents, the property liable to 
 ife on exeeuMon, the sale and redemption thereof, the powers and 
 ghts of officers, their duties thereon, and the proceedings to enforce 
 lose duties, and the liability of their sureties, shall apply to the 
 secntions prescribed by this chapter. 
 
 CHAPTER XL 
 
 Proceedings Supplementary to the Execution. 
 
 EcnoH 292. When execution returned nneatisfled, order for diecovecy of prop- 
 erty allowed ; also when judgment debtor refnses to apply 
 property to satisfy judgment ; manner of proceeding to examine 
 judgment debtor. 
 
 293. Any debtor may pay execution against Ms creditor. 
 
 294. Examination of debtors of judgment debtor, or of those having 
 
 property belonging to him. 
 
 295. Witness required to testify. 
 
 296. Compelling party or witnesses to attend ; examinations, when to be 
 
 on oath. 
 297 tTndge may order property to be applied on execution. 
 
 298. Judge may appoint receiver, and prohibit transfer, etc., of property, 
 
 299. Proceedings upon claim of another party t» property^ or on denial 
 
 of indeotemiess to judgment debtor. 
 800. Reference by judge, 
 aoi. Costs of proceeding. 
 802. Disobedience of order, how punished. 
 
 § 392. (Being § 247 of 1848.) When an execution against property 
 f the judgment debtor, issued to the sheriff of the county where 
 e resides, or if he reside out of the State, to the sheriff of the 
 oiuity where the judgment roll is filed, shall be returned unsatis- 
 
202 CODE OB" PEOCEDTJEK. [§ 292. 
 
 fled in whole or in part, the juc^iment creditor may obtain an order 
 from a judge of the court-, or a county judge of the county to which 
 the execution was issued, requiring the judgment debtor to appear 
 and make discovery on oath, concerning his property, before such 
 judge, at a time and place specified in the order. 
 
 (Am'd in 1849, .1851, 1858, 1859, 1863 and 1867.) 
 
 § 293. (As am'd in 1849.) When an execution against property of 
 the judgment debtor, or of any one of seceral debtors in the same 
 judgment, issued to the sheriff of the county where he resides, or if 
 he dp not reside in this State, to the sheriff of the county where the 
 judgment roll or a trmiscript ef a jusUeei jvdgment is filed, shall be 
 returned unsatisfied in whole or in part, the judgment creditor, at 
 any time after such return made, on, proof of mush r^mrni, ahaU, at amy 
 timejbe entitled to an order from a judge of the court, or a county 
 judge of the county to which the execution was issued, requiring 
 tuch judgment debtor to appear and angieer, concerning his property, 
 before such judge,, or a referee appoirvted by a Judge of the court, at a 
 time and place specified in the order. 
 
 - AfSeriheAsswin^ of an eiceeution against property, a/nd vpon proof by 
 affidavit, to the satlif action of theamrt, or a judge thereof, or county judge, 
 ^Shat.atny judgment debtor has property, which he wnjvMy refuses to apply 
 ittKwmrdethe satitfacHon of the judgment, euch court or judge may, by an 
 <yrder„ require the judgment dd>tor to appear at a specified time avdplaee, to 
 ansaer iconceming the same ; and such proceedings may thereupon be had 
 for the appliea^n of the property of thejudgment debtor towards the satis- 
 faction, ef the judgment as are provided upon the return of an execution. 
 
 Instead cfihe order requiring the attendanee of thejudgment debtor, as 
 provided in this section, the judge may, if it appeojr to him that there is 
 danger of the debtor's absconding, issue a warrant, under his hamd, 
 requiring the sheriff of any county where such debtor may be, to arrest 
 him and brvnghim bSfore such judge. Upon being brought before the 
 judge, he maybe examined on oath, and ordered to enter into an under- 
 talmig,.with one or more sureties, that he vM attend, from time to time, 
 before the jitdge or referee as he shaU d^ect, during the pendency of the 
 proceeding, amd untU the fmcd determination thereof, and wiU not, in 
 the mean time, dispose of any portion of his property, not exempt from 
 execution. '. In defandt cf entering into such undertaMng, he may be 
 committed to prison by wwrramt under the hand of the judge. 
 
 § 292. (As am'd in 1851.) When an execution against property of 
 the judgment debtor, or of any one of the several debtors in the same 
 
I 292.] CODE OF PBOCEDUBB. 203 
 
 judgment, issued to the sheriff of the county where he resides, or if 
 le do not reside in the State, to the sheriff of the county where a 
 judgment roll, or a transcript of a justice's judgment /or tuiemty-fiiie 
 hUars or upwards, exdusm of costs, is filed, is returned unsatisfied in 
 vhole or in part, the judgment creditor, at any time after such 
 etnm made, is entitled to ail order from a judge of the court, or 
 I county judge of the county to which the execution was issued, or 
 I jvdge of the court of comrrum pleas for the city and county of New 
 York, when the execatUm wag issued to such dty and county, requiring 
 luch judgment debtor to appear and answer concerning his prop, 
 ;rty before such judge, at a time and place specified in the order, 
 (rithin the county to which the execution was issued. After the 
 ssuing of an execution against property, and upon proof, by affi- 
 favit of a party, or otherwise, to the satisfaction of the court, or a 
 judge thereof or county judge, or any judge of the court of com/mon 
 )leas for the dty and county of New Te/rk, that any judgment debtor, 
 ■esiding in the county where such judge or oflScer resides, has prop- 
 irty which he unjustly refuses .to apply towards the satisfaction 
 )f the judgment, such court or judge may, by an order, require the 
 judgment debtor to appesu- at a specified time and place, to answer 
 »nceming the same : and such proceedings may thereupon be had 
 OT the application of the property of the judgment debtor towards 
 he satisfaction of the judgment as are provided upon the return 
 >f an execution. 
 
 On an examination under this section, either party may examine 
 oUnesses in his behalf, and the judgment debtor may he examined in 
 he same manner as a witness. Instead of the order requiring the 
 ittendance of the judgment debtor, the judge may, upon proof, by 
 'ffidavit or otherwise, to his satisfaction, that there is danger of the 
 lebtor's leaving the state, or concealing himself, and that there is reason 
 a beUeve he has property which he unjusUy refuses to apply to such 
 udgmerit, issue a warrant, requiring the sheriff of any county where 
 uch debtor may be, to arrest him and bring him befor&such judge. 
 Jpon being brought before the judge he may be examined on oath, 
 ',nd, if it then appears that there is danger of the debtor's leaving the 
 tate, and thai he has property which he has unjustly refused to apply, 
 such judgment, ordered to enter into an undertaking with one or 
 Qore sureties, that he will from time to time attend before the judge 
 is he shall direct, and thai he wiU n^t, during the pendency of the 
 iroceedings, dispose of any portion of his property, not exempt 
 
04 CODE OF PBOCBDUEH. [§ 202. 
 
 rom execution. ,. In default of entering into, such undertaking, he 
 lay be. committed to prison, by warrant of the Judge, as for a con- 
 ^mpt. JVo perton ghaU, <m examination-puriuant to thM chapter, .be 
 tcuiedfrom anemering any guegtion on tJie ground that his exami- 
 oMon uM twA to cmmct him of theja>nf/nf,mim of afra/ud; &»f Ut 
 nsiepr shaU not be .^uted m emknce agaiMt, Jjam in. any orimiruA pro- 
 ieding or proseeuMon. 
 
 ,1,393. XAs.ain'd in 1^58.) Same as 1 393, as amended in 1851, ex- 
 ept that the words, "or to a place of business" we^e added after 
 lie words " where he resides." 
 
 § 393. (As am'd in 1859.) Same as § 393 as amended in 1858, except 
 iat after the words " as are provided upon the return of an execu- 
 ion," the following words were added : " Whenever it shall satis- 
 sictorily appear by aflSdavit to a justice of the supreme court that 
 ach county judge, or judge of' said court of common pleas, is inca- 
 acitated from acting in any of the prbceedulgs whatever, herein 
 nthorized, from any cause or causes vrhatSoever, such justice of the 
 Dipreme court shall have the same powers and authority, in all cases 
 rhatever, as are herein conferred upon him as to cases of judgments 
 1 the supreme court." 
 
 g 393. <As am'd in 1863.) Same as § 393, as amended in 1859, ez- 
 ept that the following words were added at the end thereof: 
 
 '■' Nor shall he be excused from answering any question on the 
 pound that he has, before the examination, executed any convey- 
 nce, assignment or transfer of his property for any purpose, but 
 is answer shall not be used as evidence against him in any crim- 
 lal proceeding or prosecution." 
 
 § 292. (As am'd in 1867.) When an execution against proper^ of 
 le judgment debtor, or any one of several debtors in the same 
 idgmentj issued to the sheriff of the county where he resides or has 
 place of business, or if he do not reside in the State, to the sheriff 
 f the county where a judgment roll, or a transcript of a justice's 
 udgment for twenty-five dollars or upward, exclusive of costs, ia 
 led, is returned unsatisfied, in whole or in part, the judgment cred- 
 soTj at any time after such return made, is entitled to an order from 
 judge of the court, or a county judge of the county to which the 
 xecution was issued, or a judge of the court of common pleas for 
 
292.] CODK OF PBOCEDUKE. 205 
 
 lie <3ty and county of Kew York, when the execdllon was issued to 
 Qch city and county, requiring such judgment debtor to appear and 
 nswer concerning his prc^erty before such judge, at a time and 
 lace specified in the order, within the county to which the execu- 
 Lonwas issued. But in ease of an order made by a justice of the 
 tipreme court, aU subsequent proceedings shaU be had before some jus- 
 ice in the judicial district where the judgment debtor resides, to be sped- 
 ted m the order. After the issuing of an execution against property 
 nd upon proof by affidayit, of a party or otherwise, to the satisfac- 
 ion of the conrt,_or a judge thereof, or county judge, or any judge 
 f the court of common pleas of the city and county of New York, 
 liat any judgment debtor, residing in the county where such judge 
 r officer resides, has property, which he unjustly refuses to apply 
 Dwards the satisfaction of the judgment, such court or judge may, 
 y an order, require the judgment debtor to appear at a specified 
 ime and place, to answer concerning the same ; and such proceed- 
 igs may thffleupon be had for the application of the property of the 
 idgment debtor towards the satisfaction of the judgment as are 
 irovided upon the return of an execution. Whenever it shall satis- 
 actotily appear, by affidayit, to a justice of the supreme court that 
 ach county judge, or judge of said court of common pleas, is inca- 
 acttated from acting in any of the proceedings whatever, herein 
 nthorized, from any cause or causes whatsoever, such justice of 
 lie supreme court shall have the same powers and authority, in aU 
 ases whatever, as are herein conferred- upon him as to cases of 
 idgments in the supreme court. On an examination under this 
 action, either party may examine witnesses in his behalf, and the 
 idgment debtor may be examined in the same manner as a witness. 
 Qstead of the order requiring the attendance of the judgjnent 
 ebtor, the judge may, upon proof, by affidavit or otherwise, to his 
 atisf action, that there is danger of the debtor's leaving, the State, or 
 oncealing himself, and that there is reason to believe he has prop- 
 rty which he unjustly refuses to apply to such judgment, issue a 
 rariant requiring the sh^-iff of any county where such debtor 
 lay be to arrest him and bring him before such judge. Upon being 
 rought before thejudge, hemay be examined on oath, and if it 
 lien appears that there is danger of the debtor's leaving the State^ 
 nd that he has property which he has unjustly refused to apply to 
 Bch judgment, ordered to enter into an undertaking with one or 
 loie sureties, that,he will from time to time attend before the judg^ 
 18 - 
 
06 <50DE or PEOCSDUEB. [§§ 293j 294 
 
 s he s'lall direct, and that he will not, during the pendency of the 
 rocee dings, dispose of any portion of his property, not exempt 
 rdm execution. In default of entering into such undertaking, he 
 lay be committed to prison by warrant of the judge as for a coa 
 3mpt. No person shall, on examination pursuant to this chapter, 
 e excused from answering any question on the ground that his 
 xamination will tend to convict him of the commission of a fraud ; 
 ut his answer shall not be used as evidence against him in any 
 rimiual proceeding or prosecution. Nor shall he be excused from 
 Qswering any question on the ground that he has, before the ex- 
 mination, executed any conveyance, assignment or transfer of his 
 roperty for any purpose, but his answer shall not be used as evi- 
 ence against him in any criminal proceeding or prosecution. 
 
 § 893. (Being § 248 of 184S.) After the issuing of execution 
 gainst property, any person indebted to the judgment debtor may 
 ay to the sheriff the amount of his debt, or so much thereof as 
 lall be necessary to satisfy the execution, and the sheriff's receipt 
 lall be a sufficient discharge therefor. 
 
 (Am'd in 1849.) 
 
 § 293, (As am'd in 1849.) After the issuing of execution against 
 roperty, any person indebted to the judgment debtor may pay to 
 le sheriff the amount of his debt, or so much thereof as shall be 
 ecessary to satisfy the execution, and the sheriff's receipt shall be a 
 ifflcient discharge /or the amount so paid. 
 
 § 294 (Being § 249 of 1848.) tjpon an affidavit that any person 
 as property of the judgment debtor, or is indebted to him, the 
 idge may, by an order, require such person to appear at a speciffed 
 me and place, and be examined concerning the same. 
 
 (Am'd m 1849 and 1863.) 
 
 § 294 (As am'd in 1849.) After the issuinff or return of an ex^eu- 
 on of/ainst property of the judgment debtor, or cf <my one of several 
 sbtors in the same judgment, avd upon an affidavit that any person, 
 ■• corporation, has property of such judgment debtor, or is indebted 
 ) him in am, oumouid exceeding ten doUa/r», the judge may, by an 
 rder, require such person, or eorporaMon, or any offi/xr 'w member 
 wreof, to appear at a specified time and place, and answer concem- 
 ig the same. The judge may also, in his discretion, require notice of 
 
§§ 294-296.] CODE OF PEOCBDUEE. 20? 
 
 tuch proceeding to be gisen to any pa/rty to the action, in such manner 
 as may seem to Mm proper. 
 
 § 294. (As am'd in 1863.) After the issuing or return of an 
 execution against property of the judgment debtor, or of any one 
 of several debtors in the same judgment, and upon an affidavit 
 that any person or corporation has property of such judgment 
 debtor, or is indebted to him in an amount exceeding ten 
 dollars, the judge may, by an order,^ require such person or 
 corporation, or any officer or member thereof, to appear at a 
 specified time and place, and answer concerning the same. 
 The judge may also, in his discretion, require notice of such 
 proceeding to be given to any party to the action, in such manner 
 as may seem to him proper. 
 
 The proceedings mentioned in this sec&m, and in section 392, may be 
 taken upon Uie return of an execution unsaOsJied, issued upon a jttdg- 
 memt recowred in an adion against joint debtors, in which some of the 
 defendants haee not been served with the summons by which said action 
 was commenced, so far as relates to the joint property of such debtors ; 
 and aJU actions by creditors to obtain saUsfa/ition qfjudgmsnts out of the 
 property of joint debtors, are maintainable in the Mke manner and to the 
 Wee effect. These provisions shaU apply to aU proceedings and actions 
 now pending, and not actually terminated by any final judgment or 
 
 % 395. (Being § 250 of 1848.) Witnesses may be required to appear 
 and testify in any proceeding under this chapter, in the same man- 
 ner as upon the trial of the issue. 
 
 (Am'd in 1849.) 
 
 395. (As am'd in 1849.) Witnesses may be required to appear and 
 testify on any proceedings under this chapter, in the same manner as 
 upon the trial of an issue. 
 
 § 296. (Being § 251 of 1848.) If the party or witness reside in the 
 county where the order is made, he shall be required to attend 
 before the judge ; if in any other county, before a referee, as pro- 
 vided in section 355. In such case, the examination shall be taken 
 by the referee and certified to the judge. 
 
 (Am'd in 1849.) 
 
 § 396. (As am'd in 1849.) The party or witness may be required 
 to attend before the judge, or before a referee appointed by the 
 
208 CODE OF PEOCHDFRB, [§§ 297, 298. 
 
 court or Judge j if before a referee, the examination shall be taken 
 by the referee, and certified to the judge. All examinations and 
 answers befprp a judge or referee, under this chapter, shall be on 
 oath, except that when a corporation answers, the answer shall be 
 on the oath of an officer thereof. 
 
 § 397. (Being § 252 of 1848.) The judge may order any property 
 of the jud^nent debtor, not exempt from execution, in the hands 
 either of himself or of' any other person, or due to the judgment 
 debtor, to be iipplied towards the satisfaction of the judgment. 
 
 (Am'd in 1851.) 
 
 I 297. (As ani'd in 1851.) The judge may order any property of 
 the judgment debtor, not exempt from execution, in the hands 
 either of himself or any other person, or due to the judgment 
 debtor, to be applied towards the satisfaction of the judgment, 
 except that the eaminga of the debtor fbr his personal services, at any 
 Ume inithin sixty days n^ist preceding the order, cannot be so aippMed, 
 when it is made to wppea/r by the debtm's affidamt, or otheruyise, that 
 eudi ea/rnings a/re necessary for the iise of a famiii/y supported whoVy 
 or pa/rdy by his labor. 
 
 § 298. (Being § 253 of 1848.) The judge may also, by order, 
 appoint a receiver of the property of the judgment debtor, in the 
 same manner, and with the like authority, as if the appointment 
 were made by the court, according to section 300. The judge may 
 also; by order, forbid a transfer of the property of the judgment 
 debtor and any interference therewith. 
 
 (Am'd in 1849, 1851, 1862 and 1863.) 
 
 § 298. (As am'd in 1849.) The judge may also, by order, appoint 
 a receiver of the property of the judgment debtor, ta the same 
 manner, and with the like authority as if the appointment were 
 made by the court, according to section %4A. The judge may also 
 by order, forbid a transfer, or other disposition of the property of 
 the judgment debtor, not exempt from execution, and any inters 
 f erence therewith. 
 
 § 298. (As am'd ill 1851.) The judge may also, by order, appoint a 
 receiver of the property of the judgment debtor, in the same man- 
 ner, and with the like authority, as if the appointment was made 
 by the court according to section 344. But, before the Ofppotniment 
 
§ 298.] CODE OB" PKOCBDUEB. 209 
 
 (^gachrem'oer, the judge shaU ascertain if practiccgile, hy the oaih of the 
 jmrtj/, or offwrwiae, wheOier any oOter supptemevtm^ praceedinga asre 
 pending againat the judgment debtor, and, if xweh proceedings a/re so, 
 pending, the plaintiff therein shod have notice to appem- before him, 
 amd thaU likeimse ham notice of aU subseguemt proceedings in reMion 
 to said receieerthip. No more than one recdmr tif the property of a 
 jwdgmmt d/cbUyr tiwU be appoinixd. The judge may also, by order, 
 forbid a transfer or other disposition of the property of the judg-: 
 ment debtor, not exempt from execution, and any interferencd' 
 therewith. 
 
 § 398. (As am'd in 1863.) Same as § 398, as amended in 1831,' 
 except that the following words were added at the end thereof : 
 
 " Whenever the judge shall grant an order for the appointment 
 of a receiver of the property of the judgment debtor, the same 
 shall be filed in the oflSce of the clerk of the coimty where flie 
 judgment roll in the action or transcript from justice's judgment, 
 upon which the proceedings are taken, is filed ; and the said clerk 
 shall record the order in a book to be kept for that purpose in hia 
 office, to be called 'book of orders appointing receivers of judgment' 
 debtors,' and shall note the time of the filing of said order therein. 
 A certified copy of said order shall be delivered to the receiver 
 named therein, and he shall be vested with the property and effects 
 of the judgment debtor from the time of the filing and recording of 
 the order as aforesaid. The receiver of the judgment debtor shall 
 be subject to the direction and control of the court in which the 
 judgment was obtained upon which the proceedings are founded ; 
 or if the judgment is upon a transcript from justice's court, filed in 
 county clerk's office, then he shall be subject to the direction and 
 control of the coimty court." 
 
 § 298. (As am'd in 1863.) The judge may also, by order 
 appoint a. receiver of the property of the judgment debtor, 
 in the same manner and with the like authority as if the 
 appointment was made by the court according to section 344. 
 But, before the appointment of such receiver, the judge shall 
 ascertain, if practicable, by the oath of the party, or otherwise, 
 whether any other supplementary proceedings are pending against 
 the judgment debtor, and, if such proceedings are so pending, the 
 plaintiff therein shall have notice to appear before him, and shall 
 likewise have notice of aU subsequent proceedings in relation to 
 18* 
 
210 CODE OP PKOCEDUEE. [§ 299. 
 
 said receivereMp. No more than one receiver of the property of a 
 judgment debtor shall be appointed. The judge may also, by 
 order, forbid a transfer or other disposition of the property of the 
 judgment debtor, not exempt from execution, and any interference 
 therewith. ^ 
 
 Whenever the judge shall grant an order for the appointment of 
 a receiver of the property of the judgment debtor, the same shall be 
 filed in the office of the clerk of the county where the judgment roll 
 in the action, or transcript from justice's judgment, upon which the 
 proceedings are taken, is filed ; and the said clerk shall record the 
 order in a book to be kept for that purpose in his office, to be called 
 " book of orders appointing receivers of judgment debtors," and 
 shall note the time of the filing of said order therein. A certified 
 copy of said order shall be delivered to the receiver named therein, 
 and he shall be vested with the property and eflects of the judgment 
 debtor Irom the time of the filing and recording of the order as 
 aforesaid. The receiver of the judgment debtor shall be subject to 
 the direction and control of the covirt in which the judgment was 
 obtained upon which the proceedings are founded; or, if the judg- 
 ment is upon a transcript from justice's court filed in county clerk's 
 office, then he shall be subject to the direction and control of the 
 county court. 
 
 But before lie shaU be vested with amy real property of sudi judgment 
 debtor a certified copy cfsaid order sTwUdto beJUed and recorded in the 
 office of the clerk of the comity in which amy real estate of such judgment 
 deblffr sought to be affected by such order is situated, amd also in the office 
 of the derk of the county in which sm^ judgment debtor resides. 
 
 § 299. (Being § 354 of 1848.) If it appear that a person so brought 
 before the judge claims an int^est in the property of the judgment 
 debtor, adverse to him, such interest shall be recoverable only in 
 an action by the receiver ; but the judge may, by order, forbid a 
 transfer or other disposition of such interest, till a sufficient oppor- 
 tunity be given to the receiver to commence the action. 
 
 (Am'd in 1849.) ' 
 
 § 299. (As am'd in 1849.) If it appear that a person or corpora- 
 tion alleged to Ttam property cf the judgment debtor or indebted to him, 
 claims an interest in the property, adverse to him, or denies the debt, 
 such interest or debt shall be recoverable only in an action against 
 
§§ 300-302.] CODB OP PBOCEDUEE. 211 
 
 tueh pergon or eorporaMon by the receiver; but the judge may, by 
 order, forbid a transfer or other disposition of such property or 
 interest, till a sufficient opportunity be given to the receiver to com- 
 mence the action, and prosecute the same to judgment and execuMon ; 
 but such order may be modified or dissolved, by the judge granting the 
 same, at amy time, on such seetmty as he shaU direct. 
 
 § 300. (Being § 255 of 1848.) The judge may, in his discretion, 
 order a reference to a referee, agreed upon or appointed as pre- 
 scribed in sections 338 and 339, to report the evidence or the &cts. 
 
 (Am'd in 1849 and 1857.) 
 
 I 300. (As am'd in 1849.) The judge may, in his discretion, order 
 a reference to a referee, agreed upon or appointed by him, to report 
 the evidence or the facts. 
 
 I 300. (As am'd in 1857.) The judge may, in his discretion, order 
 a reference to a referee, agreed upon by the parties or appointed by 
 him, to report the evidence or the facts, and may, in his discretion, 
 appoint such r^eree in the fi/rst order or at any time. 
 
 § 301. (Being § 256 of 1848.) The judge may aUow to the judg- 
 ment creditor, or to any party or witness so examined, his traveling 
 expenses, and a fixed sum in addition, not exceeding thirty dollars, 
 as costs. 
 
 (Am'd in 1849.) 
 
 I 301. (As am'd in 1849.) The judge may allow to the judg- 
 ment creditor, or to any party so examined, whether a pwrty to the 
 action or not, witnesseif fees and disbursements, and a fixed sum in 
 addition, not exceeding thirty dollars, as costs. 
 
 § 303. (Being § 257 of 1848.) If any party or witness disobey an 
 order of the judge duly served, such party or witness may be pun- 
 ished by the judge as for a contempt 
 
 (Am'd in 1849 and 1851.) 
 
 § 302. (As am'd in 1849.) If any person, party or witness disobey 
 an order of the judge, or 'referee, duly served, such person, party or 
 witness may be pimished by the judge as for a contempt. 
 
 § 302. (As am'd in 1851.) If any person, party or witness dis- 
 obey an order-of the judge, or referee, duly served, such person. 
 
2r2' CODE OF PEOCEDUEE. [§§ 303, 304, 
 
 party or witness may be punished by the judge as for a contempt. 
 And in aU eases ef commilment under this clw/pter, or the act to oJmWi 
 vm/prisominent for debt, the person committed mJay, in case of irwMUy 
 to perform the act required j or to endure the imvpriaomnerd, he discharged 
 from im^^risonmentf ty the cowrt or judge commiUmg him, or the amri 
 in which the judgmetii was rendered, on mch terms as may be just. 
 
 TITZiX: X. 
 
 Of the Costs in Civil AetiojiS. 
 
 Bbotioit 303. Vee bUlaboUsIied ; allowances ^ven, termed costs. 
 
 304. Wben allowed, of conrse, td plaintiff. 
 
 305. Whenallowed to defendant. 
 
 306. When allowed to either party in the discretion of the court. 
 
 307. Amount of costs allowed. " 
 
 308. Allowance, in addition, of a percentage on the recovery or claim. 
 
 309. Percentage; how computed. 
 
 ' 310. Interest on verdict or report, when allowed, 
 all. Costa, how to-he inserted in jndgmeut. 
 
 312. Clerk's fees. 
 
 313. Eeferee^s fees. 
 
 314. Costs on postponement of triall 
 
 316. Costs on a motion. :.- 
 
 316. Costs against infant plaintiff. 
 
 SIT. Posts ia an action by or against an executor or adminiatxatinr, 
 
 trustee of an express trust, or a person expressly authorized by 
 
 . statute to sue. .. , ,, . . ,, 
 
 318. Costs on review of a decision of an inferior court, in a special 
 
 proceeding. 
 
 319, 320. Costs in actions by the people. 
 
 321. Costs against assignee of cause of action, after action bronght. 
 332. Costs on a settlement. 
 
 . § 303. (Being § 258.of 1848.) AU statutesestablishing or regulatmg 
 the costs or fees of attorneys, solicitors and counsel in civil actions,, 
 and all existing, rules and provisions of law, restricting or controlling 
 the right of a party to agree with an attorney, solicitor or counsel, 
 for his compensation, are repealed; and hereafter the measure of 
 sach compensation shall, be left to the agreement, express or implied, 
 of! the' parties. But there may be allowed to the prevailing partyj ' 
 upon the judgment, certain sums, by way of indemnity, for his 
 expenses in the action; which allowances^ are in this act termed 
 costs. 
 
 § 304 (Bsing § 259 of 1848.) Costs shall be allowed, of course, 
 to the plaintiff, upon a recovery, in the following cases : 
 
 1. In an action for the recovery of real property, or when a claim 
 of title to real property arises on the pleadings, or is certified by the 
 court to have come in question at the trial. 
 
§ 304.] CODE OF PEOCEDUEE. 219 
 
 2. In an action to recover the possession of personal property.. 
 
 3. In the actions of which, according to section 47, a court of a 
 justice of the peace has no jurisdiction. 
 
 4. In an action for the recovery of money, ■where the plaintiff shall 
 recover fifly dollars or more. 
 
 (Am'd in 1849 and 1863,) 
 
 § 304 (As am'd in 1849.) Same as § 304, as passed in 1848, to 
 sub 3, and from thence as follows : 
 
 3. In the actions of which, according to section 54, a court of a 
 justice of the peace has no jurisdiction. 
 
 4. In an action for the recovery of money, where the plaintiff 
 shall recover fifty dollars or more. But in an action for assault, 
 battery, false imprisonment, libel, slander, malicious prosecution, 
 criminal conversation or seduction, if the plaintiff recover less than 
 fifty dollars damages, he .shall recover no more costs than damages. 
 And in an action to recover the possession of personal property, if 
 the plaintiff recover less than fifty dollars damages, he shall recover 
 no more costs than damages unless he recovers also property, the 
 value of which, with the damages, amounts to fifty dollars. Such 
 value must be determined by the jury, court or referee by whom the 
 action is tried. 
 
 When several actions shall be brought on one bond, recognizance, 
 promissory note, bill of exchange or other instrument in writing, or 
 in any other case, for the same cause of action, against several 
 parties who might have been joined as defendants in the same 
 action, no costs other than disbursements shall be allowed to the 
 plaintiff in more than one of such actions,- which shall be at his 
 election, provided that the party or parties proceeded against in 
 such other action or actions shall, at the time of commencement 
 of the previous action or actions, have been within this State,, and 
 not secreted. 
 
 § 304, (As am'd in 1862.) Costs shall be allowed, of course, to the 
 plaintiff, apon a recovery, in the following cases : 
 
 1; In an action for the recovery of real property, or when a claim 
 of title to real property arises oh the pleadings, or is certified by the 
 court to have come in question -at the trial. 
 
 2. In an action to recover the possession of personal property. 
 
 3. In the actums of which a court of justice of the peace has 7U> 
 
1H4 CODE OF FEOCEDUEE. [§§ 305, 306. 
 
 4 In an action for the recovery of money, where the plaintiff shaU 
 recover fifty dollars ; but in an action for assault, battery, false 
 imprisonment, libel, slander, malicious prosecution, criminal conver- 
 sation or seduction, if the plaintiff recover less than fifty dollars 
 damages, he shall recover no more costs than damages. And in 
 action to recover the possession of personal property, if the plaintiff 
 recover less than fifty dollars damages, he shall recover no more 
 costs than damages, unless he recovers also property, the value of 
 which, with the damages, amounts to fifty dollars, or the possession 
 of property ie ac^udged to Mm, the vcUiu^ of which, with the dorni- 
 (tgeg, amouvis to fifty dollars; such vahie must be determined by 
 the jury, court or referee by whom the action is tried. "When 
 several actions shall be brought on one bond, recognizance, promis- 
 sory note, bill of exchange, or other instrument in writing, or in any 
 other case, for the same cause of action, against several parties who 
 might have been joined as defendants in the same action, no costs 
 other than disbursements shall be allowed to the plaintiff in more 
 than one of such actions,, which shall be at his election, provided 
 that the party or parties proceeded against in such other action or 
 actions shall, at the time of the commencement of the previous 
 action or actions, have been within this State, and not secreted. 
 
 § 305. (Being § 260 of 1848.) Cbsts shall be allowed of course to 
 the defendant, in the actions mentioned in 1^ last section, unless the 
 plaintiff be entitled to costs therein. 
 
 § 306. (Being § 361 of 1848.) In other actions costs may be 
 allowed or not, in the discretion of the covert. 
 (Am'd in 1849 and 1851.) 
 
 § 306. (As am'd in 1849.) In other actions costs may be allowed 
 or not, in the discretion of the court. 
 
 When there a/re smeraJ, defendants, not united in interest, and 
 maikmg aepaeroite defenses- by separate answers, amd the plaintiff fails to 
 recover judgment against oM, the cowrt may awa/rd costs to such of tits 
 defemdamts as ha/ce judgment in their fawr, or any of them. 
 
 In the foUowing cases the costs of an appeal shaM be in the discretion 
 of the court : 
 
 1. Where a new trial shaU be ordered. 
 
 2. Where a judgment shaU be affirmed in part and reversed in part. 
 
§§ 306, 307.] CODE OP PBOCBDUEB. 215 
 
 § 306, (As am'd in 1851.) In other actions costs may be allowed 
 6r not, in the discretion of the court. 
 
 In aU actions where there are several defendants, not united in 
 interest, and making separate defenses by separate answers, and the 
 plaintiff fails to recover judgment against aU, the com-t may award 
 costs to such of the defendants as have judgment in their favor, or 
 any of them. 
 
 In the following cases the costs of an appeal shall be in the dis- 
 cretion of the court : 
 
 1. When a new trial shall be ordered. 
 
 2. When a judgment shall be aflBrmed in part and reversed in part. 
 
 1 307. (Being § 362 of 1848.) When allowed, costs shall be as 
 follows : 
 
 1. To the plaintiff for all proceedings before notice of trial (includ- 
 ing judgment when entered). In an action where judgment upon 
 failure to answer may be had without application to the court, 
 seven dollars ; in an action where judgment can only be taken on 
 application to the court, twelve dollars; for all subsequent proceed- 
 ings before trial, seven dollars. 
 
 2. To the defendant,- for aU the proceedings before notice of trial, 
 five dollars ; for aU subsequent proceedings before trial, seven 
 dollars. 
 
 3. For the trial of issues of law, if separate from the trial of issues 
 of fact, to the plaintiff, fifteen dollars ; to the defendant, twelve 
 dollars. 
 
 4 For the trial of issues of fact, if separate from the trial of 
 issues of law, to the plaintiff, fifteen dollars; to the defendant, 
 twelve dollars. For the trial of issues of fact and of law, when 
 tried at the same time, to the plaintiff, twenty dollars ; to the de- 
 fendant, fifteen dollars. 
 
 5. To either party on appeal, excepting to the court of appeals, 
 before argument, fifteen dollars ; for argument, thirty dollars. 
 
 6. To either party on appeal to the court of appeals, before argu- 
 ment, twenty dollars ; for argument, fifty dollars. • 
 
 7. To either party, for every circuit or term at which the cause 
 is necessarily on the calendar and not reached or postponed, ex- 
 cluding that at which it is tried or heard, ten dollars. 
 
 (Am'd in 1849, 1851, 1852, 1857, 1858, 1859, 1862, 1863, 1864, 1866 and 
 1867.) 
 
216 CODE OJ?' PKOCBDUEB. [§ 307. 
 
 § 307. (As am'd in 1849.) Same as § 307, as passed in 1848, to sub. 
 4, and from thence as follows : 
 
 4. For the trial of the issues of fact, if separate from the trial of the 
 issues of law, to the plaintiff, fifteen dollars; to the defendant, 
 twelve dollars. 
 
 5. For the trial of the issues of fact and of law, when tried at the 
 same time, to the plaintiff, twenty dollars ; to the defendant, fifteen 
 dollars. 
 
 6. To either party on appeal, excepting to the court of appeals, 
 before argument, flftBen dollars ; for argument, thirty dollars ; Jmt 
 this proms/um shaUnot a/pply to wppecdam eases other than tlwse men- 
 tioned in section 349. 
 
 7. To either party on appeal to the court of appeals, before argu- 
 ment, twenty-five doUai's ; for argument, fifty dollars. 
 
 8. To either party, for every circuit or term at which the cause is 
 necessarily on the calendar and not reached, or is postponed, ex- 
 cluding that at which it is tried or heard, ten dollars. 
 
 § 307. (As am'd in 1851.) Same as § 307, as amended in 1849, ex- 
 cept sub. 6, which was amended so as to read as follows : 
 
 6. To either party oh appeal, except to the court of appeals, be- 
 fore argument, fifteen dollars ; for argunlent, thirty dollars ; but this 
 provision shall not apply to appeals from an order granting or deny- 
 ing a norirenumerated motion, 
 
 § 807. (As am'd in 1853.) Same as § 307, as amended in 1851, 
 except that sub. 6 was amended so as to read as follows : 
 
 "6. To either party on appeal, except to the court of appeals, 
 before argument, flf teen dollars ; for argument, thirty dollars ; but 
 this provision shall not apply to appeals in the eases mentioned in 
 section 349." 
 
 And sub. 8 was amended so as to read as follows : 
 
 "8. To eithjBr party for every circuit or term at which the cause 
 is necessarily on the calendar, and not reached or postponed, exclud- 
 ing that at which it is tried or heard, ten dollars: < 
 
 "But in an action hereafter brougJit to recover dower, lefore 
 admeasurement, of real property aliened by the husband, the plaintif 
 shall not recover costs unless ittuppea/r tJiat dower was demanded 
 before the commencement of the action, and was refused." 
 
I 307.] CODE OF PEOCEDURE. 217 
 
 § 307. (As am'd in 1857.) When allowed costs shall be as follows : 
 
 1. To the plaintiff for all proceedings before notice of trial 
 (iacluding judgment when rendered). 
 
 In an action where judgment, upon fnilure to answer, may be had 
 without application to the court, ten doUars; in an action where 
 judgment can only he taken on application to the court, fifteen dol- 
 lars ; and two dolla/rsfor each additimiM defendamt upon whom process 
 ghdH have been served. 
 
 3. To the defendant for all proceedings before notice of trial, ten 
 dollars. 
 
 3. To either party for aU subsequent proceedings before trial, ten 
 dollars. 
 
 4 To eit?ier party for the trial of an issue of law, fifteen dollars ; 
 for every trial of an issue of fact, twenty dollars. 
 
 5. To either party on appeal, except to the court of appeals, and 
 except appeals in the cases mentoined in section 349, before argu- 
 ment, fifteen dollars ; for argument, thirty dollars ; and the same 
 costs shaU be aUowed to either part^ before argument, and for a/rgument 
 in cases oirdeired, to be hea/rd in the first instance at general term under 
 the provisions of section 265. 
 
 6. To either party, on appeal to the court of appeals before argu- 
 ment, twenty-five dollara ; for argument, fifty dollars. 
 
 7. To either party for every circuit or term, Twt exceeding three, at 
 which the cause is necessarily on the calendar, and is not reached 
 or postponed, ten dollars. 
 
 But in an action hereafter brought to recover dower before ad- 
 measurement of real property aliened by the husband, the plaintiff, 
 shall not recover costs unless it appear that the dower was demanded 
 before the commencement of the action, and was refused. 
 
 The same costs shaU be allowed to the plaintiff in proceedings under 
 diopter 3, title 13 of the second pa/rt of this code as upon the commence- 
 ment of an action. 
 
 § 307. (As am'd in 1858.) Same as § 307, as amended in 1857, 
 except in subdivisions 5, 6 and 7, which were amended respectively 
 so as to read as follows : 
 
 5. To either party on appeal, except to the court of appeals, and 
 except appeals in the cases mentioned in section 849, before argu- 
 ment, fifteen dollars; for argument, thirty doUars; and the same 
 costs shall be allowed to either party before argument, and for argu- 
 19 
 
218 CODE OF PEOCED0EB. [§ 30^. 
 
 ment, on appUcaUon for judgment, upon gpeeiaZ verdict, or upon ver- 
 dict guljject to the opimium, of the cowrt, as for a new trial on a case 
 made, and in cases where exceptums aire ordered to be heard, in the 
 first instance, at a general term, under the provisions of section 
 365. 
 
 6.>To either party on appeal to the court of appeals, before argu- 
 ment, twenty-five dollars, for argument, fifty dollars ; arid yihen a 
 pidgm^nt is affirmed the court may, in its discretion, also ama/rd 
 damhoLges for the delay, not exceeding ten per cent upon the amount of 
 Me judgment. 
 
 7. To either party, for every circuit or term not exceeding ^e cir- 
 cuits and fine special and five general terms, at which the cause is 
 necessarily on the calendar, and is not reached or postponed, ten 
 dollars. 
 
 §307. (As am'd in 1859.) Same as § 307, as amended in .1858, 
 except in sub. 1, which was amended so as to read as follows : 
 
 1. To the plaintiff for all proceedings before notice of trial (includ- 
 iag judgment when rendered.) 
 
 In an action where judgment upon failure to answer may be had 
 without application to the court, ten dollars ; in an action where 
 judgment can only be taken on application to the court, fifteen dol- 
 lars; and two dollars for each additional defendant upon whom 
 process shall have been served, except in actions for the foredosure of 
 a m/yrtgaige, the aUowcmcefor additional defendcmts is Umited to ten such 
 defendamts, and in other cases tofime such defendants. 
 
 § 307. (As am'd in 1863.) Same as § 307, as amended in 1859, 
 except in subdivisions 3, 5 and 7."which were respectively amended 
 so as to read as follows : 
 
 3. To either party, for all subsequent proceedings, before trial, ten 
 dollars. To either pa/rty for attendmg upon a/nd taking the deposiMon 
 of a witness conditionally, or attending to perpetuate his testimony, ten 
 doUa/rs; to either pa/rty for d/raming iitt&rrogatories, or cross4nterTogar 
 tories, to annex to a commission for the talcing of testimony, ten doUa/rs. 
 
 5. To either party on appeal, except to the court of appeals and 
 except appeals in the cages mentioned in section 349, before argu- 
 ment, fifteen dollars ; for argument, thirty dollars ; and the same costs 
 shall be allowed to either party before argument and for argument 
 on application for judgment, upon special verdict, or upon verdict 
 
§ 307.] CODE OF PEOCEDUKE. 219 
 
 Bubject to the opinion of the court, or for a new trial on a case made, 
 and in cases where exceptions are ordered to be heard in the first 
 instance at a general term, under the provisions of section 265. 
 
 7. To either party, for every circuit or term, not exceeding five 
 circuits, and five special and five general terms, at which the cause 
 is necessarily on the calendar and is not tried, or is postponed by 
 order of the court, ten dollars. 
 
 § 307. (As am'd in 1863.) Same as § 307, as amended in 1862, 
 except in sub. 3, which was amended so as to read as follows: 
 
 3. To either party, for all subsequent proceedings before trial, ten 
 dollars. To either party, for attending upon and taking the deposi- 
 tion of a witness conditionally, or attending to perpetuate his testi- 
 mony, ten dollars ; to either party for drawing interrogatories, or 
 cross-interrogatories, to annex to a commission for the taking of 
 testimony, ten dollars ; and for attending the exa/mination of a party 
 t^ore trial, ten doUars ; for makmg and serving a case, twenty dolla/rs; 
 and for making and serving amendments thereto, ten doUwrs. 
 
 § 807. (As am'd in 1864.) When allowed, costs shall be as follows ; 
 
 1. For all proceedings before trial including actions where judg- 
 ment on failure to answer can only be taken on application to the 
 court, twenty-five dollars; where judgment may be taken upon 
 failure to answer without application to the court, ten dollars ; for 
 each additional defendant served with process, not exceeding ten, 
 two dollars, and for each necessary defendant in excess of that num- 
 ber, served with process, one dollar. 
 
 2. To the defendant for all proceedings before notice of trial, ten 
 dollars; and for all proceedings after notice of and before trial, 
 fifteen dollars. 
 
 3. Ta either party, where a new trial shall be had, for all proceed- 
 ings before such new trial, and after the granting of such new trial, 
 twenty-five dollars ; for attending upon and taking the deposition 
 of a witness conditionally, or attending to perpetuate Ms testimony, 
 ten dollars ; for drawing interrogatories to annex to a commission 
 for the taking of testimony, ten dollars ; for attending the examina- 
 tion of a party before trial, ten dollars ; for making and serving a 
 case, or case containing exceptions, twenty dollars, except that, 
 where the case shall necessarily contain more than fifty folios, there 
 shall be allowed ten dollars in addition thereto ; and for making 
 and serving amendments thereto, ten dollars. 
 
220 CODE OP PEOCEDUEE. [§ 307. 
 
 4. To either party for the trial of an issue of law, twenty dollars, 
 for (ivery trial of an issue of fact, thirty dollars ; and where the 
 trial shall necessarily occupy more than two days, ten dollars in 
 addition thereto. 
 
 5. To either party on appeal, except in the court of appeals and 
 excep t appeals in the cases mentioned in section 349, before argument, 
 twenl/ dollars; for argument, forty dollars; and the same costs 
 shall he allowed to either party before argument and for argument 
 on application for judgment upon special verdict, or upon verdict 
 subject to the opinion of the court, or for a new trial on a case 
 made, and in cases where exceptions are ordered to be heard in the 
 first instance at a general term, under the provisions of section 265. 
 
 6. To either party, on appeal to the court of appeals, before argu- 
 ment, thirty dollars ; for argument, sixty dollars ; and when a judg- 
 ment is aflBrmed, the court may, in its discretion, also award damages 
 for the delay, not exceeding ten per cent on the amount of the 
 judgment; for preparing and serving a case, or case containing 
 exceptions, in appeals to the court of appeals, twenty dollars. 
 
 7. To either party, for every circuit or term, not exceeding five 
 circuits, and five special and five general terms, at which the cause 
 is necessarily on the calendar and is not tried, or is postponed by 
 order of the court, ten dollars ; but in an action hereafter brought to 
 recover dower, before admeasurement of real property aliened by the 
 husband, the plaintiff shall not recover costs unless it appear that the 
 dower was demanded before the commencement of the action and 
 was refused. 
 
 The same costs shall be allowed to the plaintiff in proceedings 
 under chapter 2, title 12, of the secopd part of this code 
 (sections 375 to 381) as upon the commendement of an action. 
 
 § 307. (As am'd m 1866.) When allowed, costs shall be as follows : 
 
 1. To theplmntiff, for all proceedings before notice of trial, fifteen 
 dollars; for all proceedings after notice of and before trial, ^fe«ra 
 dollars ; for each additional defendant served with process, not ex- 
 eeeding ten, two dollars ; and for each necessary defendant in excess 
 of that number, served with process, one dollar. 
 
 2. Same as in 1864. 
 
 8. To either party, where a new trial shall be had, for all proceed- 
 ings after the grantmg of and before such new trial, twenty-five 
 dollars ; for attending upon and taking the deposition of a witness 
 
^ § 307.] CODE OF PKOCEDUEB. 221 . 
 
 conditionally, or attending to perpetuate his testimony, ten dollars ; 
 for drawing interrogatories to annex to a commission for the taking 
 of testimony, ten dollars ; for attending the examination of a party 
 before trial, ten dollars ; for making and serving a case, or case con- 
 taining exceptions, twenty dollars, except that where the case shall 
 necessarily contain more than fifty folios, there shall be allowed ten 
 dollars in addition thereto; and for making and serving amend- 
 ments thereto, ten dollars. To the pUantiff, for the appointment of a 
 guardian of an infant defendant, ten doUa/ra; TnU no nwre than ten 
 doUarg shall be allowed for the a/ppointment of guardians in any one 
 action. To the plairiMff, for proewring an order of injunction, ten 
 doUa/rs. 
 
 (Subdivisions 4, 5 and 6, same as in 1864.) 
 
 7. To either party, for every circuit or term, not exceeding five 
 circuits, and five special and five general terms, at which the cause 
 is necessarily on the calendar and is not tiled, or is postponed by 
 order of the court, ten dollars ; and for every term not exceeding ten, 
 ecduding the term at which the ca/uee is argued in the court of a/ppeals, 
 tendoUa/rs; but in an action hereafter brought to recover dower, 
 before admeasurement of real property aliened by the husband, the 
 plaintifl" shaU not recover costs unless it appear that the dower was 
 demanded before the commencement of the action and was refused. 
 
 The same costs shall be allowed to the plaintiff in proceedings 
 under chapter 2, title 12, of the second part of this code (section 
 375 to 381), as upon the commencement of an action. 
 
 § 307. (As am'd in 1867.) When allowed, costs shall be as follows : 
 
 1. To the plaintiff for all proceedings before notice of trial in 
 actions where judgment for faMwre to ammer can ie taken without 
 aipplicaiion to the court, fifteen dollars ; where judgment can onZy ie 
 taken on such o/ppUcaMion, twenty-five dollars ; for all proceedings after 
 notice of and before trial, fifteen dollars ; for each additional defend- 
 ant served with process, not exceeding ten, two dollars, and for 
 each necessary defendant in excess of that number, served with 
 process, one dollar. 
 
 3. To the defendant, for all proceedings before notice of trial, ten 
 dollars; and. for all proceedings after notice of and before trial, 
 fifteen dollars. 
 
 3. To either party, where a new trial shall be had, for aU pro- 
 ceedings after the granting of and before such new trial, twenty-five 
 19* 
 
222 CODE OF PEOCBDUEB. [§ 30l . 
 
 dollars ; for attending upon and taking the deposition of a witness 
 conditionally, or attending to perpetuate his testimony, ten dollars ; 
 for drawing interrogatories to annex to a commission for the taking 
 of testimony, ten dollars ; for attending the examination of a party 
 before trial, ten dollars ; for making and serving a case, or case con- 
 taining exceptions, twenty dollars, except that where the case shall 
 necessarily contain more than fifty folios, there shall be allowed ten 
 dollars in addition thereto; andrfor making and serving amend- 
 ments thereto; ten dollars. To the plaintiff, for the appointment of 
 a guardian of an infant defendant, ten dollars ; but no more than 
 ten dollars shall be allowed for the appointment of guardians in 
 any one action. To the plaintiff for procuring an order of injunc- 
 tion, ten dollars. 
 
 4. To either party for the trial of an issue of law, twenty dollars; 
 for every trial of an issue of fact, thirty dollars ; and where the 
 trial shall necessarily occupy more than two days, ten dollars in 
 addition thereto. 
 
 5. To either party on appeal, except to the court of appeals and 
 except-appeals in the cases mentioned in subdMsions 1, 3, 4 and 5 of 
 section 349, and except in cases mentioned in the second pa/ragra/ph of 
 section 344, before argument, twenty dollars ; for argument, forty 
 dollars ; and the same costs shall be allowed to either party before 
 argument and for argument on application for judgment, upon special 
 verdict, or upon verdict subject to the opinion of the court, or for a 
 new trial on a case made, and in cases where exceptions are ordered 
 to be heard, in the first instance, at a general term, imder the pro- 
 visions of section 365. 
 
 6. To either party on appeal to the court of appeals, before argu- 
 ment, thirty dollars ; for argument, sixty dollars ; and when a judg- 
 ment is affirmed, the court may, in its discretion, also award damages 
 for the delay-i not exceeding ten per cent on the amount of the 
 judgment; for preparing and serving a case, or case containing 
 exceptiops, in appeals to the court of appeals, twenty dollars. 
 
 7. To either party, for every circuit or term, not exceeding five 
 circuits, and five special and five general terms, at which the cause 
 is necessarily on the calendar and is not tried, or is postponed by 
 
 . order of the court, ten dollars ; and for every term not exceeding 
 ten, excluding the term at which the cause is argued in the court of 
 appeals, ten dollars ; but in an action hereafter brought to recover 
 dower, before admeasurement of real property aliened by the bus- 
 
I 308 ] CODE OP PEOCEDTJKB. 223 
 
 band, the plaintiff shall not recover costs unless it appear that the 
 do\f er was demanded before the commencement of the action and 
 was refused. 
 
 The same costs shall be allowed to the plaintiff in proceedings 
 under chapter 3, title 12, of the second part of this code (sections 
 375 to 381), as upon the commencement of an action. 
 
 § 808. (Bemg § 263 of 1848.) In addition to these allowances, if 
 the action be for the recovery of money, or of real or personal 
 property, and a trial has been had, the court may, in its discretion, 
 in difficult or extraordinary cases, make an allowance of not more 
 than ten per cent on the recovery or claim, as in the next section 
 prescribed, for any amount not exceeding five hundred dollars ; and 
 not more than five per cent for any additional amount. 
 
 (Am'd in 1849, 1857 and 1863.) 
 
 § 308. (As am'd in 1849.) In addition to these allowances, if the 
 action be for the recovery of money, or of real or personal property, 
 and a trial has been had, the court may, in difficult or extraordinary 
 cases, make an allowance of not more than ten per cent on the re- 
 covery or claim, as in the next section prescribed, for any amount 
 not exceeding five hundred dollars ; and not more than five per 
 cent for any additional amount. 
 
 Such allowance may likewise be made, upon the recovery of 
 judgment in any action for the partition of real property, or for the 
 foreclosure of a mortgage, or in which a warrant of attachment has 
 been issued, or for the construction of a will or other instrument in 
 writing, and in proceedings to compel the determination of claims 
 to real property, and also in any case where the prosecution or 
 defense has been unreasonably or unfairly conducted. 
 
 § 308. (As am'd in 1857.) In addition to these allowances there 
 shall be allowed to the plaintifi", upon the recovery of judgment by 
 him, in any action for the partition of real property, or for the 
 foreclosure of a mortgage, or in which a warrant of attachment has 
 been issued, or for an adjudication upon a wiU or other instrument 
 in writing, and in proceediags to compel the determination of claims 
 to real property, the sum of ten per cent on the recovery, as in the 
 next section prescribed, for any amount not exceeding two hundred 
 dollars ; an additional sum of five per cent for any additional amount 
 not exceeding four hundred dollars ; and an additional sum of two 
 
224 CODE or PEOCEDUEE, [§§ 308, 309. 
 
 per cent for any additional amount not exceeding one thousand 
 dollars. 
 
 § 308. (As am'd in 1863.) In addition to these allowances, there 
 shall be allowed to the plaintiff upon the recovery of judgment by 
 him, in any action for the partition of real property, or for the fore- 
 closure of a mortgage, or in any action in which a warrant of 
 attachment has been issued, or for an adjudication upon a wiU or 
 other instrument in writing, and in proceedings to compel the deter- 
 mination of claims to real property, the sum of ten per cent on the 
 recovery, as in the next section prescribed, for any amount not 
 exceeding two hundred dollars ; an additional sum of five per cent 
 for any additional amount not exceeding four hundred dollars ; and 
 an additional sum of two per cent for any additional amount not 
 exceeding one thousand dollars. 
 
 And in the actions above n/i/med, if the tame shaU be settled before 
 judgment therein, like allowances upon the a/mount paid or secured 
 upon such settlement, at one-Jiaif the rates above specifM. 
 
 § 309. (Being § 264 of 1848.) These rates shall be estimated as 
 follows : 
 
 1. If the plaintiff recover judgment, it shall be upon the amount 
 of money, or the value of the property, recovered. 
 
 3. If the defendant recover judgment, it shall be upon the amount 
 of money, or the value of the property, claimed by the plaintiff. 
 
 "Wbere the action is for real or personal property, the value there- 
 of must be determined by the jury, court or referees, by whom the 
 action is tried. 
 
 (Am'd in 1849, 1857, 1858, 1859, 1863, 1865 and 1870.) 
 
 § 309. (As am'd in 1849.) These rates shaU be estimated as fol- 
 lows: 
 
 1. If the plaintiff recover judgment, it shall be upon the amount 
 of money, or the value of the property, recovered, or daimed or 
 aUached, or affected by the construcUon of the wiB, or sought to be pa/r- 
 titioned, or the a/mount found due v/pon the mortgage in cm action for 
 
 2. If the defendant recover judgment, it shall be upon the amount 
 of money, or the value of the property, claimed by the plaintiff, or 
 attached or affected by the construction of the wiU, or of the defendant » 
 
§ 309.] CODE OF PKOCBDURE. 225 
 
 interest in property sougM to be partitioned, or the amowU claimed in 
 an action for foredontre. 
 
 Such amount of ixUue must be determined by the jury, coui't or 
 referees, by whom the action is tried, or judgment rendered, or ths 
 commissioners appointed to r/uike partition in an action therefor. 
 
 § 309. (As am'd in 1857.) These rates shall be estimated upon the 
 value of the property claimed or attached, or affected by the adju- 
 dication upon the will or other instrument, or sought to be parti- 
 tioned, or the amount found due upon the mortgage in an action 
 for foreclosure. And whenever it shall be necessaiy to apply to the 
 court for an order enforcing the payment of an installment falling 
 due after judgment, in an action for foreclosure, the plaintiff shall 
 be jentitled to the rata of allowance in the last section prescribed, 
 but to no more in the aggregate than if the whole amount of the 
 mortgage had been due when judgment was entered. Such amount 
 of value must be determined by the court or by the commissioners, 
 in case of actual partitions. 
 
 I 309. (As am'd in 1858.) Same as § 309 as amended in 1857, ex- 
 cept that the following words were added at the end thereof : 
 
 " In difficult and estraordinaiy cases, when a trial has been had, 
 and in any of the actions or proceedings specified in section 308, 
 the court may also, in its discretion, make a further allowance to 
 any party, not exceeding five per cent, upon the amount of the 
 recovery or claim, or subject-matter involved." 
 
 § 309. (As am'd in 1859.) Same as § 809 as amended in 1858, ex- 
 cept that the last clause was amended so as to read as follows : 
 
 " In difficult and extraordinary cases, when a trial has been had, 
 except in any of the actions or proceedings specified in section 308, the 
 court may also, in its discretion, make a further allowance to any 
 party, not exceeding five per cent, upon the amount of the recov- 
 ery or claim, or subject-matter involved." 
 
 § 309. (As am'd in 1863.) Same as § 309, as amended in 1858, 
 except that the last clause was amended so as to read as follows : 
 
 " In difficult and extraordinary cases, where a trial has been had, 
 except in any of the actions or proceedings other than those for the 
 partition of real estate, specified in section 308, and in actions or pro- 
 
226 CODE OV PEOCBDtTEB. [§ 309. 
 
 ceedings for tfiepartiUon of real estate, the court may also, in its dis- 
 cretion, make a flirtlier allowance to any party, not exceeding five 
 per cent, upon the amount of the recovery or claim, or subject-mat- 
 ter involved. 
 
 § 309. (As am'd in 1865.) These rates shall be estimated upon the 
 value of the property claimed or attached, or affected by the adju- 
 dication upon the will or other instrument, or sought to be parti- 
 tioned, or the amount found due or unpaid upon the mortgage in 
 an action for foreclosure. And whenever it shall be necessary to 
 apply to the court for an order enforcing the payment of an install- 
 ment falling due after judgment, in an action for foreclosure, the 
 plaintiff shall be entitled to the rate of allowance in the last section 
 prescribed, but to no more in the aggregate than if the whole 
 amount of the mortgage had been due when judgment was entered. 
 Such amount of value must be determined by the court or by the 
 commissioners, in case of actual partitions. In difficult and extra- 
 ordinary cases, where a d^ense has been interposed, or in such cases 
 where a trial has been had, and in actions or proceedings for the par- 
 tition of real estate, the court may also, in its discretion, make a fur- 
 ther allowance to any party, not exceeding five per cent upon the 
 amount of the recovery or claim, or subject-matter involved. 
 
 § 309. (As am'd in 1870.) These rates shall -be estimated upon 
 thfe value of the property claimed or attached, or affected by the ad- 
 judication upon the will or other instrument, or sought to be parti- 
 tioned, or the amount found due or unpaid upon the mortgage in an 
 action for foreclosure. And whenever it shall be necessary to 
 apply to the com-t for an order enforcing the payment of an install- 
 ment falling due after judgment, in an action for foreclosure, the 
 plaintiff shall be entitled to the rate of allowance in the last sec- 
 tion prescribed, but to no more in the aggregate than if the whole 
 amount of the mortgage had been due when judgment was en- 
 tered. Such amount of value must be determined by the comM;, or 
 by the commissioners in case of actual partitions. In difficult and 
 extraordinary cases, where a defense has been interposed, or in 
 such cases where a trial has been had, and in actions or proceedings 
 for the partition of real estate, the court may also, in its discre- 
 tion, make a further allowance to any party, not exceeding five 
 per cent, upon the amount of the recovery or claim, or subject- 
 matter involved. 
 
§ 310, 311.] CODE OF PEOCEDtTEB. 227 
 
 And in an action for the foredomre of a mortgage, the court may 
 make a like allowance, not exceeding two and one-hoUfper cent. 
 
 % 310. (Being § 265 of 1848.) When the judgment is for the 
 recovery of money, interest from the time of the -verdict or report, 
 until judgment he finally entered, shall he computed hy the clerk, 
 and added to the costs of the party entitled thereto. 
 
 § 311. (Being § 366 of 1848.) The clerk shall insert in the entry 
 of judgment, on the application of the prevailing party, upon 
 two days' notice to the other, the sum of the charges for costs, as 
 ahove provided, and the necessary disbursements allowed by law, in- 
 cluding the compensation of referees, and the expense of printing 
 the papers upon any appeal. The disbursements shall he stated in 
 detail, and verified by affidavit, which shall be filed. 
 
 (Am'd in 1849, 1857 and 1862.) 
 
 § 811. (As am'd in 1849.) The clerk shall insert in the entry of 
 judgment, on the application of the prevailing party, upon two 
 days' notice to the other, the sum of the charges for costs as above 
 provided, and the necessary disbursements and/ees of officers allowed 
 ly law, including the compensation of referees and the expense of 
 printing the papers upon any appeal. The disbursements shall be 
 stated in detail and verified by aflfidavit, which shall be filed. 
 
 § 311. (As am'd in 1857.) The clerk shall insert in the entry of 
 judgment, on the application of the prevailing party, upon^e days' 
 notice to the other, except when the attorneys reside in the same dty, 
 village or town, and tJien upon two days' notice, the sum of the allow- 
 ances for costs as provided by this code, the necessary disbursements, 
 including the fees of officers allowed by law, the fees of vyitnesaes, the 
 reasonable compensation of commismners in taking depositions, the fees 
 of referees, and the expense of printing the papers for any hewring 
 when required by a rule of the court. The disbursements shall be 
 stated in detail, and verified by affidavit. A copy of the items of the 
 costs and disbursements shaU be served with a notice of adjustment. 
 
 § 31 1. (As am'd in 1862..) The clerk shall insert in the entiy of 
 judgment, on the application of the prevailing party, upon five 
 days' notice to the other, except when the attorneys reside in the 
 same city, village or town, and then upon two days' notice, the 
 sum of the allowances for costs as provided by this code, the neces- 
 
228 CODE OF PEOCEDUEE. [§ 312-314. 
 
 sary disbursements, including tlie fees of ofllcers allowed by law, 
 tlie fees of witnesses, tbe reasonable compensation of commissioners 
 in taking depositions, the fees of referees, and the expense of print- 
 ing the papers for any hearing when required by a rule of the court. 
 The disbursements shall be stated in detail, and Terified by affidavit. 
 A copy of the items of the costs and disbursements shall be served 
 with a notice of adjustment. 
 
 Whenever it slwM be neeessa/ry to ac0ust costs in any interlocutory 
 proceeding in an action, or in any special proceedings, the same shaU 
 be adjiLsted by the fudge before whom the sams may be hewrd, or the 
 cowrt before which the saime miOjy be decided or pending, or in such otheir 
 manner as (he judge or cowt may direct. 
 
 % 313. (Being § 267 of 1848.) The clerk shall receive. 
 
 On every trial, from thg party bringing it on, one dollar ; on en- 
 tering judgment, one dollar. 
 
 He shall receive no other fee for any service whatever in a civil 
 action, except for copies of papers at the rate of five cents for every 
 hundred words. 
 
 In addition to the above charges, the clerk of the superior court 
 of the city of New York, and the clerk of the court of common 
 pleas for the city and county of New York, shall receive for the use 
 of the city of New York, to the credit of the fund for the payment 
 of those clerks, one dollar for the entry of every judgment, in place 
 of the fees now charged for services of the judges of these courts at 
 chambers. 
 
 (Am'd in 1849.) 
 
 312. (As am'd in 1849.) The clerk shall receive, 
 
 On every trial, from the party bringing it on, one dollar ; on enter- 
 ing a judgment by filing transcript, six cents. 
 
 On entering judgment, fifty cents; except in courts where the 
 clerks are salaried officers, and in such courts one dollar. 
 
 He shall receive no other fee for any services whatever in a civil 
 action, except for copies of papers, at the rate of five cents for every 
 hundred words. 
 
 § 313. (Being§368 of 1848.) The fees of referees shall be three dol- 
 lars to each for every day spent in the business of tiie reference; but 
 the parties may agree in Writing upon any other rate of Compensation. 
 
 § 314. (Bemg § 369 of 1848.) When an application shall be 
 made, to a court or referees, to postpone a trial, the payment to the 
 
§§ 315-317.] CODE OP PKOCBDUEE. 229 
 
 adverse party of a sum not exceeding ten dollars, besides the fees of 
 witnesses, may be imposed, as the condition of granting the post- 
 ponement. ' 
 
 § 315. (Being § 370 of 1848.) No costs shall he allowed on a mo- 
 tion except the costs of resisting, in the discretion of the court, not 
 exceeding ten dollare. 
 
 (Am'd in 1849 and 1857.> 
 
 § 315. (As am'd in 1849.) Costs moj) be allowed on a motion, in 
 the discretion of the court, not exceeding ten dollars. 
 
 § 315. (As am'd in 1857.) Costs rday be allowed on a motion, in 
 the discretion of the court or judge, not exceeding ten dollars, avd 
 may he absolute or directed to abide the enent of the aetion. 
 
 § 316. (Added in 1849.) When costs are adjudged against an 
 infant plaintiff, the guardian by whom he appeared in the action 
 shall be responsible therefor, and payment thereof may be enforced 
 by attachment. 
 
 §317. (Added in 1849.) In an action prosecuted or defended by 
 an executor, administrator, trustee of an express trust, or a person 
 expressly authorized by statute, costs shall be recovered, as in an 
 action by and against a person prosecuting or defending in his own 
 right, but such costs shall be chargeable only upon, or collected of, 
 the estate, fund or party represented, unless the court shall direct 
 the same to be paid by the plaintiff or defendant, personally, for 
 mismanagement or bad faith in such action or defense. But this 
 section shall not be construed to allow costs against executors or 
 administrators. Where they are now exempted therefrom, by section 
 41 of title 3, chapter 6 of the second part of the revised statutes. 
 
 (Am'd in 1851 and 1853.) 
 
 § 317. (As am'd in 1851.) Same as § 317, as passed in 1849, except 
 ihat the following words were added at the end thereof: " and 
 whenever any claim against a deceased person shall be referred 
 pursuant to the provisions of the revised statutes, the prevailing 
 party shall be entitled to recover the fees of referees and witnesses, 
 and other necessary disbursements, to be taxed according to law." 
 20 
 
230 CODE OP PEOCEDUBE. [§§ 317-319. 
 
 § 317. (As am'd in 1852.) In an action prosecuted or defended 
 by an executor, administrator, trustee of an express trust, or a per. 
 son expressly authorized by statute, costs shall be recovered, as in 
 an action by and against a person prosecutiag or defending in his 
 own right, but such costs shall be chargeable only upon, or col- 
 lected of, the estate, fund or party represented, unless the court 
 shall direct the same to be paid by the plaintiff or defendant, per- 
 sonally, for mismanagement or bad faith in such action or defense. 
 But this section shall not be construed to allow costs against execu- 
 tors or administrators, where they are now exempted therefrom, 
 by section 41 of title 3, chapter 6 of the second part of the revised 
 statutes ; and whenever any claim against a deceased person shall 
 ,be referred piu:suant to the provisions of the revised statutes, the 
 prevailing party shall be entitled to recover the fees of referees and 
 witnesses and other necessary disbursements, to be taxed according 
 to law. And the court may, in its discretion, in the cases mentioned in 
 this section, require the plaintiff to giw aeewrity for costs. 
 
 % 318. (Added in 1849.) When the decision of a court of inferior 
 jurisdiction in a special proceeding, shall be brought before the 
 supreme court for review, such proceeding shall, for all purposes of 
 costs, be deemed an action at issue on a question of law, from the 
 time the same shall be brought into the supreme court, and costs 
 thereon shall be awarded and collected in such manner as the 
 court shall direct, according to the nature of the case. 
 
 (Am'd in 1863.) 
 
 § 318. (As am'd in 1862.) When the decision of a court of infe- 
 rior jurisdiction in a special proceeding, in/UvMng atppeah from sur- 
 rogates^ cowrts, shall be brought before the supreme court for review, 
 such proceedings shall, for all purposes of costs, be deemed an ac- 
 tion at issue on a question of law, from the time the same shall be 
 brought into the supreme court, and costs thereon shall be awarded 
 and collected in such manner as the court shall direct, according t» 
 the nature of the case. 
 
 § 319. (Added in 1849.) In all civil actions prosecuted in the 
 name of the people of this State, by an officer duly authorized for 
 that purpose, the people shall be liable for costs in the same cases, 
 and to the same extent, as private parties. If a private person be 
 
§§ 320-322.] CODB OF PEOCEDTJEE. 231 
 
 joined wiih the people as plaintiff, he shall he liable in the first 
 instance for the defendant's costs, which shall not he recovered 
 of the people till after execution issued therefor against such private 
 party and returned unsatisfied. 
 
 § 320. (Added in 1849.) In an action prosecuted in the name of 
 the people of this State, for the recovery of money or property, or 
 to establish a right or claim, for the benefit of any county, cityi 
 town, village corporation, or person, costs awarded against the 
 plaintiff shall be a charge against the party for whose benefit the 
 action was prosecuted, and not against the people. 
 
 § 321. (Added in 1849.) In actions, in which the cause of action 
 shall, by assignment after the commencement of the action, or in 
 any other manner, become the property of a person not a party 
 to the action, such person shall be liable for the costs, in the same 
 manner as if he were a party, and payment thereof may be enforced 
 by attachment. 
 
 § 322. (Added in 1849.) Upon the setflement, before judgment, 
 of any action mentioned in section 304, no greater sum shall be 
 demanded from the defendant as costs, than at the rates prescribed 
 by that section. 
 
232 CODE OP PBOCEDUEB. [§| 323, 324. 
 
 TITLE XL 
 
 Of Appeals in 0ml AeUoni.* 
 
 Chaptbk I. Appeals in general. 
 
 n. Appeals to the court of appeals. 
 m. Appeals to the supreme court from an inferior court, 
 rv". Appeals in the supreme court and the superior court, and the court 
 of common pleas of the city of New York, from a single judge to 
 the general term. 
 V. Appeal to the court of common pleas for the city and county of 
 New York, or to a county court, from an inferior court. 
 
 CHAPTER I. 
 
 Appeals in General. 
 
 Section 323. Writs of error abolished, and appeals substituted. 
 
 324. Orders made out of court, how vacated or modified. 
 
 325. Who may appeal. 
 
 326. Parties, how designated on appeal. 
 
 327. Appeal, how made. 
 
 328. Clerk to transmit papers to appellate court. 
 
 329. Intermediate orders affecting the judgment, may beTevlewed on 
 
 the appeal. 
 
 330. Judgment on appeal. 
 
 331. Certain appeals to he within two years. 
 
 332. Other appeals within thirty days. 
 
 § 333. (Being § 271 of 1848.) Writs ot error and appeals in ci-vil 
 actions, as they have heretofore existed, are abolished, and the only 
 mode of reviewing a judgment or order in a civU action shall be 
 that prescribed by this title. 
 
 (Am'd in 1849.) 
 
 § 323. (As am'd in 1849.) "Writs of error in civil actions, as they 
 have heretofore existed, are abolished, and the only mode of review- 
 ing a judgment or order m a civil action shall be that prescribed by 
 this title. 
 
 § 324. (Being § 273 of 1848.) An order made out of court, with- 
 out notice to the adverse party, may be vacated or modified, without 
 notice, by the judge who made it, or may be vacated or modified, on 
 notice, in the manner in which other motions are made. 
 
 • As to appeals in special proceedings, see ch. 270 of 1854. Sections 327, 329, 
 330 and 332 of the code are applied to appeals in such proceedings by § 2 of 
 that act. 
 
§§ 325-328.] CODB OF PEOCEDUBE. 233 
 
 § 325. (Being § 373 of 1848.) Any party aggrieved may appeal 
 in the caees prescribed in this title. . 
 
 § 326. (Being § 374 of 1848.) The party appealing shall be 
 known as the appellant, and the adverse party as the respondent. 
 But the title of the action shall not be changed in consequence of 
 the appeaL 
 
 § 337. (Being § 275 of 1848.) An appeal must be made by the 
 service of a notice in writing on the adverse party, and on the 
 clerk with whom the judgment or order appealed from is entered, 
 stating the appeal from the same, or some specified part thereof. 
 
 (Am'd in 1849.) 
 
 § 327. (As am'd in 1849.) The appeal must be made by the ser- 
 vice of a notice in writing on the adverse party, and on the clerk 
 with whom the judgment or order appealed from is entered, stating 
 the appeal from the same or some specified part thereof. When a 
 party shall give, in good faith, notice of appeal from a judgment or 
 order, and shaU omit, through mistake, to do any other act necessary to 
 perfect the appeal or to stay proceedings, the court maype/rmit an a/mend- 
 ment on such terms as may be just. 
 
 % 328. (Being § 276 of 1848.) Upon the appeal allowed by the 
 second and third chapters of this title, being perfected, the clerk, 
 with whom the notice of appeal is filed, shall, at the expense of the 
 appellant, forthwith transmit to the appellate court a certified copy 
 of the notice of appeal and of the judgment roU. 
 
 (Am'd in 1858 and 1863.) 
 
 § 328. (As am'd in 1858.) Same as in 1848, except that the follow- 
 ing words were added at the end thereof : 
 
 " Or, if the appeal be from an order or any part thereof, a certi- 
 fied copy of such order and of the papers upon which the order 
 was granted." 
 
 § 328. (As am'd in 1868.) If the appellant shall not, within 
 twenty days after his appeal is perfected, cause a certified copy of 
 the notice of appeal and of the judgment roU, or, if the appeal be 
 from an order or any part thereof, a certified copy of such order and 
 the papers upon which the order was granted, to be' transmitted to 
 the appellate court by the clerk with whom the notice of appeal 
 is filed, the respondent may cause such certified copy to be trans- 
 20* 
 
234 CODE OP PEOCEDUEE. [§§ 329-331, 
 
 mitted by such clerk to the appellate court, and recover the 
 expenses thereof as a disbursement on such appeal, in case the 
 judgment or order appealed from shall be in whole or in part 
 aflirmed, and this provision shall apply to all appeals heretofore 
 taken where the appeal has not been dismissed in the maimer pro- 
 vided by the rules of the appellate court. 
 
 § 329. (Being § 277 of 1848.) Upon an appeal from a judgment, 
 the court may review any intermediate order, involving the merits, 
 and necessarily affecting the judgment. 
 
 § 330. (Bemg § 278 of 1848.) Upon an appeal from a judgment 
 or order, the appellate court may reverse, afiSnu or modify the 
 judgment or order appealed from in the respect mentioned in the 
 notice of appeal and may, if necessary or proper, order a new trial. 
 
 (Am'd m 1849.) 
 
 § 330. (As am'd in 1849.) Upon an appeal from a judgment or 
 order, the appellate court may reverse, affirm or modify the judg- 
 ment or order appealed from in the respect mentioned in the notice 
 of appeal, amd a» to any or all of flie parties, and may, if necessary 
 or proper, order a new trial. When the judgment is reversed or modi- 
 fied, the afppeHate court ma/y make complete restitution of aU property 
 and rights lost by the erroneous judgm^mt. 
 
 § 331. (Being § 279 of 1848.) The appeal allowed by the second 
 and third chapters of this title must be taken within two years after 
 the judgment. 
 
 (Am'd in 1857 and 1858.) 
 
 § 331. (As am'd in 1857.) The appeal allowed by the second and 
 third chapters of this title must be taken within two years after the 
 judgment shall ie perfected, by jUing the roll thereof, and entering the 
 same in the judgment book in the proper devTis office. 
 
 § 331 . (As am'd in 1858.) The a/ppeal to the court of appeals, under 
 subdi/cmon 2 of section 11, of this code, must be taken within sixty days 
 after written notice of the order shaU hose been given to the party 
 aippeaM/ng ; every other appeal allowed by the second and third chap- 
 ters of this title must be taken within two years after the judg- 
 ment shall be perfected, by filing the judgment roU. 
 
§§ 332, 333.] CODE OF PBOCEDUEE. 235 
 
 § 333. (Being § 380 of 1848.) The appeal allowed by the fourth 
 chapter of this title must be taken, within ten days after ■written 
 notice of the judgment or order shall have been given to the party 
 appealing. 
 
 (Am'd in 1849.) 
 
 § 332. (As am'd in 1849.) The appeal allowed by the fourth 
 chapter of this title must be taken, within thirty days after written 
 notice of the judgment or order shall have been given to the party 
 appealing. 
 
 (I 281 of 1848— omitted in 1849. The appellant shall furnish the 
 court with copies of the notice of appeal, and of the order or judg- 
 ment roll. If he fail to do so, the appeal shall be dismissed, unless 
 the court shall otherwise direct.) 
 
 CHAPTER n. 
 AppeaU to the Court of Appeals. 
 
 Sbotion 333. In what cases. 
 
 334. On any appeal eecnrity must be given to pay costs and damages, 
 
 not exceeding $250, or deposit made, unless waived. 
 
 335. On judgment for money, security to stay execution. 
 
 336. K judgment be to deliver documents, tbey must be deposited. 
 
 337. If to execute conveyance, it ifiust be executed and deposited. 
 
 338. Security where judgment is to deliver property, for a sale of mort- 
 
 gaged premises, 
 
 339. Stay of proceedings upon security given. 
 
 340. UndertakingB may be in one instrument or several. 
 
 341. Security to be approved and to justify. 
 
 342. Perishable property may be sold notwithstanding appeal. 
 
 343. Undertaking mast be filed. 
 
 § 333. (Bemg § 283 of 184S.) An appeal may be taken to the 
 court of appeals in the cases mentioned in section 11. 
 (Am'd in 1857.) 
 
 § 333. (As am'd in 1857.) An appeal may be taken to the court 
 of appeals in the cases mentioned in section 11. yfhen any of the 
 courts mentioned therein sTtaU, atge/neraJ, term, render jiidgmenl upon 
 a verdict taken suJgect to the opinion of the court, the guestions or con- 
 tusions of la/u>, together viith a con/rise statement of the facts upon 
 which they a/rose, shdH be prepared by and under the directum of the 
 court, and shaJl be fUed with the judgment roU, amd be deemed a part 
 thereof, for the purposes of a review in the court of appeals. The pro- 
 
236 CODE OP PEOCEDtTEE. [§§ 334, 335. 
 
 •miom of ihe last pretxcLing sedion sTudl apply to any judgment iherdn 
 mentioned that has been heretofore rendered, and upon which an appeal 
 Ivas been brought and is now pending, or upon which an appeal shaM 
 hereafter be brought. When the return has already been filed with the 
 cierk of the court of appeals, such statement shall be Med with him, and 
 be deemed a part of such return. 
 
 §334. (Being §283 of 1848.) To render an appeal eSfectual tor 
 any purpose, a •written undertaking must be executed on the part 
 of the appellant, by at least two sureties, to the effect that the appel- 
 lant will pay all costs and damages which may be awarded against 
 him on the appeal, not exceeding two hundred and fifty dollars, or 
 that sum must be deposited with the clerk with whom the judgment 
 or order was entered, to abide the event of the appeal. Such un- 
 dertaking or deposit may be waived by a written consent on the 
 part of the respondent. 
 
 (Am'd in 1865.) 
 
 § 334. (As am'd in 1865.) To render an appeal effectual for any 
 purpose, a written undertaking must be executed on the part of the 
 appellant by at least two sureties, to the effect that the appellant 
 will pay all costs and damages which may be awarded against him 
 on the appeal, not exceeding fim hundred, dollars, or that sum must 
 be deposited with the clerk with whom the judgment or order was 
 entered, to abide the event of the appeal. Such undertaking or 
 deposit may be waived by a written consent on the part of the 
 respondent. 
 
 § 335. (Being § 384 of 1848.) If the appeal be from a judgment 
 directing the payment of money, it shall not stay the execution of 
 the judgment, unless a written imdertaking be executed on the part 
 of the appellant, by at least two sureties; to the effect that, if the 
 judgment appealed from, or any part thereof, be afSrmed, the 
 appellant will pay the amount directed to be paid by the judgment, 
 or the part of such amount as to which the judgment shaU be 
 affirmed, if it be affirmed only in part, and all damages which 
 shall be awarded against the appellant upon the appeal. 
 
 (Am'd in 1859, 1862 and 1863.) 
 
 § 335. <As am'd in 1859.) Same as in 1848, except that the follow 
 ing words were added at the end thereof : 
 
§ 335.] CODE OF PEOCEDUEK. 237 
 
 " Whenever it shall be made satisfactorily to appear to the court 
 that, since the execution of the undertaking, the sureties have he- 
 come insolvent, the court may, by rule or order, require the appel- 
 lant to execute, file and serve a new undertaking as above ; and, in 
 case of neglect to execute such undertaking within twenty days 
 after the service of a copy of the rule or order requiring such new 
 undertaking, the appeal may, on motion to the court, be dismissed, 
 with costs." 
 
 § 385. (As am'd in 1862.) Same as § 385, as amended in 1859, ex- 
 cept that the words " or dimdased" were inserted after the words 
 " be affirmed," where they first occur in that section. 
 
 § S35. (As am'd in 1868.) If the appeal be from a judgment 
 directing the payment of money, it shall not stay the execu- 
 tion of the judgment, unless a written undertaking be executed 
 on the part of the appellant, by at least two sureties, to the 
 effect that, if the judgment - appealed from, or any part thereof, 
 be affirmed, or the appeal be dismissed, the appellant will pay the 
 amount directed to be paid by the judgment, or the part of such 
 amount as to which the judgment shall be affirmed, if it be affirmed 
 only in part, and all damages which shall be awarded against the 
 appellant upon the appeal. Whenever it shall be made satisfactorily 
 to appear to the court that since the execution of the undertaking 
 the sureties have become insolvent, the court may, by rule or order, 
 require the appellant to execute, file and serve a new undertaking 
 as above; and, in case of neglect to execute such undertaking within 
 twenty days after the service of a copy of the rule or order requir- 
 ing such new undertaking, the appeal may, on motion to the court, 
 be dismissed, with costs. WJienever it shall ie necessary for a pa/rty 
 to any action or proceeding to give a iond or an undertaMug, vyith 
 surety or sureties. Tie may, in lieu thereof, deposit with the officer or 
 into court, as the case may require, m/mey, to the aTnount for which, 
 S!mh Ixmd or undertaMng is to be given. The court in which mjuih 
 action or proceeding is pending may direct what disposition shaU be 
 made cf such Tnoney pending the action or proceeding. In any case 
 where, by this section, the money is to be deposited vyith an officer, a judge 
 of the court, at special term or at chambers, upon the application of 
 either party, may, before such deposit is made, order it to be deposited 
 in court instead of with such officer; and a deposit made pursuant to 
 such order shaU be of the same effect as if made with such officer. 
 
238 CODE OF PEOCEDUEB. [§§336-338, 
 
 § 336. (Being § 385 of 1848.) If the judgment appealed from 
 direct the assignment or delivery of documents, or personal prop- 
 erty, the execution of the judgment shall not he stayed hy appeal 
 iftiless tl)e things required to he assigned or delivered be brought 
 into court or placed in the custody of such officer or receiver as the 
 court shall appoint, or unless an undertaking be entered into, on 
 the part of the appellant, hy at least two sureties, and in such 
 amount as the court shall direct, to the effect that the appellant will 
 obey the order of the appellate court, upon the appeal. 
 
 (Am'd in 1849.) 
 
 § SS6. (As am'd in 1849.) If the judgment appealed from direct 
 the assignment or delivery of documents, or personal property, the 
 execution of the judgment shall not be stayed by appeal unless the 
 things required to be assigned or delivered be brought into court, 
 or placed in the custody of such officer or receiver as the court 
 shall appoint, or unless an undertaking be entered into, on the part 
 of the appellant, by at least two sureties, and in such amount as 
 the court, or a jvdge thereof, or anmiy judge, shall direct, to the 
 effect that the appellant will obey the order of the appellate court, 
 upon the appeal. 
 
 § S37. (Being § 386 of 1848.) If the judgment appealed from 
 direct the execution of a conveyance or other instrument, the exe- 
 .cution of the judgment shall not be stayed by the appeal, until the 
 instrument shall have been executed and deposited with the clerk 
 with whom the judgrhent is entered, to abide the judgment of the 
 appellate court. 
 
 § 338. (Bemg § 387 of 1848.) If the judgment appealed from 
 direct the sale or delivery of possession of real property, the execu- 
 tion of the same shall not be stayed imless a written undertaking 
 be executed on the part of the appellant, with two sureties, to the 
 effect that, during the possession of such property by the appellant, 
 he will not commit, or suffer to be committed, any waste thereon, 
 and that, if the judgment be affirmed, he will pay the value of the 
 use and occupation of the property, from the time of tlie appeal 
 until the delivery of possession thereof, pursuant to the judgment, 
 not exceeding a sum to be fixed by a judge of the court by which 
 judgment was rendered, and which shall be specified in the under- 
 
§§ 339, 340.] CODE OF PEOCEDUBE. 289 
 
 taking. ■When the judgment is for the sale of mortgaged premises, 
 and the payment of a deficiency arising upon the sale, the \mder- 
 taMng shall also provide for the payment of such deficiency. 
 
 § 339. (Being § 288 of 1848.) Whenever an appeal shall be per- 
 fected as provided by sections 384, 385, 286 and 387, it shall stay all 
 further proceedings in the court below, upon the judgment appealed 
 from or upon the matter embraced therein ; but the court below 
 may proceed upon any other matter included in the action, and 
 not affected by the judgment appealed from. 
 
 (Am'd m 1849 and 1851.) 
 
 § 389. (As am'd in 1849.) Whenever an appeal shall be perfected 
 as provided by sections 335, 336, 337 and 338, it shall stay aU further 
 proceedings in the court below, upon the judgment appealed from 
 or upon the matter embraced therein; but the court below may 
 proceed upon any other matter included in the action, and not 
 affected by the judgment appealed from. 
 
 I 339. (As am'd in 1851.) Whenever an appeal is perfected as 
 provided by sections 335, 336, 337 and 338, it stays all further pro- 
 ceedings in the court below, upon the judgment appealed from or 
 upon the matter embraced therein ; but the court below may pro- 
 ceed upon any other matter included in the action, and not affected 
 by the judgment appealed from. And the amrt Mow may, in its 
 discretion, dispense with or limit the security required ly sections 335, 
 336 and 338, when the appeUant is an execnitor, administrator, trustee, 
 or other person actiti^ in another's right; and may also limit such 
 securily to an a/inount not less than fifty thousand doUars, in the cases 
 mentioned in sections 336, 337, 338, wh^e it would otherwise, according 
 to those sections, exceed that sum. 
 
 § 340. (Being § 289 of 1848.) The undertakings prescribed by sec- 
 tions 283, 284, 285 and 387, may be in one instrument or several, at 
 the option of the appellant. 
 
 (Am'd in 1849.) 
 
 § 340. (As am'd in 1849.) The undertakings prescribed by sections 
 334, 335, 336 and 338, may be in one instrument or several, at the 
 option of the appellant ; and a copy, including the names and resi- 
 
240 , CODE OP PEOCEDtTEE. [§§341,342. 
 
 denee of the sureties, must be served on the adoerse pa/rty, with the notice 
 of appeal, unless a deposit is made as provided in section 334, and notice 
 thereof givt 
 
 § 341. (Being § 290 of 1848.) An undertaking upon an appeal 
 shall be of no effect, unless it be approved, in the first instance, by 
 a judge of the court below, or a county judge. The respondent 
 may, however, except to the sufficiency of the sureties, within ten 
 days after the notice of the appeal ; and, unless they or other 
 sureties justify before a judge of the court below, or a county judge, 
 as presmbed by sections 170 and 171, within ten days thereafter, 
 the appeal shall be regarded as it no undertaking had been given. 
 The justification shall be upon a notice of not less than five days. 
 The sureties must have the same qualifications as baU, pursuant to 
 section 169. 
 
 (Am'd in 1849.) 
 
 §341, (As am'd m 1849.) An undertaking upon an appeal shall be 
 of no effect, unless it be accompanied by the affidavit of the sureties, that 
 they aire each worth double the ammint specified therem. The respondent 
 may, however, except to the sufficiency of the sureties, within 
 ten days after notice of the appeal; and unless they or other 
 sureties justify before a judge of the court below or a county judge, 
 as prescribed by sections 195 amd 196, within ten days ther^fter, 
 the appeal shall be regarded as if no undertaking had been given. 
 The justification shall be upon a notice of not less than five days. 
 
 § 342. (Being § 291 of 1848.) In the cases not provided for in 
 sections 284, 285, 286, 287 and 288, the perfecting of an appeal, by 
 giving the undertaking mentioned in section 283, shall stay pro- 
 ceedings in the court below, upon the judgment appealed from 
 except that, where it directs the sale of perishable property, the 
 court below may order the property to be sold, and the proceeds 
 thereof to be deposited or invested, to abide the judgment of the 
 appellate court. 
 
 (Am'd in 1849.) 
 
 § 342. (As am'd in 1849.) In the cases not provided for in sections 
 335, 336, 337, 338 amd 339, the perfecting of an appeal, by giving the 
 undertaking mentioned in section 334, shall stay proceedings in the 
 
§§ 343, 344.] CODE OF PKOCEDUEE. 241 
 
 court below, upon thfe jtidgmeiit appealed from, except that, where 
 it directs the sale of perishable property, the court below may order 
 the property to be sold, and the proceeds thereof to be deposited or 
 invested, to abide the judgment of the appellate court. 
 
 § 343. (Being § 393 of 1848.) The imdertaking must be filed with 
 the clerk with whom the judgment or order appesded from was 
 entered. 
 
 (Am'd in 1866.) , 
 
 § 343. (As am'd in 1866.) The undertaking must oe filed with 
 the clerk with whom the judgment or order appealed from was 
 entered. TJie prvmiona of tlm chapter, a»ta fhe iecwrUy to be ffivea 
 upon appeals, and a^ to (he stay of proceedings, shaU apply to appeals 
 taken under suMivision 3 of section 11. 
 
 CHAPTER m. 
 Appetd to the Supreme Court from an Inferior Court. 
 
 SKCTION344. In what cases. 
 
 345. Security must be given las npon appeal to the conrt of appeals. 
 
 346. Appeal, where heu^. 
 
 347. Jaagment on appeal, where entered and docketed. 
 
 § 344. (Being § 393 of 1848.) An appeal may be taken to the 
 supreme court from the judgment rendered by a county court or 
 by the mayor's court of either of the cities of Albany, Hudson, Troy 
 and Rochester, or by the recorders' court of either of the cities of 
 Buffalo and Utica. 
 <Am'4 in 1849, 1858 and I860.) 
 
 § 344 (As am'd in 1849.) An appeal may be taken to the supreme 
 court, from the judgment rendered by a county court or by the 
 mayors' courts, or the recorders' courta of cities. 
 
 Bat no appeal shaU ie aUowed from a ji^gmmt of Orcounty eowrt, 
 in a case arising in a justieeif court, unless thepa/rty desiring to appecd 
 sltdU, within thirty days ctfter notice of the judgment, present to a 
 judge of the supreme court the return cf the justice, or a copy thereof, 
 viith the decision of the county court, and obtain from such judge a cer- 
 tifcate that he has examined the case, and in his opinion an appeal to 
 the supreme court shmHi be aUowed. 
 21 
 
242 CODE or PEOCEDUEE. [§§ 344-347. 
 
 § 344. (As am'd in 1858.) An appeal may be taken to the supreme 
 court, from the judgment rendered by a county court or by the 
 mayors' courts, or the recorders' courts of cities. 
 
 § 344. (As am'd in 1860.) An appeal maybe taken to the supreme 
 court, from the judgment rendered by a county court or by the 
 mayors' courts, or the recorders' courts of cities. 
 
 An appecU may cdso be taken to the nipreme cov/rt from any order 
 affecting a mhatwntial right, made hy a county court or a county judge, 
 in any action or proceeding, and such a/ppeal shad he hea/rd on a copy 
 of the pa/pers on which the order appeaJM from was m,ade. 
 
 § 345. '(Being § 294 of 1848.) Security must be given upon such 
 appeal in the same manner, and to the same extent, as upon an 
 appeal to the court of appeals. 
 
 § 346. (Being § 395 of 1848.) Appeals in the supreme court shall 
 be heard at a general term, either in the district embracing the 
 county where the judgment or order appealed from was entered, 
 or in a county adjoining that county, except that, where the judg- 
 ment or order was entered in the city and county of New York, the 
 appeal shall be heard in the first district. 
 
 § 347. (Being § 296 of 1848.) When the appeal is heard in a county 
 other than that where the judgment roll is filed, the judgment upon 
 the appeal shall be certified to the clerk with whom the roll is filed, 
 to be there entered and docketed. 
 
 (Am'd in 1849.) 
 
 § 347. (As am'd in 1849.) Jtidgment upon fhe appeal thaU le 
 entered amd docketed with the ehrh in whose office the judgment roU is 
 JUed. When the appeal is heard ia a county other than that where 
 the judgment roll is filed, or is not from a judgment of a county court, 
 the judgment upon the appeal shall be certified to the clerk with 
 whom the roll is filed, to be there entered and docketed. 
 
§ 343.] CODE OP PEOCBD0KE. 243 
 
 CHAPTER IV. 
 
 Appeals in the Supreme 0<rwH, and the Bwperwr Cov/rt and Court of 
 Cormrum Pleas of the exty of New York, from, a single judge to the 
 Oeneral Term. 
 
 Sbctioh 348. Appeals from circuits and special terms to same conrt in general 
 term ; security on appeal. 
 
 349. Orders by a sins^le judge may he appealed from in certain cases. 
 
 350. Orders at chambers, to be entered before appeal. 
 
 § 348. (Being § 297 of 1848.) In the supreme court, the superior 
 court of the city of New York, and the court of common pleas for 
 the city and county of New York, an appeal, upon either the law or 
 the fact, may be taken to the general term, from a judgment entered 
 upon the direction of a single judge of the same court. 
 
 Security must be given upon such appeal in the same manner as 
 upon an appeal to the court of appeals. In the supreme court the 
 appeal shall be heard in the same manner as if it were an appeal 
 from an inferior court. 
 
 (Am'd in 1849, 1851, 1852, 1859 and 1862.) 
 
 § 348. (As am'd in 1849.) In the supreme court, the superior court 
 of the city of New York, and the court of common pleas for the 
 city and county of New York, an appeal, upon the lam, may be 
 taken to the general term, from a judgment entered upon the 
 direction of a single judge of the same court. Security must be 
 giren upon such appeal in the same manner as upon an appeal to 
 the court of appeals. In the supreme court the appeal shall be 
 heard in the same manner as if it were an appeal from an inferior 
 court. 
 
 § 348. (As am'd in 1851.) In the supreme court, the superior 
 court of the city of New York, and the court of common pleas for 
 the city and county of New York, an appeal may be taken to the 
 general term, from a judgment entered upon the report of the referees 
 or the direction of a single judge of the same court, in aU cases. Such 
 an appeal, howewr, does not stay ths proceedings, unless the court, or a 
 judge thereof, so order, which order may be made upon such terms, as 
 to security or otherwise, as may ie just, such secmity not to exceed the 
 amount required on an appeal to the court of appeals. In the supreme- 
 court the appeal must be heard in the same manner as if it were ac 
 appeal from an inferior court. 
 
244 CODE OF PEOCEDUEK. X§ ^*^' 
 
 § 348. (As am'd in 1852.) In the supreme court, the superior 
 court of the city of New. York, and the court of common pleas 
 for the city and county of New York, an appeal, upon the law, 
 may be taken to the general term from a judgment entered upon 
 the report of referees or the direction of a single judge of the same 
 court, in all cases, and vpon tTiefact when the trial iabythe amrt or 
 referees: Such an appeal, however, does not stay the proceedings, 
 unless security be given, as upon an appeal to the court of appeals, or 
 unless the court, or a judge thereof, so order, which order may be 
 made upon such terms, as to security or otherwise, as may be just, 
 such security not to exceed the amount required on an appeal to 
 the court of appeals. In the supreme court the appeal must be 
 heard in the same manner as if it were an appeal from an inferior 
 court. 
 
 § 348. (As am'd in 1859.) Same as § 348, as amended in 1853, ex- 
 cept that the words " <md m,ch aeaurity be renewed as in eases 
 required by section 335, on motion to the court at special term," were 
 inserted after the words " court of appeals," where they first appear 
 in said section. 
 
 § 348. (As am'd in 1863.) In the supreme court, the superior court 
 of the city of New York, and the court of common pleas for the 
 city and county of New York, an appeal, upon the law, may be 
 taken to the general term from a judgment entered upon the report 
 of referees or the direction of a single judge of the same court 
 in all cases, and upon the fact when the trial is by the court or 
 referees. Such an appeal, however, does not stay the proceedings, 
 unless security be given, as upon an appeal to the court of appeals, 
 and such security b^ renewed as in cases required by section 335, on 
 motion to the court at special term, or unless the court, or a judge 
 thereof, so order, which order may be made upon such terms, as to 
 security or, otherwise, as may be just, such security not to exceed 
 the amount required on an appeal to the court of appeals. In, the 
 supreme court the appeal must be heard in the same manner as if 
 it were an appeal from an inferior court. 
 
 No action shcM be commenced upon any undertaking gieen or to be 
 giv^ in pursuance of the proviaions of this section, untU ten days after 
 the service of notice on the admrse party of the entry of the order or 
 judgment affiirmimg the jutlffment appealed from. And, in case an 
 
§ 349.] CODE OF PEOOEDUEE. 245 
 
 appeal has ieen or sJiaU be taken to the court of appeals fimn such order 
 or judgment of affirmance, and seoarity given according to law so as to 
 stay the issuing of executions, no action shaM be commenced or recovery 
 had upon any imdeHaking given or to be given in pursuance ofihepro- 
 msions of this section untU afteir the final determinaiioncfsuch ojppeoH. 
 
 (§ 298 of 1848. — Omitted in 1849. Upon such appeal the decision 
 upon the facts shall be final.) 
 
 § 349. (Being § 299 of 1848.) An appeal may, in like maimer, and 
 -within the same time, be taken from an order made by a single 
 judge of the same court, and may be thereupon reviewed in the 
 following cases : 
 
 1. When the order grants or refuses a provisional remedy. 
 
 2. When it involves the merit of the action, or some part thereof. 
 But no appeal under this section shall be taken, unless a judge of 
 
 the same court certify that, in his opinion, it is proper that the 
 question arising on the appeal should be decided before the 
 judgment. 
 (Am'd in 1849, 1851, 1852, 1862.) 
 
 § 349. (As am'd in 1849.) An appeal may, in like manner, and 
 within the same time, be taken from an order made by a single 
 judge of the same court, and may be thereupon reviewed in the fol- 
 lowing cases : 
 
 1. When the order grants or refuses a provisional remedy. 
 
 2. When it involves the merits of the action, or some part thereof. 
 
 3. When the order decides a question of practice, vMeh, in effect, 
 determines the action without a trial, or precludes an a/ppeal. 
 
 4. When the order is made upon a mimmmy application in an 
 action after judgment amd affects a substantial right. 
 
 § 349. (As am'd in 1851.) An appeal may, in like manner, and 
 within the same time, be taken from an order made at a special term, 
 or by a single judge of the same court, or a county, or a special county 
 judge, in any stage of the action, including proceedings supplement- 
 a/ry to the execution, and may be thereupon reviewed in the following 
 cases: 
 
 ■ 1. When the order grants or refuses a provisional remedy, or 
 grants, re/uses or dissohes an injunction. 
 21* 
 
246 CODB OF PBOCBDUEB. [§§ 349, 350. 
 
 2. WJien it promts or refuses a new trial, or when it sustatns or 
 owrrules a demurrer. 
 
 3. When it involves the merits of the action, or some pait thereof. 
 
 4. When the order in effect determines the action cmd prevents a 
 jiidgment from which an appeal may be taken. 
 
 5. When the order is made upon a summary application in an 
 action after judgment, and affects a substantial right. 
 
 § 349. (As am'd in 1853.) Same as § 349, as amended in 1851, ex- 
 cept in subdivisions 1 and 3, which were respectively amended to 
 read as follows : 
 
 1. When the order grants or refuses, continues or modifies, a pro- 
 visional remedy. 
 
 3. When it involves the merits of the action, or some part thereof, 
 or affects a svlistantial riglit. 
 
 § 349, (As am'd in 1863.) An appeal may, in like manner, and 
 within the same time, be taken from an order made at a special term 
 by a single judge of the same court or county, or a special county 
 judge, or by a recorder, or by any recorder's court of any cUy, in any 
 stage of the action, including proceedings supplementary to the 
 execution, and may be thereupon reviewed in the following cases : 
 
 1. When the order grants or refuses, continues or modifies, a pro- 
 visional remedy. 
 
 3. When it grants or refuses a new trial, or when it sustains or 
 overrules a demurrer. 
 
 3. When it involves the merits of the action, or some part thereof, 
 or affects a substantial right. 
 
 4 When the order in effect determines the action and prevents a 
 judgment from which an appeal may be taken. 
 
 5. When the order is made upon a summary application in an 
 action after judgment and affects a substantial right. 
 
 § 350. (Being § 300 of 1848.) The last section shall include an 
 order made out of court upon notice ; but in such case the order 
 must be first entered with the clerk. And,. for the purpose of an 
 appeal, any party affected by such order may require it to be en- 
 tered with the clerk, and it shall be entered accordingly. 
 
 (Am'd in 1870.) 
 
 § 350. (As am'd in 1870.) The last section shall include an order 
 made out of court upon notice ; but in such case the order must be 
 
§ SSL] CODE OF PBOCEDUEE. 247 
 
 first entered with the clerk. And, for the purpose of an appeal, any 
 party affected by such order may require it to be entered with the 
 clerk, and it shall be entered accordingly. 
 
 And proeeedinga under am, order appealed from may be stayed by an 
 order of the court, or a judge thereof, on stK^ terms (M may bejvM. 
 
 CHAPTER V. 
 
 Appeal to the Court of Oommon Pleas for the city and county of 
 Neu) York, or to a CourUy Court from, an inferior court. 
 
 Section 351. Existing laws repealed, and this chapter substituted 
 
 352. By what courts judgments to he reviewed. 
 
 353. Appellant to make affidavit. 
 
 354. Copy affidavit and notice of appeal to he served. 
 
 355. Security to stay execution. 
 
 356. Form of undertaking. 
 
 357. Execution, how stayed. 
 
 358. In case of death of justice, undertaking to he filed. 
 859. Counter affidavits allowed, and when and how served. 
 
 360. Betum ; when and how made, and compelled. 
 
 361. How made if justice he out of office. 
 
 362. Further return may he ordered. 
 
 363. If justice he dead, insane or absent from state, witnesses to he 
 
 examined ; if in another county, return may be compelled. 
 
 364. Hearing, upon return ; dismissing appeal if not brought on. 
 36.5. To be heard on original papers. 
 
 366. Judgment, hBw given. 
 
 367. Judgment roll. 
 
 368. Costs, how awarded. 
 
 369. Ordering restitution. 
 
 370. Setting off costs and recovery. 
 
 371. The costs on appeaL 
 
 § 351. (Being § 301 of 1848.) All statutes now in force, providing 
 for the review of judgmente in civil cases, rendered by courts of 
 justices of the peace, by the marine court of the city of New York, 
 by the assistant justices' courts in the city of New York, by the mu- 
 nicipal court of the city of Brooklyn, and by the justices' courts of 
 the cities of Albany, Troy and Hudson, 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. 
 
 (Am'd in 1849.) 
 
 § 3S1. (As am'd in 1849.) All statutes now in force, providing for 
 the review of judgments in civil cases, rendered by courts of jus 
 tices of the peace, by the marine court of the city of New York, by 
 the justices' courts in the city of New York, by the municipal court 
 of the city of Brooklyn, and by the justices' courts of cities, and 
 
248 CODE OF PEOCEDUBB. [§352. 
 
 regulating the practice in relation to such review, are repealed ; and 
 hereafter the only mode of -reviewing such judgments shall te an 
 appeal, as prescribed by this chapter. 
 
 § 3SS! <B^g § 303 of 1848.) When the judgment shall have been 
 rendered by the marine court of the city of New York, or by an 
 assistant justices' court in that city, the appeal shall be to the su- 
 perior court of the city 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. 
 
 (Am'd in 1849, 1857, 1862, 1863, 1864, 1865.) 
 
 § 352. (As am'd in 1849.) When the judgment shall have been 
 rendered by the marine court of the city of New York, or by a jus- 
 tice^ court in that city, the appeal shall be to the ixnirt 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 
 com-t of the county where the judgment was rendered. 
 
 § 852. (As am'd in 1857.) When the judgment shaU have been 
 rendered by the general term of the marine court of the city pf New 
 York, or by a justice cf the justices' court of 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 enume- 
 rated in the last section, to the county court of the county where 
 the judgment was rendered. The appeal from the general term of 
 the marine court, prescribed herein, shall he from an actual determi-. 
 nation at such general term only, and shall he taken within twenty 
 days after judgment by stich general term. ' 
 
 § 853. (As am'd in 1863.) When a judgment shall have been ren- 
 dered by. the general term of the marine court of the city of New 
 York, or by a justice of a justices' court of that city, the appeal shall 
 be to the court of common pleas for the city and county of New York. 
 
 The appeal from the general term of the marine court, prescribed 
 herein j shall be from an actual determination at Such general term 
 only, and shall be taken within twenty days after judgment by 
 such getteral term. In the city of Buffalo, the appeals from the courts 
 of justices of said dty shaU be to the superior court of. saM eity. When 
 rendered by any of the other courts enumerated in section 351, the ap- 
 
§ 352.] CODB OF PEOCEDUEB. 249 
 
 peal sham ie to ths county evmi of the county where the judgmeni was 
 rendered. On sucA appeal,, when the amount of the daim or cUdnn cf 
 either party litigated in the court below ahaU exceed fifty dollars, or 
 when, in an action to recover the possession of personal property, the 
 value of the property as assessed and the damages recovered shall exceed 
 fifty doUars, exclusive of costs, a new trial shall be had in ths county 
 court, in the following cases : 
 1. When the judgment was remdered upon, an issue of law joined 
 
 2. When it was rendered upon an issue of fad joined betaeen, the 
 parties, whether the defendant was present at the trial or not. 
 
 % 352. (As am'd in 1863.) Same as § 352, as amended in 1862, 
 except that the following words were added thereto : 
 
 " And, when the appeal is to the superior court of Buffalo, in the 
 cases in which, by the terms of this section, a new trial may be had, 
 such new trial shall be had in the said superior court." 
 
 § 352. (As am'd in 1864.) Same as § 352, as amended in 1863, ex- 
 cept that the following words were added at the end thereof : 
 
 " Provided, however, that the appellant may, in cases where the 
 amount litigated exceeds Mty dollars, state in the notice of appeal 
 that such appeal is taken upon questions of law only, in which case 
 a new trial shall not be had m county court ; but the appeal shall be 
 heard and determined in the same manner as if the amount litigated 
 in justice's court in said cause appealed was fifty dollars or under.' 
 
 § 352. (As am'd in 1865.) When a judgment shall have been ren- 
 
 , dered by the general t«rm of the marine court of the city of New 
 
 York, (St by a justice of a justices' court of that city, the appeal 
 
 shall be to the court of common pleas for the city and county of 
 
 New York. 
 
 The appeal from the general term pf the- marine court, prescribed 
 herein, shall be from an actual determination at such general term 
 only, and shall be taken within twenty days after judgment by such 
 general term. In the city of Buffalo, the appeals from the courts 
 of justices of said city shall be to the superior court of said city. 
 When rendered by any of the other courts enumerated in section 
 351, the appeal shall be to the county court of the county where 
 the judgment was rendered. On such appeal, when the amount of 
 
250 CODE OP PEOCEDXTEB. [§ 353- 
 
 the claim or claims /or wlMh judgment was dmrumded hy either party 
 in his pleadings in the court below, shall exceed fifty dollars, or 
 when, in an action to recover the possession ol personal property, 
 the yalue of the property as assessed and the damages recovered 
 shall exceed fifty dollars, exclusive of costs, a new trial shall be 
 had in the county court in the following appellate cases : 
 
 1. When the judgment was rendered upon an issue of law joined 
 between the parties. 
 
 2. "Wlien it was rendered upon an issue of fact joined between the 
 parties, whether the defendant was present at the trial or not. 
 
 And when the appeal is to the superior court of Buffalo, in the 
 cases in which, by the terms of this section, a new trial may be had, 
 such new trial shall be had in the said superior court. 
 
 Provided, however, that the appellant may, in cases where the 
 amoxiTit for which Judgment is demanded hy eith/er pa/rty in his plead- 
 ings exceeds fifty dollars, or wTiere, in an action to recover the posses- 
 ion of personal property, the vahie of the property as assessed, and the 
 damages recovered shaU exceed fifty doUa/rs, excl/uMee of costs, state in the 
 notice of appeal, that such appeal is taken upon questions of law 
 only, in which case a new trial shall not be had in the appellate court, 
 but the appeal shall be heard aud determined in the same manner 
 as if such amount, or said value and damages, were fifty dollars or 
 under. Provided, however, that, in- theeity and county of New York, 
 appeals from the marine and district courts shall he taken and hea/rd, 
 amd returns made, in the same mxm/ner as heretofore. 
 
 § 353. (Bemg § 303 of 1848.) The appellant shall, within twenty 
 days after the judgment, make, or cause to be made, an affidavit, stat- 
 ing the substance of the testimony and proceedings before the court 
 below, and the grounds upon which the appeal is founded. 
 
 (Am'd in 1851 and 1852.) 
 
 § 353. (As am'd in 1851.) The appellant shall, within twenty days 
 after judgment, make, or cause to be made, an affidavit, stating the 
 substance of the testimony and proceeding before the court below, 
 and the grounds upon which the appeal is founded. If the judg- 
 ment is rendered upon process not personally served, and the defend- 
 ant did not appear, he shall have twenty days, after personal notice of 
 the judgment, to make and serve the affidavit and notice of appeal pro 
 videdfor in this and the next section. 
 
§§ 353, 854.] COBS OF FSOCEDXrBS;. 251 
 
 § 353. (As am'd in 1852.) The appellant shall, within twenty 
 days after judgment, seme a notice of appeal stating the grounds 
 upon which the appeal is founded. If the judgment is rendered 
 upon process not personally served, and the defendant did not 
 appear, he shall hare twenty days, after personal notice of the 
 judgment, to serve the notice of appeal provided for in this and the 
 next section. 
 
 § 854. (Being § 304 of 1846.) A copy of the affidavit shall, within 
 the same time, be served on the respondent, if he be a resident of the 
 city or county, or, if he be not a resident, on the attorney or agent, 
 it any, who appeared for him on the trial, or on the justice, with 
 a notice stating that the appellant appeals from the judgment, and 
 that the appeal will be heard by the appellate court, at a time and 
 place therein designated, either in or out of term ; which copy and 
 notice shall be served at least ten days before the time for hearing 
 the appeal 
 
 (Am'd in 1849, 1851, 1852, 1857 and 1858.) 
 
 § 354. (As am'd in 1849.) A copy of the affidavit and a notice of 
 appeal shall, within the same time, be served on the justice and on 
 the respondent, if he be a resident of the city or county, personally, 
 or by leaving it at his residence with some person of suitable age 
 and discretion, or, if he be not a resident, on the attorney or agent, 
 if any, who is a resident of such city or county, who appeared 
 for him on the trial. 
 
 § 354. (As am'd in 1851.) The affdavO, and a notice of appeal rmut, 
 within the same time, be served on the justice, and a TwUce.oJ 
 the appeal on the respondent, personaRy, or by leaving it as his red- 
 deruse mfh 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; aTid the aipp^MKt 
 must, at the Ume of the sermce of the notice of appeal on the justice, 
 pay to him the costs of the a,cHon induded in the Judgment, together 
 viith two doBars, costs of the return, whi^ shall be restorefl to him in cage 
 ffie judgment is reversed, and be indvded in the judgment for costs on 
 recersdl. 
 
 § 354 (As am'd in 1852.) The notice of appeal must, within the 
 same time, be served on the justice, jper«07ia%, if living, and vnthin 
 
252 CODB OF PKOCKDUEE. [§ 354. 
 
 the eountp, w on Ma deirk, if there be one, and on the respondent, 
 personally, or by leaving it at his residence ■with some person of 
 suitable age and discretioii, or, in case the respondent is not a 
 resident of the conhty, 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 thie 
 action, included in the judgment, together with two dollais, C08ts:of 
 the return, which shall be restored to him in case the judgment 
 is reversed, and be included in the judgment for costs on reversal. 
 
 § 354. (As am'd in 1857.) 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 resi- 
 dent 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, if neither the respondent nor such agent or attorney 
 can be found in the county, the notice may be served on such respondent, 
 by Uaming U with the clerk of the county, 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 retopa.,. which ahaU be inehided in the judg- 
 ment for coats on reversal. 
 
 § 354. (As am'd in 1858.) The notice of appeal must, within the 
 same time, be served on the justite, 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 resi- 
 dent of such county, or cannot', after due diligence, be found thermi, 
 in the same manner, on the attorney or agent, if any, who 
 is a resident of such county, who appeared for the reapofid&nt on 
 the trial ; and, if neither the respondent nor such agent or attor- 
 ney can be found in the county, the notice may be served on the 
 respondent by leaving it with the clerk of the appelate court, and 
 the appellant must, at the time of the service of the notice of 
 appeal on the justice, or on hit derk as herein provided {except m 
 eases of appeala from the dia^ict eowta in the dty of Mew York, and 
 
§ 355.] CODE OF PEOCBDUEB. 253 
 
 thegenertU term of the marine court of the aty of New Tbrk), pay to 
 fxuHi jugUce or derk the costs of the action, included in the Judg- 
 ment, together with two dollars, costs of the return, which ^hall 
 be included in the judgments for costs on reversal. In all eases 
 of appeal from the general term of the marine court of the city of 
 New York, and from the district courts of the city of New York 
 to the court of comm/on pleas for the city and county of New York, 
 the appellant sh/Ul, ax the Ume of the semice of the notice of appeal, 
 pay to the clerk of the marine court, or to the justice or clerk of ths 
 district court, two dollars, as costs of th^ return to such court of com- 
 mon pitas, which costs so paid shaU he included in the judgment for 
 costs, in ca^e the judgment of tlte court below shall he reversed; and 
 ths appellant shaH also execute, on the appeal, a written undertaking, 
 on his part, with one or more sufficient sureties, to the effect that the 
 appellant will pay aU costs, disbursements and extra costs awa/rded 
 against him in the court below, if such judgment shall he affirmed by 
 the appMate court, on such appeal, together with all costs and dam,- 
 ages which may be awarded against him thereon; such sureties to 
 justify in double the amourtt specified in lAe undertaking; such 
 undertaking and the sufficiency of the sureties to be approved by the 
 justice of the court below, or one of the judges of the court of com- 
 mon pleas, or the appellarU may deposit with the clerk of the court of 
 common pleas the costs, disbursements and extra costs, included in the 
 judgment in the court below, and the sum of fifteen dollars, to meet 
 any costs that may he awarded a/jainst him in such appeal; and such 
 appeal from the general term of the marine court and the district 
 court shall be inegectual, unless within the time spedfiMfor bringing 
 the appeal, the aippeUant execute such undertaking or make mich 
 deposit ; the undertaki?ig, when executed and approved, to be filed with 
 the derk of the court of common pleas; the amount so deposited 
 shaU he repaid by said derk to the appelant, if he iucceed on the 
 appeal ; and, in case the judgment be affirmed, the said derk sJuUl, 
 after execution is issued, pay over the amount so deposited to the 
 respondent, which sheM be credited on the execution issued on the 
 judgment, of affirmarux, to the extent thereof , and the balance, if any, 
 on the execution issued on the judgment a/ppealed from. 
 
 § 355. (Being § 305 of 1848.)' If the appellant desire a stay of 
 execution of the judgment, he shall present the aflSdavit to a judge 
 of the appellate court, or a justice of the supreme court, who may, 
 22 
 
264 CODE OF PEOCED0E?!. [§§ 198—301. 
 
 thereupon, in his discretion, make an order that all proceedings on 
 the judgment be stayed, upon security being given as provided in 
 the next section. 
 (Am'd in 1849 and 1863.) 
 
 § 355. (As am'd in 1849.) If the appellant desire a stay ol exe- 
 "cution of the judgment, he shall give security as provided in the 
 next section. 
 
 § 355, (As am'd in 1863.) When, by the terms of section 353, th^ 
 a^>pellant is entitled to a new, trial, in the a/ppeHate amrt, he shall, at 
 the time of taking his appeal, and in aU other cases, if he desires a stay 
 of execution of the judgment, give security as provided in the next 
 section. 
 
 § 356. (Being § 306 of 1848.) The security shall be a written 
 undertaking, executed by one or more sufficient sureties, approved 
 by the judge making the «rder, or by the court below, to the effect 
 that, if judgment be rendered against the appellant, and execu- 
 tion thereon be returned unsatisfied, in whole or in part, the sureties 
 will pay the amount unsatisfied. 
 
 (Am'd in 1849.) 
 
 § 356. (As am'd in 1849.) The security shall be a written under- 
 taking, executed by one or more sufiicient sureties, approved by the 
 amnty judge, or by the court below, to the efiect 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. 
 
 § 357. (Bemg § 307 of 1848.) The delivery of the order and under- 
 taking to the court below shall stay the issuing of execution ; or, if 
 it have been issued, the service of a copy of the order and under- 
 taking, certified by the court below, upon the officer holding the 
 execution, with payment of his fees, shall stay Airther proceedings 
 thereon. 
 
 (Am'd m 1849.) 
 
 § 357. (As am'd in 1849.) The delivery of the undertaking to the 
 court below shall stay the issuing of execution ; or, if it have been 
 issued, the service of a copy of the undertaking, certified by the 
 court below, up6n the officer holding the execution, shall stay fur- 
 ther proceedings thereon. 
 
§§ 358, 369.] CODE 01" PKOCKDUKB. 256 
 
 § 358. (Being § 308 of 1848.) WTiere, by reason of the death of a 
 justice of the peace, or his removal from the county, or any other 
 cause, the order to stay and the undertaking on the appeal cannot 
 be delivered to him, they shall be filed, with the clerk of the appel- 
 late court, and notice thereof given to the respondent. They shall 
 thereupon have the same effect as if delivered to the justice. 
 
 (Am'd in 1849.) 
 
 § !158, (As am'd in 1849.) Where, by reason of the death of a 
 justice of the peace, or his removal from the county, or any other 
 cause, the undertaking on the appeal cannot be delivered to him, 
 it shall be filed with the clerk of the appellate court, and notice 
 thereof given to the respondent, or his aitomey or agent, as provided 
 in section 354. It shall thereupon have the same effect as if delivered 
 to the justice. 
 
 § 359. (Being § 309 of 1848.) "When the affidavit and notice of 
 appeal shall have been served, the respondent may supply or correct 
 material omissions or misstatements therein, by an affidavit on his 
 part, a copy of which shall be served on the attorney, if any, who 
 prosecutes the appeal, or, if there be none, on the appellant, or on 
 the attorney or agent, if any, who appeared for him on the trial, at 
 least four days before the time for hearing the appeal. 
 
 (Am'd in 1849 and 1852.) 
 
 § 359. (As am'd in 1849.) When the affidavit and notice of appeal 
 shall have been served, the respondent may supply or correct mate- 
 rial omissions or misstatements therein, by an affidavit on his part 
 a copy of which shall be served on the justice, and also on the attor- 
 ney, it any, who prosecute the appeal, or, if there be none, on tlie appe- 
 lant, mthin ten days after receiving notice of the appeal. 
 
 § 359. (As am'd in 1852.) When, by reason of the death of a justice 
 of the peace, or Ms aisence from the county, or any other cause, the 
 notice of appeal cannot be served as provided by section 353, U may be 
 served by leaving the same with the derk qf the county. 
 
 (§ 310 of 1848— omitted in 1849. The appellate court shall pro- 
 ceed to hear the appeal, at the time and place mentioned in the 
 notice, or to which the hearing may be adjourned, or at such other 
 time as the court shall appoint, of which at least ten days' notice 
 shall have been given, and -may decide the same upon the affidavits • 
 
256 CODE OP PEOCEDUEE. [§ 360. 
 
 or if they be' contradictory-, or defective in material points, may 
 order the court below to make a return of the testimony: and pro- 
 
 .'ceedings before it, ■withrn ten days after the service of the order and 
 
 ■ affidavits, or of copies thereof.) 
 
 §360. (Being § 311 of 1848.) The court below shall thereupon, 
 within the time limited by the order, make a return to the appellate 
 court of the testimony, proceedings and judgment, and file the same, 
 with the order and affidavits, in the appellate court; and may be 
 compelled to do so by attachment. But' no justice of the peace 
 i shall be bound to make a return unless the fee prescribed by the 
 last Section of this chapter be paid on the service of the order. 
 ■ (Am'd in 1849, 1852, 1863, 1865 and 1866.) 
 
 § 360. (As am'd in 1849.) The court below shall thereupon, after 
 ten days, aitfl within thirty days after sercice of the noMce of appeal, 
 make a return to the appellate court of the testimony, proceedings 
 and judgment, and file the same, with the affidavits, in the appellate 
 court, and may be compelled to do so by attachment. But no justice 
 of the peace shall be bound to make a return unless the fee pre- 
 scribed by the last section of this chapter be paid on the service of 
 the Twtice of appeal. 
 
 § 360. (As am'd in 1852.) The court below shall 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, pro- 
 ceedings and judgment, and file the same in the appellate court, and 
 may be compelled to do so by attachment. But no justice of the 
 peace shall be bound to make a return unless the fee prescribed .by 
 the last section of this chapter be paid on service of the notice of 
 appeal. 
 
 '§ 360. (As am'd in 1863.) The court below shall thereupon, after 
 ten days, and within thirty days after 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. The return 
 may be dompeUed by attachment. But no justice of the peace shall, 
 etc. (as in 1852.) 
 
 §360. (As am'd in 1865.) Same as §360, as amended in 1863, except 
 that the following words were added at the end thereof : 
 
§§ 169-171. J CODE OF PEOOEDUBE. 257 
 
 "Provided, however, that, in cases where the amount for which 
 jadgment is demanded -by either party, in his pleadings in the, court 
 below, ejcceeds fifty dollars, or where the value, of fhe property 
 recovered, as appears from the verdict or judgment, shall exceed, 
 fifty dollars, the testimony need not be retm-ned ; but, in such case, 
 the court below shall return the process by which the action was 
 commenced, with the proof of service thereof, and the pleadings or 
 copies thereof, the proceedings and judgment, together with a brief 
 statement of the amount and nature of the claim or claims litigated 
 by the respective parties, and in all cases the notice of appeal shall 
 be annexed to the return." 
 
 And the word " fee" therein was changed to fee». 
 
 § 360. (As am'd in 1866.) The court below shall thereupon, after 
 ten days, and within thirty days after 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. The return 
 may be compelled by attachment. But no justice of the peace shall 
 be boimd to make a return unless the fees prescribed by the last 
 section of this chapter be paid on the service of the noticeof appeal j 
 provided, however, that, in cases where the amount for which judg- 
 ment & demanded by either party, in his pleadings in the court 
 below, exceeds fifty dollars, or where the value of the property 
 recovered, as appears from the verdict or judgment, shall exceed; 
 fifty dollars, the testimony need not be returned ; but in such case 
 the court below Shall return the process by which the action was 
 commenced, with the prpof of service thereof, and the pleadings or 
 cqpiies thereof, the proceedings and judgment,^ogether with a brief, 
 statement of the amount and nature of the claim or claims liti- 
 gated by the respective parties, and in all cases the noticeiof appeal 
 shall be annexed to the return; Tmt in corns where the appellant shaM, 
 m accordance with the provimns of section 352 of this act, state in 1M 
 notice cf appeal thai such a/ppeal is taken upon questions of lam only, 
 the court below shdO, return to the appMate eowrt the testimony, proceed- 
 ings and judgment. 
 
 § 361. (Being § 313 of 1848.) When a justice of the peace, by: 
 whom a judgment appealed from was rendered, shall have gone 
 out of oflSce before a return is ordered, he shall, nevertheless, make 
 a return in the same manner, and with the like effect, as if he were 
 still in ofiice, 
 
 22* 
 
258 CODE OF PEOCBDUBE. [§§ 362-364, 
 
 § 362. (Being § 318 of 1848.) If the return be defective, the appel- 
 late court may direct a further or amended return as often as may 
 be necessary, and may compel a compliance with its order by 
 attachment. 
 
 (Am'd in 1857.) 
 
 § 362. (As am'd in 1857.) If the return be defective, the appel- 
 late court may direct a further or amended return as often as 
 may be necessary, and may compel a compliance with its order 
 by attachment ; amd the cowrt shaU always be deemed open for these 
 purposes. 
 
 § 363. (Being § 314 of 1848.) If a justice of the peace, whose 
 judgment is appealed from, shall die, become insane, or remove 
 from the State, the appellate court may examine witnesses, on oath, 
 to the facts and circumstances of the trial or judgment, and deter- 
 mine the appeal, as if the facts had been returned by the justice. 
 If he shall have removed to another county witlim the State, the 
 appellate court may compel Mm to make the return, as if he 
 were still within the county where the judgment was rendered. 
 
 § 864. (Being § 315 of 1848.) If a return be made, the appeal may 
 be brought to a hearing at a general term of the appellate court, upon 
 a notice by either party of not less than eight days. It shall be 
 placed upon the calendar, and continue thereon without further 
 notice until finally disposed of. But, if neither party bring it to a 
 hearing before the end of the second term, the court shall dismiss 
 the appeal, unless it continue the same, by special order, for 
 cause shown. 
 
 (Am'd in 1863 and 1863.) 
 
 § 364. (As am'd in 1863.) If a return be made, and the'appeal is 
 from a jvdgmetd where a new trial may not be had, as provided by 
 this chapter, it may be brought to a hearing at a general term of 
 the appellate court, upon notice by either party of not less than 
 eight days. It shall be placed upon the calendar, and continue 
 thereon without further notice until finally disposed of. But, if 
 neither party bring it to a hearing before the end of the second 
 term, the court shall dismiss the appeal, unless it continue the 
 same by special order for cause shown. Jf the appeal is from a 
 judgment where a new trial may be had, it may be brought to a hearing 
 
§§ 364, 365.] CODE OF PBOCBDUEE. 259 
 
 or trial at amg term of the cov/niy court, at wMch a peUtjv/ry shaU 
 be mmmumed to attend, wpon the same notice as provided for aetiona 
 in tTie supreme court; at least eight days before the court the pairtg 
 deam/ng to bring on the appeal shall serve a note of issue on the derJe, 
 and the derk shaU thereupon enter the eamse on the calendar accord- 
 ing to the date of the return. 
 
 § 364. (As am'd in 1868.) If a return be made, and the ap- 
 peal is from a judgment where a new trial may not be had, as 
 provided by this chapter, it may be brought to a hearing at a 
 general term of the appellate court, upon notice by either party 
 of not less than eight days. It shall be placed upon the cal- 
 endar, and continue thereon without further notice until finally 
 disposed of. But, if neither party bring it to a hearing before 
 the end oS the second term, the court shall dismiss the appeal, 
 unless it continue the same by special order for cause shown. If 
 the appeal is from a judgment where a new trial may be had, it 
 may be brought to a hearing or trial at any term of the eounty court, 
 at which a petit jury shall be summoned to attend, upon the same 
 notice as provided for actions in the supreme court ; at least eight 
 days before the court the party desiring to bring on the appeal shall 
 serve a note of issue on the clerk, and the clerk shall thereupon 
 enter the cause on the calendar according to the date of the return. 
 And the promions of this chapter for a new trial shaU apply as wed 
 to appeals heretofore taken and now pending as those hereafter to be 
 brought. 
 
 § 365. (Being § 316 of 1848.) The appeal, whether heard on the 
 afldavits or return, shaU be heard on the original papers, and 
 no copy thereof need be frunished for the use of the court. 
 
 (Am'd in 1849 and 1869.) 
 
 § 365. (As am'd in 1849.) The appeal shall be heard on the 
 original papers, and no copy thereof need be furnished for the 
 use of the court. 
 
 § 36S. (As am'd in 1869.) The appeal shall be heard on the 
 original papers, or certified copies thereof, and no copies thereof need 
 be furnished for the use of the court. 
 
260 CODB OP PEOCEDUKE. , [§ 366. 
 
 §366. (Being §317 of 1848.) Upon the hearing of the appeal, 
 either upon affidavits, or upon the return, the appellate court 
 Bhall give judgment according to the justice of the case, without 
 regard to technical errors or defects, which do not affect the 
 merits: In giving' judgment, the court may either order a new 
 trial, or may affirm or reverse the judgment of the. court beloWi 
 in whole or in part, and as to any or all the parties. 
 
 (Am'd in 1849, 1851, 1862, 1865.) 
 
 §366. (As am'd in 1849.) Upon the hearing of the appeal, the 
 appellate court shall give judgment according to the justice of 
 the case, without regard to technical errors or 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. . 
 
 § 366. (As am'd in 1851.) Same as § 366, as amended in 1849, 
 except that the following words were added at the end thereof: 
 
 " If the appeal is founded on an error in fact in the proceedings, 
 not affecting the merits o^the action, and not within the knowledge 
 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 witnesses. If the defendant failed 
 to appear before the justice, and jt is shown by the affidavits served, 
 or otherwise, that manifest injustice has, been done, and the defend- 
 ant satisfactorily 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 
 tprms, 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 action as on the return 
 of a summons personally served." 
 
 §366. (As am'd in 1862.) Upon the hearing of the appeal, the 
 appellate court shall 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 appeal Is founded on an error in fact in the proceedings, 
 
§ 366.]. CODK OP PEOCEDUEE, • 261 
 
 not affecting the merits of the action, and not witliin 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 witnesses. If the 
 defendant failed to appear before the justice, and it is shown by 
 the affidavits served ^ the appelUmt, or otherwise, that manifest 
 injustice has been done, and he satisfactorily 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 in the 
 same county, at such time and place and on such terms as the 
 court may deem proper. Where a new trial ahoM be ordered before 
 a jusiiee,ttie parties must appear before him according to the order 
 of the court, and the same proceedings must thereupon be had in 
 the action as on the return of a summons personally served. Jf 
 the a^eal shaU be from a juclffment in which a' new trial may be had 
 as in this chapter provided, the court shaU proceed to the hea/ring of the 
 cause, if the issue joined before the justice was an issue of la/m, or to 
 the trial thereof by jury, if such issue was upon a question of fact. 
 
 I. If the issue joined before the justice was an issue <ff law, the 
 court shall render judgment thereon according to the km of the case; 
 a/nd if sueh judgment be against the pleadings of either pairty, an 
 amendment of such pleading may be aMowed on the same terms amd 
 in like case as pleadings in actions in the supreme court; and the 
 cowrt may tJierewpon require the opposite pa/rty to answer such 
 amended pleadipg, or join issue thereon, as the ease may rehire. 
 
 2. ff, upon am appeal in an issue of lam, the court should adjudge 
 the pleading complained of to be valid, it shall in like manner re- 
 quire the oppo^te party summarily to answer such pleading, or join 
 issue thereon, as the case may require. 
 
 3. Upon an issue of fact being so, joined, the cqurt shall proceed to 
 nea/r the same tried by a jwryin the saime manner as issues joined in 
 the supreme cowrt. 
 
 4. Ih)ery issue of fact so joined, or brought upon an appeal, shaU 
 be tried in the same manner as in aetions commenced in the supreme 
 court. 
 
 5. The court shaU ham the same power oxer its own determinations 
 the verdict of the jury, and shaU render judgment thereon in the same 
 manner, as the supreme court in a^^tions pending iherdn. 
 
 6. Either parly may move for a new trial in said court on a ease 
 or exception or otherwise, and sueh motion may be made before or 
 
262 • CODE OP PEOCEDUKB. [§§ 366, 367. 
 
 after judgment has been, entered, and the provmons of this act in rela- 
 tion to the proceedings, on recemrtg the verdict of a jury, exertions to 
 the decisions of the court, making and settling case jj,nd exceptions, 
 motions for new trials and making tip tJie judgment roU in the supreme 
 court, are hereby made applicable to aU appeals brought up for trial, as 
 in this cJujpter provided. 
 
 § 366. (As am'd in 1865.) Same as § 366, as amended in 1862, 
 except in subdivision 5, which was amended so as to read as 
 follows : 
 
 5. The coiirt shall have the same power over its own detennina- 
 tions and the verdict of the jury, and shall render judgment thereon 
 in the same manner, as the supreme court in actions pending therein, 
 and may aMow either pa/rty to am^end his pleadings upon such terms at 
 shall be just, in cases wh^ere a new trial may be had, as in this chapter 
 provided ; and in any such appeal, on which a new tried is to be had, 
 either pa/rty may, at any time before trial, seme upon the opposite party 
 an offer, in vyriHng, to (Mow jiidgment to be taken against him for the 
 sum or property, or to the effect in such offer epecifed, and with or mth- 
 out costs, as said offer shall specify. If the pa/rty receiving such offer 
 accept the sam^e, and give notice thereof, in writing, within ten days, he 
 may fie the return and offer, mth an affidamt of service of notice of 
 acceptance thereof, and the derk shcM thereupon enter judgment accord- 
 ing to said offer. And if the party making such offer shall "home given, 
 an undertaking upon the appeal, the parties executing such undertaking 
 shaM be liable thereon for the payment of the judgment entered by virtue 
 of said offer. If the notice of acceptance be not given, the offer is to be 
 deemed withdrawn, and cannot be given in emdenee. And, if the 
 party to whom sudi offer is madefaH to obtain a judgment more favor- 
 able to him than that specified in said offer, then he shali not recover 
 costs, but must pay the other party's costs from the date of the service of 
 the offer' " 
 
 § 367. (Being § 318 of 1848.) To every judgment upon an appeal 
 there shall be annexed the affidavits or return on which it was 
 heard, which shall be filed with the clerk of the court and shall 
 constitute the judgment roll. 
 
 (Am'd in 1853, 1865 and 1869.) 
 
 g 367. (As am'd in 1852.) To every judgment upon an appea 
 there shall be annexed the return on which it was heard, which' 
 
§ 361.] COBK 01" PEOCEDXJKB. 263 
 
 sUall be filed with the clerk of the court, and shall constitute t<,'e 
 judgment roll. 
 
 § 367. (As am'd in 1865.) To every judgment upon an appeal 
 there shall be annexed the return on which it was heard, the notice 
 of appeal, with any offet, verdiot, decision of the court, exceptions, 
 case, and all orders and papers in any way invoMng the merits 
 and necessarily affecting the judgment, which shall be filed with 
 the clerk of the court, and shall constitute the judgment roll. 
 
 § 367. (As am d in 1869.) To every judgment upon appeal there 
 shall be annexed the return upon which it was heard, or a certified 
 copy thereof, the notice of appeal, with any offer, verdict, decision 
 of the court, exceptions, case, and all orders and papers in any 
 way involving the merits and necessarily affecting the judgment, 
 which shall be filed with the clerk of the court, and shall constitute 
 the judgment roll. 
 
 (§ 319 of 1848, omitted in 1849. If a new trial be ordered, a con- 
 cise statement of the reasons for such order shall be filed with the 
 clerk. The court below shall thereupon proceed to try the action, 
 upon the issue originally joined therein, or upon amended plead- 
 ings, in its discretion ; and for that purpose, on the application of 
 either party, may issue a summons directed to the other, to appear 
 for such new trial, at a time and place to be designated therein ; the 
 time to be not less than six days from the service of the summons. 
 And the trial may be adjourned fi:om time to time, not exceeding 
 ninety days in all, in the same manner and on the same terms as a 
 second or further adjournment may now be granted by courts of 
 justices of the peace, or to procure the issuing and return of a com- 
 mission to take testimony ; and the trial and all subsequent pro- 
 ceedings shall be had therein, and conducted in like manner, in all 
 respects, as in an action originally commenced before the same 
 justice.) 
 
 (§ 330 of 1848, omitted m 1849. If a new trial be ordered on an 
 appeal from a judgment of a justice of the peace, it shall be before 
 the same justice, or before any other justice in the same county, 
 in the discretion of the appellate court.) 
 
264 CODB OF PEOCEDUBBi [§ 368^371. 
 
 :. § 368. (Being § 321 of 1848.) H the judgment be aflanned> costs. 
 Bhall be awarded to the respondent. If it b^ reversed, costs shall 
 be awarded to the appellant, unless a new trial be ordered, in which 
 case they shall be in the discretion of the appellate court. If it be 
 affirmed in part, the costs, or such part as the court .BhaU. deem 
 just, may be awarded to either party. 
 (Am'd in 1849.) 
 
 § 36S. (As am'd in 1849.) If the judgment be affirmed, costs 
 shall be awarded to the respondent. If it be reversed, costs shall 
 ^e awarded to tlie appellant. If it be affirmed in part, the costs, or 
 such part as to the court shall seem just, may be awarded to either 
 party. 
 
 § 369. (Being § 322 of 1848.) If the judgment below, or any part 
 thereof, be collected, and the judgment be afterwards reversed, the 
 appellate court shall 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 pre- 
 vibus notice of six days. 
 
 (Am'd in 1857.) , 
 
 § 369. (As am'd in 1857.) If the judgment below, or any part 
 thereof, be paM or collected, and the judgment be afterwards re- 
 versed, the appellate court shall order the amount paid or collected 
 to be restored, with interest from the time of such payment or col- 
 lection. The order may be obtained on proof of the facts made at 
 or after the hearing, upon a previous notice of six days, artd if the 
 order shoM be made before the jitdgment is entered, the amount may be 
 indvML in the judffment. 
 
 § 370. (Being § 323 of 1848.) If, upon an appeal, a recovery bfe 
 had by one party, and costs be awarded to the other, the appellate 
 court shall set off the one against the other, and render judgment 
 for the balance. 
 
 ■ 1 371. (Behig I 324 of 1848.) The following fees and costs, and 
 no other, shall be allowed on the appeals mentioned in this chapter;- 
 To the appellant, on reversal, if upon affidavit, ten dollars; if 
 upon a return, fifteen dollars. 
 
§ SVl.] -CODE OF PEOCEDUKK. 265 
 
 To the respondent, on afflnnance, if upon affidavit, seven dollars; 
 if upon a return, twelve dollars. 
 
 To a justice of the peace, for his return, one dollar. 
 
 If the judgment appealed from be reversed in part, and affirmed 
 as to the residue, the amount of costs allowed to either party shall 
 be such sum as the appellate court may award, not exceeding ten 
 dollars. 
 
 If the appeal be dismissed for want of prosecution, as provided 
 by section 315, no posts shaU be allowed to either party. 
 
 (Am'd in 1849, 1851, 1862, 1863, 1864, 1866.) 
 
 § 371. (As am'd in 1849.) The following fees and costs, and no 
 other, exc^t fees tf officers, shall.be allowed on appeah : 
 
 To the appellant, on reversal, fifteen dollars. 
 
 To the respbudeht, oh affirmance, twelve dollars. 
 
 To a justice of the peace, for his return, one dollar. 
 
 It the judgment appealed from be reversed in part, and affirmed 
 aa to the residue, the amount of costs allowed to either party shall 
 be such sum as the appellate court may award, not exceeding ten 
 doUirs. 
 
 If the appeal be dismissed for want of prosecution, as provided 
 by section 364, no costs shall be allowed to either party. 
 
 § 371. (As am'd in 1851.) The following fees and costs, and no 
 otier, except fees of officers cmd disbursements, shall be 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, etc. (as in 1849). 
 I 
 
 % 371. (As am'd in 1863. Costs shall be allowed to the prevailing 
 
 party in judgments rendered on appeal in aU cases, with the follow- 
 ing exceptions and limitations : In the notice of appeal, the appel- 
 lant shall state in what particular or particulars he claims the 
 judgment should have been more favorable to him. Within fifteen 
 days after the service of the notice of appeal, the respondent may ■ 
 serve upon the appellant and. justice an oflFer, in writing, to allow 
 the judgment to be corrected in any of the particulars mentioned 
 in the notice of appeal. The appellant may, thereupon, and within 
 five days thereafter, ffie with the justice a written acceptance of 
 such ofier, who shall thereupon make a minute thereof in his docliet, 
 23 
 
266 CODE OP PBOCEDUEE. [§ 3Y1. 
 
 and correct such judgment accordingly, and the same so corrected 
 shall stand as his judgment, and he enforced accordingly ; and any 
 execution which has been issued upon the judgment appealed from, 
 shall he amended by the justice to correspond with the amended 
 judgment; and no undertaking given to stay execution shall be 
 enforced for more than the amount of the corrected judgment. If 
 such offer he not made, and the judgment in the county court be 
 made favorable to the appellant than the judgment in the court 
 below ; or if such offer be made and not accepted, and the judg- 
 ment be more favoraKe to the appellant than the offer of the re- 
 spondent, the appel ai.t shall recover costs. The respondent shall 
 be entitled to recover costs where the appellant is not. 
 
 Whenever costs are awarded to the appellant, he shall be allowed 
 to tax, as part thereof, the costs and fees paid to the justice on 
 making the appeal, as disbursments, in addition to the costs in the 
 appellate court ; and v.'hen the judgment in the suit before the jus- 
 tice was against such appellant, he shall further be allowed to tax 
 the costs incurred by him, which he would have been entitled to 
 recover in case the judgment below had been rendered in his favor. 
 If, upon an appeal, a recovery for any debt or damages be had by 
 one party, and costs be awarded to the other party, the court shall 
 set off such costs against such debt or damages, and render judg- 
 ment for the balance. The following fees and costs," and no other, 
 except fees of of9cers, disbursements and witnesses' fees, shall be 
 allowed on appeals, to the party entitled to costs as herein provided 
 when the new trial is in the county court. 
 
 For proceedings before notice of trial, ten dollars ; for all subse- 
 quent proceedings before trial, seven dollars ; for trial of an issue of 
 law, ten dollars ; for every trial of an issue of fact, fifteen dollars; 
 for argument of a motion for a new trial on a case or a bill of » ex- 
 ceptions, ten dollars ; in all cases, to either party, for every term 
 not exceeding five, at which the appeal is necessarily on the calen- 
 dar, and is not tried or is not postponed by the court, seven dollars. 
 In other appeals the costs shall be as follows : To the appellant, on 
 reversal, fifteen dollars; to the respondent, on the afiirmance, 
 twelve dollars. If the judgment appealed from be reversed in part 
 and afSrmed as to the residue, the amount of costs allowed to either 
 party shall be such sum as the appellate court may award, not ex- 
 ceeding ten dollars. If the appeal be dismissed for want of prose- 
 cution, as provided by section 364, no costs shall be allowed to 
 
§ 371.J CODE OF PKOCEDURE. 267 
 
 either party. In every appesd the justice of the peace before whom 
 the judgment appealed from -was rendered shall receive two dol- 
 lars for his return. If the judgment be reversed for an error of fact 
 in the proceedings, not affecting the merits, costs shall be in the 
 di^retion of the court. 
 
 § 371. (As am'd in 1863.) Same as § 371, as amended in 1862, 
 except that the last two sentences in the first paragraph were 
 stricken out and the following words were inserted in place thereof : 
 
 " If such offer be not made, and the judgment in the appellate 
 court be more favorable to the appellant than the judgment in the 
 court below, or if such offer be made and not accepted, and the 
 judgment of the appeUate court be more favorable to the appellant 
 than the offer of the respondent, the appellant shall recover costs. 
 If the offer be made and accepted by the appellant, the appellant 
 shall recover all his disbursements on appeal, and all his costs in the 
 court below. But the appellant shall not recover costs except as 
 provided in this chapter. The respondent shaU be entitled to 
 recover costs where the appellant is not" 
 
 § 371. (As am'd in 1864.) Same as § 371, as amended in 1863, 
 except that the following words were added at the end thereof : 
 
 " If, in the notice of appeal, the appellant shall not state in what 
 particular or particulars he claims the judgment should have been 
 made more favorable to him, he shall not be entitled to costs, unless 
 the judgment appealed from be wholly reversed." 
 
 § 371. (As am'd in 1866.) Costs shall be allowed to the pre- 
 vailing party in judgments rendered on appeal in all cases, with 
 the following exceptions and limitations : In the notice of appeal, 
 the appellant shall state in what particular or particulars he claims 
 the judgment should have been more favorable to him. If he 
 daims that the amount of judgment U legs famyrable to him than, 
 it should have been, he shaU state what should have been its amount. 
 "Within fifteen days after the service of the notice of appeal, the 
 respondent may serve upon the appellant and justice an offer, in 
 writing, to allow the judgment to be corrected in any of the par- 
 ticulars mentioned in the notice of appeal. The appellant may, 
 thereupon, and within five days thereafter, file with the justice, a 
 written acceptance of such offer, who shall thereupon make a minute 
 
268 CODE OF PEOCEDTTEK [§ S'Tl. 
 
 thereof in his docket, and correct auch judgment accordinglj;, and 
 the same so corrected shall stand as his judgment, and lie enforced 
 accordingly; and any execution which has been issued upon the 
 judgmeiat appealed frorii siiall be amended by the justice to cor- 
 respond -with the amended judgment ; ' and no imdertaking given to 
 stay execution shall be enforced for more than the amount of Qie 
 corrected judgment. If such offer be not made, and the judgment 
 in the appellate cqturt be more favorable to the appellant than the 
 judgment in the court below, or if such offer be made and not 
 accepted, and the judgment in the appiellate court Me more favpr- 
 able to the appellant than the offer of the respondent, the appellant 
 shall recover costs ; provided, however, that the a/ppellaut ihaU not 
 recover costs unless the judgment appealed from shaM be reversed on 
 such a/ppeal, or he made more famoriMe to him,, to the amount of at 
 least ten dollars. If the offer be made, anil accepted by the appel- 
 lant, the appellant shall recover all' his disbursements on appeal, 
 and all his costs in the court below. But the appellant shall not 
 recover costs except as provided in this chapter. The respondent 
 shall be entitled to recover costs where the appellant is not. 
 
 Whenever costs are awarded to the appellant, he shall be allowed 
 to tax as part thereof the costs and fees paid to the justice on making 
 the appeal, as disbursements, in addition to the costs in the appel- 
 late court ; and when the judgment in the suit before the justice 
 was agaiinst such appellant, he shall further l)e allowed to tax the 
 costs incurred by him, which he would have been entitled to recover 
 in case the judgment below had been rendered in his favor. If,, 
 upon an appeal, a recovery for any debt or damages be had by one 
 party, and costs be awarded to the other party, the court shall set 
 off such costs against such debt or damages, and rendej" judgment 
 for the balance. The following fees and costs, and no other, except 
 fees of officers, disbursements and witnesses' fees, shall be allowed 
 on appeal, to the party entitled to costs as herein provided, when 
 the new trial is in the county court. 
 
 For proceedings before notice of trial, ten dollars ; foi^ all sub- 
 sequent proceedings before trial, seven dollars; for, trial of an 
 issue of law, ten dollars ; for every trial of an jjssue pf fact, fifteen 
 dollars; for argument of a motion ;^or a new trial on ti case or a 
 bai of exceptions, ten dollars • in all cases, to either party, for every 
 term not exceeding flye, at which the appeal is necessarily on the 
 calendar and is not tried or is not postponed by the court seven 
 
§ 372.] CODS OP 'PEOCBDUEE. 269 
 
 dollars. In other appeals the costs shall be as follows: To the 
 appellant, on reversal, fifteen dollars; to the respondent, on the 
 affirmance, twelve dollars. If the judgment appealed from be 
 reversed in part and affirmed as to the residue, the amount of costs 
 allowed to either party shall be such sum as the appellate court may 
 award, not exceeding ten dollars. If the appeal be dismissed for 
 want of prosecution, as provided by section 364, no costs shall be 
 allowed to either party. In every appeal the justice of the peace 
 before whom the judgment appealed from was rendered, shall 
 receive two dollars for his return. If the judgment be reversed for 
 on error of fact in the proceedings, not affecting the merits, costs 
 shall be iii the discretion of the court. If , in the notice of appeal, 
 the appellant shall not state in what particular or particulars he 
 claiins the judgment should have been more favorable to him, he 
 shall not be entitled to costs unless the judgment appealed from 
 shall be wholly reversed. 
 
 TiTiii! zn. 
 
 Of tTie iHsceUcmeous Proceedings in Cml Aetiona, and Oene/rA 
 
 Chapteb L Sabmitting a controversy without action. 
 
 XL Proceedings gainst joint debtors, lieirs, legatees, devisees, and 
 
 tenants nolding nnder a jndgment debtor. 
 nL Confession of judgment without action. 
 IV. Offers of the defendant to compromise the whole or a part of the 
 
 ■ ' action. 
 Y. Admission or inspection of writings. 
 TI . Examination of parties. 
 yil. Examination of witnesses. 
 VUL Motions and orders. 
 IX. Entitling affldavits. 
 X. Compulation of time. 
 XL Notices and filing and service of papers. 
 Xn. Duties o^ sheriffs and coroners. 
 ' XHL Acconntabiltty Of guardian. 
 XIV. Powers of referees. 
 ' XV; Uiscellaneoas provisions. 
 
 CHAPTER L 
 Submitting a Oontro'perij/ without Action. 
 
 Sectxok 372. Controversy, how submitted without action. 
 
 373. Judgment on, as In other cases, but without costs. 
 
 374. Judgment may be enforced, or appealed from, as in an action. 
 
 I Sra. (Being § 335 of 1848.) Parties to a question in difference, 
 which might be the subject of a civil action, may, without action, 
 agree upon a case containing the facts upon which the controversy 
 23* 
 
270 CODE OF PROCEDUBE. [§§ 373-375. 
 
 depends, and present a submission of the same, to any court wMch 
 would have jurisdiction if an action had been brought. But it must 
 appear, by affidavit, that the controversy is real, and the proceeding 
 in good faith, to determine the rights of the parties. The court 
 shall thereupon hear and determine the case, at a general term, and 
 render judgment thereon, as if an action were depending. 
 
 § 373. (Being § 326 of 1848.) Judgment shall be entered in the 
 judgment book, as in other cases. The case, the submission, and a 
 copy of the judgment shall constitute the judgment roll. 
 
 (Am'd in 1849.) 
 
 I S7S. (As am'd in 1849.) Judgment shall be entered in the judg- 
 ment book, as in other cases, 6m< ^llithout costs, for any proceeding 
 prior to notice of trial. The case, the submission, and a copy of the 
 judgment shall constitute the judgment roll. 
 
 § 374. (Being § 327 of 1848.) The judgment may be enforced in 
 the same manner as if it had been rendered in an action, and shall 
 be subject to appeal in like manner. 
 
 CHAPTER IL 
 
 Froeeedings against Joint Debtors, Heirs, Devisees, Legatees and Ten- 
 ants holding under a Judgment Debtor. 
 
 SscTXON 375. Parties not Bommoned in action on joint contract, may be Bma< 
 moned after judgment. 
 
 376. If judgment debtor die, bis representatives may be snmmoned. 
 
 377. Form of summons. 
 
 378. To be accompanied by affidavit of amount due. 
 
 379. Party snmmoned may answer and defend. 
 
 380. Subsequent pleadings and proceedings same as in an action. 
 
 381. Answer and reply to be verified as in an action. 
 
 § 375. (Being § 328 of 1848.) When a judgment shall be recovered 
 against one or more of several persons, jointly indebted upon a 
 contract, by proceedings as provided in section 115, those who were 
 not originally summoned to answer the complaint may be sum- 
 moned to show cause why they should not be bound by the judg- 
 ment, in the same manner as if they had been originally summoned 
 
 (Am'd in 1849.) 
 
 § 375. (As am'd in 1849.) When a judgment shall be recovered 
 against one or more of several persons, jointly indebted upon a 
 contract, by proceeding as provided in secUon 136, those who were 
 
§§ 376-379.] CODE OF PBOCBDUEB. 271 
 
 not originally summoned to answer the complaint may be sun 
 moned to show cause why they should not be bound by the judj 
 ment, in the same manner as if they had been originally summonei 
 
 § 376. (Being § 329 of 1848.) In case of the death of a judgmei 
 debtor after judgment, the personal representatives, heirs, devisees, 
 or legatees of the judgment debtor, or the tenants of real property 
 owned by him and affected by the judgment, may be summoned 
 to show cause why the judgment should not be enforced against 
 the estate of the judgment debtor in their hands respectively. 
 
 (Am'd in 1849.) 
 
 § S76. (As am'd in 1849.) In case of the death of a judgment 
 debtor after judgment, the heirs, devisees, or legatees of the judg- 
 ment debtor, or the tenants of real property owned by him and 
 affected by the judgment, may, after the eaypi/raMon of three years 
 from Hie time of granMng letters testamenta/ry or of aS/mmiatration 
 v/pon the estate of the testator or intestate, be summoned to show cause 
 why the judgment should not be enforced, against the estate of the 
 judgment debtor, in their hands respectively, and the personal repre- 
 sentatives of a deceased judgment debtor may he so summoned, at any 
 time within one year after their appointment. 
 
 § »77. (Bemg § 330 of 1848.) The summons provided in the last 
 two sections shall be subscribed by the judgment creditor, his 
 representatives or attorney ; shall describe the judgment, and require 
 the person summoned to show cause, within twenty days after the 
 service of the summons ; and shall be served in like manner as the 
 original summons. 
 
 § 37S. (Being § 331 of 1848.) The summons shall be accom- 
 panied by an affidavit of the person subscribing it, that the judg- 
 ment has not been satisfied, to his knowledge or information and 
 belief, and shall specify the amount due thereon. 
 
 § 379. (Being § 333 of 1848.) Upon such summons the party sum- 
 moned may answer within the time specified therein, denying the 
 judgment or setting up any defense which may have arisen subse- 
 quently ; and, in addition thereto, if he be proceeded against accord- 
 ing to' section 328, he may make the same defense which he might 
 have originally made to the action. 
 
 (Am'd in 1849 and 1866.) 
 
272 CODE OP PEOCBDUBE. [§§ 379-381. 
 
 § 379. (As am'd in 1849.) Upon such summons the party sum- 
 moned may answer within the time specified therein, denying the 
 judgment, or setting up any defense which may have arisen subse- 
 quently; and in additioii thereto, if he be proceeded against accord- 
 ing to section 375, he may make the same defense which he might 
 have originally made to the action, except the statute cf limitations. 
 
 § 379, (As am'd in 1866.) Upon such summons, any party sum- 
 moned may answer within the time specified therein, denying the 
 judgment or setting up any defense thereto which may have arisen 
 subsequently to suehju^ment; and in addition thereto, if the party 
 be proceeded against, according to section 375, he may make any 
 defense which he might have made to the action if the swrmrums had 
 been sened on him at the time when the same was originally amvmerused, 
 ojnd such defense had been then interposed to siu^ action. 
 
 % 380. (Being § 333 of 1848.) The party issuing the summons may 
 reply to the answer, and the issue thereon may be tried, and judg- 
 ment given, in the same manner as in an action. 
 
 (Am'd in 1849.) 
 
 § 380. (As am'd in 1849.) The party issuing the summons may 
 demwr or reply to the answer, amd the paHy summoned ma/y demwrto 
 the reply ; and the ismes may be tried and judgment may be given, 
 in the same manner as in an action, amd enforced by execution, or the 
 application of the property charged to the payment of the judgment 
 may be compelled by attaehment, if necessary. 
 
 % 381. (Bemg § 334 of 1848.) The answer and reply shall be veri- 
 fied in like manner, and be subject to the same rules, as the answer 
 and reply in an action. 
 
 (Am'd in 1848.) 
 
 § 381. (As am'd in 1849.) The answer and reply shall be verified 
 in the like cases and manner, and be subject to the same rules, as the 
 answer and reply in an action. 
 
§§ 382-384.] CODB OF pkocedubb. 213 
 
 CHAPTER ni. 
 
 Confessum of Judgment mtJumt AeUon. 
 
 Section 382. Judgment may be confessed for debt due or contingent liability. 
 383. Statement in writing, and form thereof. 
 381 Filing same, and entering judgment. 
 
 § 3§2, (Being § 335 of 1848.) A judgment by confession may be 
 entered without action, eitlier for money due or to become due, 
 or to secure any person against contingent liability on behalf of the 
 defendant, or both, in the manner prescribed by tliis chapter. 
 
 I 383. (Being § 336 of 1848.) A statement in writing must be 
 made, signted by the defendant, and verified by his oath, to the fol- 
 lowing effect : 
 
 1. It must state the amount for "which judgment may be entered, 
 and authorize the entry of judgment therefor. 
 
 8. If it be for money due or to become due, it must state con- 
 cisely the facts out of which it arose, and must show that the sum 
 confessed therefor is justly due, or to become due. 
 
 3. If it be for the purpose of securing the plaintiff against a con- 
 tingent liability, it must state concisely the facts constituting the 
 liability, and must show tliat the sum confessed therefor does not 
 exceed the same. 
 
 § 384 (Being § 387 of 1848.) The statement may be filed with a 
 county clerk, who shall indorse upon it and enter in the judgment 
 book a judgment of the supreme cotirt, for the amount confessed, 
 with five dollars costs. The statement and affidavit, with the judg- 
 ment indorsed, shall thereupon become the judgment roll. 
 
 (AmM in 1849 and 1851.) 
 
 §384 (Asam'd inl849.) Thestatementmaybefiledwithacounty 
 clerk, or witt <A« clerk of the superior court of the c% of New York, who 
 shall indorse upon it, and enter in the judgment book, a judgment of 
 the supreme or mid tuperior court, for the amount confessed, with five 
 dollars coste. The statement and affidavit, with the judgment in- 
 dorsed, sliall thereupon become the judgment roll. 
 
 § 384k (As ara'd in 1851.) The statement may be filed with a county 
 clerk or with a clerk of the superior court of the city of New York, 
 
274 CODE OP PEOCEDUEE. [§ 385. 
 
 who shall indorse upon it and enter in the judgment book a judgment 
 of the supreme or said superior court, for the amount confessed with 
 Sve dollars costs, together with diabursementa. The statement and affi- 
 davit, with the judgment indorsed, shall thenceforth become the judg- 
 ment roll. ExeouUons may be issued and enforced thereon, in the same 
 manner as wpon judgments in other cases in such courts. When ffie 
 debt for which the judgm:mt is recovered is not all due, or is payable in 
 instalments, and the installments are not aU diie, the eaiecitUion mmy 
 issue upon miehjv^ment for the collection of such instaUments as ham 
 become due, and shaU be in the unial form, but shaZl heme indorsed 
 thereon, by the altmmey or person issuing the sa/me, a direction to the 
 sheriff to colleel the amount due on such judgment, with interest and 
 costs, which amount shaU be stated with interest thereon and the costs 
 ef said judgment. NotimthstamMng the issue amd cdClectisn of mdi 
 exemtion, the judgment shdJl remain as seewrity for the instaUments 
 thereafter to become due ; amd wheneee/r any fwrther installmients become 
 due, execution may in Uke manner be ismed for the coUeetion and en- 
 forcement of the same. 
 
 CHAPTER rV. 
 
 Offers of the Defendant to Oom/promise4he whole or a part of the Action. 
 
 Skgtion 385. Defendant niAy serve offer to corapromise, and the proceedinga 
 tliereon. 
 3S6. Defendant may offer to liquidate damages conditionally. 
 387. Effect of acceptance or refusal of offer. 
 
 § 385. (Being § 338 of 1848.) In an action arising on contract, the 
 defendant may at any time before trial or judgment, serve upon 
 the plarntilf an offer in writing to allow judgment to be taken against 
 him for the sum, or to the effect therein specified. If the plaint- 
 iff accept the offer, and give notice thereof within ten days, he may 
 file the summons, complaint and offer, with an affidavit of notice of 
 acceptance, and the clerk shall thereupon enter judgment accord- 
 ingly. If the notice of acceptance be not given, the offer shall be 
 deemed withdrawn, and shall not be given In evidence ; and if the 
 plaintiff faU to obtain a more favorable judgment he shall pay the 
 defendant's costs from the time of the offer. 
 
 (Am'd in 1851 and 1866.) 
 
 § 385. (As am'd in 1851.) The defendant may at any time before 
 the trial or verdict, serve upon the plaintiff an offer in writing to allow 
 
§§ 385, 386.] CODE op pboceduee. -215 
 
 judgment, to be taken against him for the smn or property, or to the 
 efifect therein specifted, v>it/i costs. If the plaintiff accept the offer 
 and give notice thereof in writing, within ten days, he may file the 
 snmmops, complaint and offer, with an affidavit of notice of accept- 
 ance, and the clerk rmist thereupon enter judgment accordingly. If 
 the notice of acceptance be not given, the offer is to be deemed with- 
 drawn, and cannot be given in evidence ; and if the plaintiff fail to 
 obtain a more favorable judgment he cannot recover costs, but miist 
 pay the defendant's costs from the time of the offer. 
 
 § 385. (As am'd in 1866.) The defendant may at any time before 
 the trial or verdict, serve upon the plaintiff an offer, in writing, to 
 qllow judgment to be taken against him for the sum or property 
 or to the effect, therein specified, with costs. Jf the plaintiff accept 
 the offer, and give notice thereof in writing within ten days, he may 
 file the summons, complaint and offer with an affidavit of notice of 
 acceptance, and the clerk must thereupon enter judgment accord- 
 ingly. If the notice of acceptance be not given, the offer is to be 
 deemed withdrawn, and cannot be given in evidence ; and if the 
 plaintiff fail to obtain a more favorable judgment he cannot recover 
 costs, but must pay the defendant's costs from the time of the offer i 
 and in case the defendant shaU set up a counterclaim in his answer to 
 an amount greater than the plaintiff's daim, or sufficient to reduce the 
 plaintiff's recovery below fifty dollars, then the plaintiff may serve upon 
 Sie defendant an offer in writing to aUow judgment to be taken against 
 hxm for the amount specified, or to aUow said counterclaim to the 
 ammmt specified, with costs. If the defendant aecept the offer, and give 
 notice thereof in writing within ten days, he may enter judgment as 
 (ibove for the amount specified, if the offer entitle him to judgment, or 
 the amount specified in said offer shall be allowed him in the trial of 
 the action. If the notice of aeceptance be not given, the offer is to be 
 deemed withdrawn, and cannot be given in emdence ; and if the defend- 
 ant fail to recover a more favorable judgment or to establish his coun- 
 terclaim for a greater am/mnt than is specified in said offer, he cannot 
 recover costs, but must pay the plaintiff's costs from the time of the 
 offer. 
 
 § 3S6. (Being § 339 of 1848.) In an action arising on contract, 
 the defendant may, with his answer, serve upon the plaintiff an 
 offer in writing, that if he fail in his defense, the damages be assessed 
 at a specified sum; and if the plaintiff signify his acceptance 
 
2'76 CODE OF PEOOBmTEE, [§§ 387, 388, 
 
 thereof in writing, with or before the iiotice df trial, and on the 
 trial have a verdict, the daniageB shall be assessed accordingly. 
 
 I 387. (Being §340 of 1848.) If the plaintiff do not accept the 
 offer, he shall prove his damages, as if it had not been made, and 
 shall not be permitted to give it in evidence. And if the damages 
 assessed in his favor shall not exceed the smn mentioned in the offer, 
 the defendant shall recover his expenses, incmred in consequence 
 of any necessafy preparation or defense in respect to the question 
 of damages. Such expenses shall be ascertained at the trial. 
 
 CHAPTER V. 
 
 Admission or Inspection of Writings, 
 
 Skotiob 388. A party- may be required to admit a paper to be genuine, or pay 
 expense o{ proring it ; Inspection and copy of books, papers and 
 docnments, how obtained. 
 
 § 388. (Being §| 341 and 343 of 1848.) Either party may exhibit to 
 the other, or to his attorney, at any lime before the trial, any paper 
 material to ttie action,ahd request an admission in writing of ite 
 genuineness. If the adverse party, or his attorney, fail to give the 
 admission, within four days after the request, and if the party exhib- 
 iting the paper be afterwards put to expense 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. The 
 court before which an action is pending, or a judge or justice there- 
 of, Inay, 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 paper In his possession, or under 
 his control, containing ievidence relating to the merits of the acUon, 
 or the defense therein.' If compliance wifli the order be refused, 
 the cdurt, on motion, may exclude the paper from being given in 
 evidence, or punish the party refusing, or both. 
 
 (Am'd in 1849.) 
 
 g 38S. (As am'd in 1849:) Either party may exhibit to the other, 
 or to his attohiey, at any tiilie before the trial, any paper, material 
 to the aetioii, and request an admission in writing of its genuine- 
 
§§ 389, 300.] CODE O^ PBOCEDUEE. 27' 
 
 ness. If the adverse party, or his attorney, faU to give the admis- 
 sion, within four days after the request, and if the party exhibiting 
 the paper be afterwards put to expense in order to prove its genu- 
 ineness, 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 reasoins for the refusal. The court 
 before which an action 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 per- 
 mission to take a copy, of any hooks, papers a/nd documents in his pos- 
 session, or under his control, containing evidence relating to the 
 merits of the action, or the defense therein. If compliance with 
 the order be refused, the court, on motion, may exclude the paper 
 from being given in evidence, or punish the party refusing, or both. 
 
 CHAPTER VI. 
 Examination of Pa/Hies. 
 
 Section 389. Actions for discovery abolisiied. 
 
 390. A party may examine his adversary as a witness on t}ie trial. 
 
 391. Such examination also allowed before trial ; proceedings therefor. 
 
 392. Party, how compelled to attend. 
 
 393. Testimony of party may be rebntted* . - 
 
 394. Effect of refusal to testify. 
 
 895. Testimony by a party, not responsive \xt the inqtairies; may be ro- 
 
 bntted by the oath of the party calling him. 
 
 896. Persons for whom action is brought or defended niay be examined. 
 397. Examination of co-plaintiff or co-defendant. 
 
 § 3§9, (Being § 848 of 1848.) ito action to obtain discovery un- 
 der oath, in aid of the prosecution or defense of another action, 
 shall be allowed, nor shall any examination of a party be had, on 
 behaU of the adverse party, except in the manner prescribed by 
 this chapter. 
 
 § 89*. (Being | 844 of 1848.) A party to an action may be ex- 
 amined as a witness, at the instance of the adverse party, or of any 
 one of several adverse parties, and for that purpose may be com- 
 pelled, in the same manner, and subject to the. same, rule^ of ex- 
 amination, as any other witness, to testify, either at the trial, or 
 conditionally, or upon commission. 
 24 
 
2V8 CODE OF PEOCEDUBE. [§§ 391-393. 
 
 I 391. (Being § 345 of 1848.) The examination, instead of being 
 had as provided in the last section, may be had at any time before 
 the trial, at the option of the party claiming it, before a judge of 
 the court;, or a county judge, on a previous notice to the party to 
 be examined, 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. 
 
 (Am'd in 1849.) 
 
 § 391. (As am'd in 1849.) The examination, instead of being 
 had ai the trial, as provided in the last section, may be had at any 
 time before the trial, at the option of the party claiming it, before a 
 judge of the court, or a county judge, on a previous notice to the 
 party to be examined, 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. 
 
 § 393. (Being § 346 of 1848.) The party to be examined, as in the 
 last section provided, may be compelled to attend in the same 
 manner as a witness who is to be examined conditionally ; and the 
 examination shall be taken and filed in like manner, and may be 
 read by either party on the trial. " 
 
 (Am'd in 1849.) 
 
 § 392. (As am'd in 1849.) The party to be examined, as in the 
 last section provided, may be compelled to attend in the same 
 manner as a witness who is to be examined conditionally ; and the 
 examination shall be taken and filed by the judge in like manner, 
 and may be read by either party on the triaL 
 
 § 393. (Being § 348 of 1848.) The exammation of the party may 
 be rebutted by adverse testimony. 
 (Am'd in 1849.) 
 
 I 393. (As am'd in 1849.) The examination of the party ihut 
 taken may be rebutted by adverse testimony. 
 
§§ 394-396.] CODE OF PEOCEDTJKB. 2^9 
 
 § 394 (Being § 347 of 1848.) If a party refuse to attend and tes- 
 tify, as in the last three sections provided, besides being punished 
 himself as for a contempt, his complaint, answer, or reply may be 
 rgected. 
 
 (Am'd in 1849.) 
 
 § 394. (As am'd in 1849.) If a party refuse to attend and testify, 
 as in the last four sections provided, he Tnay be punished as for a 
 contempt, ani his complaint, answer, or reply may be stricken out. 
 
 § 395. (Being § 349 of 1848.) A party examined by an adverse 
 party, as in this chapter 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 inquiries put to 
 him by the adverse party, such adverse party may offer himself as 
 a witness on his own behalf in respect to the new matter, and shall 
 be so received. 
 
 (Am'd m 1849 and 1863.) 
 
 § 395. (As am'd in 1849.) A party examined by an adverse party, 
 as in this chapter 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 inquiries put to him by the 
 adverse party, or necessary to explain or qualify Ids answers thereto, 
 or discha/rge when his answers wovM charge himself, such adverse 
 party may offer himself as a witness on his own behalf in respect 
 to such new matter, and shall be so received. 
 
 § 395, (As am'd in 1863.) A party examined by an adverse 
 party, as in this chapter provided, may be examined on his own 
 behalf, subject to the same rules of eosaminatioti as other witnesses. 
 But, if he testify to any new matter, not responsive to the inquiries 
 pvrt to him by the adverse party, or necessary to explain or qualify 
 Ms answers thereto, or discharge when' his answers would charge 
 himself, such adverse party may offer himself as a witness on his 
 own behalf in respect to such new matter, subject to the same rules 
 of exanunaHon as other witnesses, and. shall be so received. 
 
 § 396. (Being | 350 of 1848.) A person for whose immediate 
 benefit the action is prosecuted or defended, though not a party to 
 
280 CODE OP PEOCKDUEB. [% 391. 
 
 the actioA, may be examined as a witness, in the same manner, and 
 Bubject to the same rides of examination, as if he were named as a 
 party. 
 
 § 397. (Added in 1849.) A party may be examined on behalf of 
 his co-plaintiff or a co-defendant, but the examination thus taken 
 shall not be used on behalf of the party examined; And when- 
 ever, in the case mentioned in sections 390 and 391, one of several 
 plaintiffs or defendants, who are joint contractors, or are united 
 in interest, is examined by the adverse party, the other of such 
 plaintiffs or defendants may offer themselves' as witnesses to the 
 same cause of action or defense, and shall be so received. 
 
 (Am'd in 1851 and 1853.) 
 
 § 397. (As am'd in 1851.) A party may be examined on behalf of 
 his co-plaintiff or a co-defendant, as to any matter in which he is 
 not jointly interested or liable with such co-plaintiff or co-defend- 
 ant, and as to which a separate and not joint verdict or judgment 
 shall be rendered. And he may be compelled to attend in the same 
 manner as at the instance of an adverse party, but the examination 
 thus taken shall not be used in behalf of the party examined, unless 
 he is examined at the instance of the adverse party. 
 
 I 397. (As am'd in 1852.) A party may be examined on behalf 
 of his co-plaintiff or ol a co-defendant, as to any matter in which 
 he is not jointly interested or liable with such co-plaintiff or co- 
 defendant, and as to which a separate and not joint verdict or 
 judgment can be rendered. And he may be compelled to attend in 
 the same manner as at the instance of an adverse party, but ^he 
 examination thus taken shall not be used in the behalf of the party 
 examined. And whenever, in the case mentioned in sectums 390 and 
 891, one of »meral plaintiffs or defendamts, who are ydnt amiraetori, 
 or a/re united in interest, is exammed by the adverse party, the other of 
 such plaintiffs xir defendants may offer himself as a witness to Hie same 
 cause of .action or defense, and shall be so received. 
 
§§ 398, 399.] C0D£ OP PBOCBDUEB, 281 
 
 CHAPTER Vn. 
 
 Mxammation of Witnessei. 
 
 Sbction 398. No witness to be ezcladed by reason of Interest. 
 399. To whom last section inapplicable. 
 
 1 398. (Being § 351 of 1848.) No person offered as a witness shall 
 be excluded by reason of his interest in the event of the action. 
 (Am'd in 1869.) 
 
 I 398. (As am'd in 1869.) No person offered as a wltaess in uny 
 advm, or proceeding in any court or i^are amy officer axMng jvMaicffly, 
 shall be excluded by reason of his interest in the event of the action , 
 or proceeding, or because he is a pa/rty thereto, except as is promted in, 
 the next foUoteing section of this act. Nothing contained in the eiighCh 
 section, of tMs act sJiaU be held or construed to affect or limit the opera- 
 tion qf this or the next foUowing section. 
 
 § 399. (Being § 352 of 1848.) The last section shall not apply to a 
 party to the action, nor to any person for whose inunediate benefit 
 it is prosecuted or defended, nor to any assignor of a thing in ac- 
 tion assigned for the purpose of making him a witness. 
 
 (Am'd m 1851, 1857, 1858, 1859, 1860, 1862, 1863, 1865, 1866, 1867, 
 1869.) 
 
 §399. (As' am'd in 1851.) The last section shall not apply to a 
 party to the action, nor to any person for whose immediate benefit it 
 is prosecuted or defended. When an dssigrior of a thing in aeiion 
 or contract is examined as a witness, on beJudf of any person deriving 
 t^ through or from him, the adverse party may offer himself as a wit- 
 ness to the same matter in his own behalf, and shall be so received. But 
 guch assignor shaM not be admitted to be examined in behalf of any per- 
 son derimng tide through or from him against an assignee or an exea- 
 utor or administrator, unless the other party to such contract or thing 
 in action, whom the defendant or plaintiff represents, is limng, amd his 
 testimony cam, be procured for such examination, nor unless at least ten 
 dayi notice qf such intended exammaMon cf the assignor, specifying the 
 points upon which he is intended to be etcamined, shM be giieen in wriHng 
 
 to the a/deerse pwrty. 
 
 24* 
 
282 CODE OF PEOCEDUKE. [§ 399. 
 
 § 399. (As am'd in 1857.) A party to^ an acUon or proceeding may 
 he examined as a witness in his own behalf, the same as any other wit- 
 ness, but such examination shaU not be had, nor shaM any other person, 
 far whose immediate benefit the same is prosecuted or defended, be so 
 examined, unless the adverse paHy or person in interest is living, nor 
 when the opposite paHiy shaU be the assignee, administrator, executor or 
 Ugal representative cf a deceased person, nor unless ten dayi notice of 
 such intended exammaMon of the pa/riy or person interested, specifying 
 the points upon which siich party or person is intended to be examined, 
 shall be given in writing to the adverse party, except that, in special pro- 
 ceedings of a summary nature, such reasonaible notice of such intended 
 exammaUon shall be given as shaU be prescribed by the cov/rt or judge. 
 And, when, notice of such intended examinaMon shaU be given in an 
 action or proceeding in which the opposite party shaU reside out of the 
 jwisdietion of the court, suah party may be examined by commission, 
 issued and executed as now provided by lomi ; amd, whenever a party or 
 person in interest has been examined under the provisions of this section, 
 the other party or person in interest m^ay offer himself as a witness in 
 his own behalf, and shaU be so received. When an assignor of a 
 thing in action or contract is examined as a witness on behalf of 
 any person deriving title through or from him, the adverse party 
 may offer himself as a witness to the same matter in his own 
 behalf, and shall be so received, and to any matter that wiU discharge 
 him from any liability that the testimony of the assignor tends to 
 render him Uable;^. But such assignor shall not be admitted, etc. 
 (as in 1851). 
 
 § 399. (As am'd in 1858.) Same as § 399, as amended in 1857, ex- 
 cept that after the words " ten days' notice," whenever they occurred 
 therein,- the following words were inserted: "if the acHonbeina 
 court of record, and in aM other cases, four days' notice.'" 
 
 § 899. (As am'd in 1859.) A party to an action or proceeding 
 may be examined as a witness in his own behalf, the same as any 
 other witness ; but such examination shall not be had, nor shall any 
 other person, for whose immediate benefit the same is prosecuted 
 or defended, be so examined unless the adverse party or person in 
 interest is living, nor when the opposite party shall be the assignee, 
 administrator, executor or legal representative of a deceased per- 
 son. And when, in any action or proceeding, the opposite party 
 Bhall reside out of the jurisdiction of the court, such party may 
 
§ 399.] CODE OP PROCEDXJKE. 283 
 
 be examined by commission issued and executed as now pro- 
 vided by law ; and, whenever a party or person in interest has been 
 examined under the provisions of this section, the other party or 
 person in interest may offer himself as a witness in his own behalf 
 and shall be so received. When an assignor of a thing in action or 
 contract is examined as a witness on behalf of any person deriving 
 title through or from him, the adverse party may offer himself as a 
 witness to the same matter in his own behaU, and shall be so 
 received, and to any matter that will discharge him from any lia- 
 bility that the testimony of the assignor tends to render him liable 
 for; but such assignor shall not be admitted to be examined in 
 behalf of any person deriving title through or from liim against an 
 assignee or an executor or administrator, unless the other party to 
 such contract or thing in action whom the defendant or plaintiff 
 represents ; is living, and his testimony can be procured for such 
 examination, nor unless at least ten days' notice of such intended 
 examination of the assignor shall be given in writing to the ad- 
 verse party. 
 
 § 399. (As am'd in 1860.) A party to an action, or special proceed- 
 ing, induding proceedings awrrogcdei eowrts, and proceedings for ^ 
 tumma/ry recovery of the possession of land, may be examined as a 
 witness on his own behalf, or in behalf of any other party, in the same 
 manner, and subfect to the same rules of examination, as any other 
 witnesses ; except that a party shall not he examined against parties who 
 are represemtaU'ces of a deceased person, in respect to any transactions 
 hadjpersonaUy betioeen the deceased person and the witness; and wceept, 
 also, that neither htuiband nor wife shall be required to disclose any com- 
 munication m.ade by one to the other. 
 
 % 399. (As am'd in 1863.) A party to an action or special proceed- 
 ing, including proceedings in surrogates' courts and proceedings for 
 the summary recovery of the possession of land, may be examined 
 as a witness on his own behalf, or in behalf of any other party, in 
 the same manner, and subject to the same rules of examination, as 
 any other witnesses ; provided, h/ncever, that the assignor of a thing in 
 action shaU not be examined in behalf of said party, nor shall a party to an 
 action be examined in his own behalf, in respect to any trarisaction or com- 
 municaMon had personally hy said asxigrwr or said-pa/rty, respectively, with 
 a deceased person against parties who are the executors, adTiamistratort!; 
 
284 CODE OP PEOCBDUEB. [§ 399. 
 
 WreiaJtow), next of Mn Or aemgneei iif mieli deceased perxm, where flwy 
 hose acquired tiUe to the edueeof action immediateHy from said deceased 
 person, or ham been sued as meheaeeiutors, adM,inistrdtors,hMrs at law, 
 next of Mn or asmgnees. Biit where sfueh eixcutors, administraUyrs, 
 heiirs at lam, next of Tdn or assignees shdU be examined on theiir own 
 behalf' in rega/rd to a/ny conversation or transaction had bekceen the 
 deceased person and said assignor, or ffiid party, respectively, then the 
 said assignor, or the said parly, may be examined in regard to such 
 con/cersation or transaction, but not in regard to amy new matter. 
 
 % 399. (As am'd in 1863.) Same as § 399, as amended in 
 except- that the following words were added thereto : 
 
 "But if the testimony of a party to the action or proceeding' has 
 beeto taken, and he shall afterwards die, and after his death the tes- 
 timony so taken shall be used upon any trial or hearing in behalf of 
 his executors, administrators, heirs at law, next of kin or assignees, 
 the other party, or the assignor of a thing in action, shall be a com- 
 petent witness, as to any and all matters to which the testimony so 
 taken relates, notwithstanding any thin^ in this section contained 
 to the contrary thereof." 
 
 § 399. (As am'd in 1865.) A party to an action or special proceed- 
 ing, in any and all courts, and before any and all tribunals, and before 
 amy and aU officers, acting jvdiciaMy, may be examined as a witness 
 on his own behalf, or in behalf of any other party, in the same 
 manner, and subject to the same rules of examination, as any other 
 witnesses ; provided, however, that the assignor of a thing in action 
 shall not be examined in behalf of said party, nor shall a party 
 to an action be examined in his own behalf in respect to any 
 transaction or communication had personally by said assignor 
 or said party, respectively, with a deceased' persbn, against parties 
 who are the executors, administrators, devisees, heirs at law, next of 
 kin or assignees of such deceased person, where they have iicquiiSed 
 title to the cause of action immediately from said deceased person, 
 or have been sued as such by the executors, administrators, tfocisees, 
 heirs at law, next of kin or assignees. But where such executors, 
 administrators, devisees, heirs at law, next of kin, or assignees, shall be 
 examined on their own behalf, in regard to any conversation or trans- 
 action had between the deceased person and said assignor, or said 
 party respectively, then the said assignor, or the said party may be 
 
§ 399.] CODE OP PEOCBDUBE. 285 
 
 examined in regard to such conversation or transaction, but not in 
 regard to any new matter. But if the testimony of a party to the 
 action or proceeding has been taken, and he shall afterwards diCj 
 and after his death the testimony so taken shall be used upon any 
 trial or hearing in behalf of his executors, administrators, devisees,, 
 heirs at law, next of kin or assignees, the other party, or the assignor 
 of a thing in action shall be a competent, witness as to any and .all 
 matters to which the testimony so taken relates, notwithstanding 
 any thing in this section contained to the contrary thereof. 
 
 And nothing centamed in secMon 8 of tfm act shaU be liM or con- 
 stnied to affect or restrain the ope/raMon of this section. 
 
 § 399. (As amended in 1866.) A party to an action or special pro- 
 ceeding in any and all courts, and before any and all tribunals, and 
 before any and all officers and persons acting judicially, may be 
 examined as a witness on his own behalf, or in behalf of any other 
 party, in the same manner, and subject to the same rules of exam- 
 ination, as any other witness ; provided, however, that the assignor 
 of a thing in action, or any person who has a legal or equitable 
 interest which may be affected by the event of the action, shall not be 
 examined on behalf of the assignee or party, through wltom sm^ 
 interest would be affected, nor shall a party to an action be examined 
 on his own behalf, or in behalf of any other party, in respect to any 
 transaction or communication had personally by said assignor, per- 
 son or said party, respectively, vrith a deceased person, against par- 
 ties who are the executors, administrators, devisees, heirs at law, 
 next of kin or survivor of a person or party jointly interested, 
 or assignees of such deceased person, where they have acquired 
 title to the cause of action, or the subject matter involved in the action, 
 from the deceased person, or party jointly interested, or are sued 
 as or by reason or in consequence of their being such executors, admin- 
 istrators, devisees, heirs at law, next of kin, surviving partners or 
 assignees ; nor in respect to any transaction or communication had per- 
 sonaUy with a person, who, at the time of trial, is an insane person or 
 a lunatic, where the action or proceeding is prosecuted or defended, on 
 the beihaif of such insane person or luv/iMc, nor in any such aciion or 
 proceeding, as against such parties, sh/iU any party or person be-, 
 admitted to testify in rega/rd to such matter, .in behalf of any pa/rty, 
 whose interest in the action or proceeding, either by vokintary actor by 
 legal proceedings, or by operation of law direcUy or indirectly, grows 
 
286 CODE OF PKOCEDUEE. [§ 399. 
 
 out of or it founded wpon a transaetimt ietuoeen the deceased and tJie 
 pari}/ or person edUed as a witness, or grows out of or is founded upon, 
 any prior or present rights or interests of the party or person called as 
 a witness in or to the estate or property that is ths subject of or invoked 
 in the ecmtrav^sy, or where the interest of the party for whom he is 
 called substantiaily represents an interest that the person or pa/rty called 
 as a witness has, or has had, gromng out of the transaction cf the 
 deceased, about which he is called to testify. 
 
 But, where such executors, administrators, devisees, heirs at law, 
 next of kin, swmivors or assignees shall be examined on their own 
 behalf in regard to any conversation or transaction had between the 
 deceased person and said assignor, or said party or persons, respect- 
 ively, then the said asignor, party or person may be examined in 
 regard to such conversation or transaction, but not in regard to any 
 new matter ; but, if the testimony of a party to an action or pro- 
 ceeding shall have been, or shaU he, taken, and he shall afterwards 
 die, and, after his death, the testimony so taken shall be used upon 
 any trial, hearing or proceeding in behalf of his executors, adminis- 
 trators, devisees, heirs at law, next of kin, sundvors or assignees, the 
 other party, the assignor or person, in interest as aforesaid, or the one, 
 through and from wham tTie said rights or interest have heen deri/eed, 
 shall be a competent witness as to any and all matters to which the 
 testimony of the deceased, so taken, relates. And nothing contained 
 in section eight of this act shall be held or construed to aflTect or 
 restrain the operation of this section. And nothing herein contained 
 shall be held or construed to give the right to a party in a criminal 
 action to testify upon the trial thereof. 
 
 % 399. (As am'd in 1867.) A party to an action or special proceed- 
 ing in any and all courts, and before any and all officers and per- 
 sons acting judicially, may be examined as a witness on his _own 
 behalf, or in behalf of any other party, conditionally, on commission 
 and upon the trial or hearing in the case, in the same manner and 
 subject to the same rules of examination as any other witness ; pro- 
 vided, however, that no party to the action or proceeding or any per- 
 son who has a legal or equitable interest which may be affected by 
 the event of the action or proceeding, run- any person who, premous to 
 such examination, has had such an interest, however the same may have 
 been transferred to or come to the pa/rty to the action or proceeding nor 
 any assignor of any thing in controwrsy in the action, shaU be examinM 
 
§, 399.] CODE OP PKOCKDUBE. 287 
 
 in regard to any trangaetion or commumcaMon iettoeen »uch iDitness and, 
 a person, at the time of siich examination, deceased, insane (n- lunatic, as 
 a vntness againM a party tfien prosecuting or defending the action, as 
 executor, administrator, heir at law, next of kin, assignee, legatee, devisee 
 or survivor of such deceased person, or as assignee or committee 
 of such insane person or lunatic, when jucJi exa/mination, or any 
 judgment or determination in such action or proceeding, can in any 
 manner affect the interest of such witness or the interest prenously 
 outned or represented by him. But when such executor, administra- 
 tor, heir at law, next of kin, assignee, legatee, demee, survivor or 
 committee, shall be 'examined on his own hehalf in regard to txuih 
 transaction or communication, or the testimony of sw^t deceased, or 
 insane person or lunatic in regard to such transaction or communication 
 {however the same may have been perpetuated or made competent), shall 
 be given in evidejice on tlie tricU or hearing on behalf of such executor, 
 administrator, hdr at law, next of kin, assignee, legatee, devisee, sur- 
 vivoror committee, then aM other persons not otherwise rendered income- 
 petent shaM be made competent witnesses in relation to such transaction 
 or communication on said trial or hearing. Nothing contained in 
 section 8 of this act shall be held or construed to affect or restrain the 
 operation of this section. 
 
 § 399. (Ab am'd in 1869.) No party to any action or proceeding, 
 nor any person interested in the event thereof, nor any person from, 
 through or under whom any such party or interested person derives 
 any interest or title by assignment or otherwise, shall be esamined 
 as a witness in regard to any personal transaction or communica- 
 tion between such witness and a person, at the time of such exam- 
 ination, deceased, insane or lunatic, against the executor, administra- 
 tor, heir at law, next of kin, assignee, legatee, devisee or survivor 
 of such deceased person, or the assignee or committee of such 
 insane person or lunatic. But this prohibition shall not extend to 
 any transaction or communication as to which any such executor, 
 administrator, heir at law, next of kin, assignee, legatee, devisee,' 
 survivor or committee, shall be examined on his own behalf, or as 
 to which the testimony of such deceased person or lunatic shall be 
 given in evidence. 
 
 (§ 353 of 1848— omitted in 1849. No person residing more than 
 one hundred miles from the place of examination shall be obliged 
 
2S8 CODE OF PKOCEDTTEE. [§ 399. 
 
 to attend as a witness before any court or judgl, except as provided 
 in section 355.) ' 
 
 . (§ 354 of 1848 — omitted in 1849. Whenever either party desires 
 the examination of a witness who shall reside more than one hun- 
 ted miles from the place where the trial or hearing is to be had, 
 he may apply to a judge of the court for an order to examine such 
 witness. Whereupon the judge, on due proof to his satisfaction of 
 the materiality of the witness, may make an order for his examina- 
 tion,, at a specified time and place, before the county judge of the 
 county where the examination is to be had, or "before a justice of 
 the peace or referee residing therein, to be designated by the judge 
 making the order.) 
 
 (§ 355 of 184S— omitted in 1849. A copy of such order shall be 
 forthwith served on the adverse party, and notice of the tinie and 
 place of examination given, according to the provisions of section 
 374. The examination may thereupon be taken by such county 
 judge, justice of the peace or referee, and being certified by him to 
 have been written and subscribed in his presence, amd sworn to 
 before him, and being filed with the clerk, may be read by either 
 party on any trial or proceeding in the action, if the witness be dead 
 or do not reside within one hundred miles of the place of trial or be 
 unable to attend. But the court may, on speciall application, order 
 either party to produce his witnesses, and any such witness to 
 attend in open court, though residing more than one hundred miles 
 from the place of trial, and after such order is made, the written 
 deposition of any witness so ordered to be produced shall not be 
 read.) 
 
 . (§ 356 of 1848— omitted in 1849, If any witness served with such 
 ofder, or an order for his examination out of court, disobey it, he 
 njaybe pjmished by the court or judge as for a contempt, and shaU 
 be liable to all the penalties to which a witness is liable who is duly 
 served with process for his attendance at a court and neglects to 
 attend.) 
 
§§ "466, 401.J CODE OF PEOCBnUEBr 289 
 
 CHAPTER VIII. 
 
 Motions and Orders. 
 
 Sbgtion 400. BefiBition of an order. 
 
 401. Definition of a motion ; motions, how and where made. / 
 
 403. When notice is neceeeary, it mnst he eight days before hearing. 
 
 403. In actions in supreme conrt, county jndge may act at chambers ; 
 
 his orders, how reviewed. 
 
 404. In absence of judge at chambers, motion may be transferred by 
 
 him to another judge. 
 
 405. Enlarging time for proceedings in an action. 
 
 § 400. (Being | 357 of 1848.) Every direction of a court or judge, 
 made or entered in writing, and not included in a judgment, is de- 
 nominated an order. 
 
 § 401. (Being §§ 358 to 363 of 1848.) An application for an order 
 is a motion. 
 
 All motions may be made to the court, at a special term, except 
 upon appeals. 
 
 Motions may likewise be made to a judge or justice out of court, 
 except for a new trial on the merits. 
 
 Motions must be made within the .district in which the action is 
 triable, or in a comity adjoining that in which it is triable, except 
 that where the action is triable in the first judicial district the mo- 
 tion must be made therein. 
 
 Orders may be made upon or without notice, or on an order to 
 show cause, according to the existing practice, except as otherwise 
 provided in this act. No order to stay proceedings for a longer 
 time than ten days shall be granted by a judge out of court, except 
 upon previous notice to the adverse party. 
 
 (Am'd in 1849, 1853, 1858, 1859, 1863, 1867, 1870.) 
 
 § 401. (As am'd in 1849.) An application for an order is a motion. 
 
 Motions may be made in the first judicial district to a jndge or 
 justice out of court, except for a new trial on the merits. ■ - 
 
 Motions must be made within the district in which the action is 
 triable, or ib a county adjoining that in which it is triable, except 
 that where the action is triable in the first judicial district, the 
 motion must be made therein. 
 
 Orders made out of court, without notice, may be made hy any judge 
 tf the court, in any part of the State, and th^iy may also 6e made by a 
 25 
 
290 CODE OP PEOCEDTJEE. [§ 401, 
 
 county judge of the county where the action is triable, except to stay 
 proceedings after a verdict. 
 
 No order to stay proceedings for a longer time than tmenty days 
 shall be granted by a judge out of court, except upon previous 
 )iotice to the adverse party. 
 
 § 401. (As am'd in 1853.) An application for an order is a motion. 
 
 Motions may be made in the first judicial district to a judge or 
 justice out of court, except for a new trial on the merits. 
 
 Motions must be made within the. district in which the action is 
 triable, or in a county adjoining that in which it is triable, except 
 that where the action is triable in the first judicial district, the 
 motion must be made therein ; amd no motion can he made in the first 
 district in, am, action triaile ds&wJiere. 
 
 Orders made out of court, without notice may be made by any 
 judge of the court, in any part of the State ; and they may also be ■ 
 made by a county judge of the county where the action is triable, 
 except to stay proceedings after a verdict. 
 
 No order to stay proceedings for a longer time than twenty days 
 shall be granted by a judge out of court, except upon previous 
 notice to the adverse party. 
 
 § 401. (As am'd in 1858.) The enactment of 1858 reads as follows : 
 " Subdivision 3, 4 and 5 of section 401 of the code of procedure, as 
 amended by chapter 392 of the laws of 1852, is hereby amended so 
 as to read as follows : 
 
 3. Orders made out of court, without notice, may be made by any 
 judge of the court, in any part of the State, and they may also be 
 made by a county judge of the county where the action is triable, 
 except to stay proceedings after verdict. 
 
 4 Motions upon notice must be made within the district in which 
 the action is triable, or in a country [sic] adjoinmg that in which it 
 is triable, except that where the action is triable in the first judicial 
 district, the motion must be made therein, amd no motion upon notice 
 can be made in the first judicial district, in an action triable elsewhere. 
 
 5. In all the districts, a motion to vacate or modify a provisional rem- 
 edy, and an a{ppeal from an order aJlauAng a provisiondl remedy, shaB, 
 hm>e preference over aU other motions." 
 
 % 401. (As am'd in 1859.) Same as § 401, as amended in 1858, 
 except that subdivision 3 was amended so as to read as follows : 
 
§401.] CODE OF PKOCEDUKE. 291 
 
 " Orders made out of court, without notice, may be made by any 
 judge of the court, in any part of the State, and they may also be 
 made by a county judge of the county where the action is triable, 
 w by tlie county judge of the county in which, the attorney for tJw 
 moving party resides, except to stay proceedings after verdict." 
 
 § 401. (As am'd m 1863.) Same as § 401, as amended in 1859, ex- 
 cept that the following words were added thereto at the end thereof : 
 
 When any party intends to make or oppose a motion in any court 
 of record, and it shall be necessary for him to have the aiBdavit of 
 any person who shall have refused to make the same, such court 
 may by order appoint a referee to take the affidavit or deposition of 
 such person. Such person may be subpoenaed and compelled to 
 attend and make an affidavit before such referee, the same as before 
 a referee to whom it is referred to try an issue. And the fees of 
 such referee for such service shall be three dollars per day. 
 
 g 401. (As am'd in 1867.) Same as § 401, as amended in 1862, ex- 
 cept that subdivision 8 was added thereto, reading as follows : 
 
 8. Whenever a motion shall be made in any cause or proceeding 
 in any of the courts of this State, to obtain an injunction order, 
 order of arrest or warrant of attachment, or to vacate, modify or 
 set aside any injunction order, order of arrest or warrant of attach- 
 ment granted in any such case or proceeding, it shall be the duty of 
 the judge before whom such motion is made, to render and make 
 known his decision on such motion, within twenty days after the 
 day upon which such motion shall or may be submitted to him for 
 his decision. 
 
 § 401, (As am'd in 1870.) 1. An application for an order is a 
 motion. 
 
 2. Motions may be made in the first judicial district to a judge or 
 justice out of court, except for a new trial on the merits. 
 
 3. Orders made out of court, without notice, may be made by any 
 judge of the cotirt, in any part of the State, and they may also be 
 made by a coimty judge of the county where the action is triable, 
 or by the county judge of the county in which the attorney for tlie 
 moving party resides, except to stay proceedings after verdict. 
 
 4 Motions upon notice must be made within the district in which 
 the action is triable, or in a country [«c] adjoining that in which it is 
 triable, except that, where the action is triable in the first judicial 
 
292 CODE OF PKOCEDTIKB. [§§ 402, 403. 
 
 district, the motion must be made therein, aad no motion upon 
 notice can be made in the first judicial district, in an action triable 
 elsewherev 
 
 5. In all the districts, a motion to vacate or modify a provisional 
 remedy, and an appeal from an order allowing a provisional remedy, 
 shall have preference over all other motions. 
 
 6. No order to stay proceedings, for a longer time than twenty 
 days, shall be granted by a judge out of court, except to stay pro- 
 ceedings under cm order or judgmemt appealed from, or upon previous 
 notice to the adverse party. 
 
 7. When any party intends to make or oppose a motion in any 
 court of record, and it shall be necessary for him to have the affi- 
 davit of any person who shall have refused to make the same, such 
 court may, by order, appoint a referee to take the affidavit or depo- 
 sition of auch person. Such person may be subpoenaed and com- 
 pelled to attend and make an affidavit before such referee, the same 
 as before a referee to whom it is referred to try an issue. And the 
 fees of such referee for such service shall be three dollars per day. 
 
 8. Whenever a motion shall be inade in any cause or proceeding 
 in any of the courts of this State, to obtain an injunction order, 
 order of arrest or wan-ant of attachment, or to vacate, modify or 
 set aside any injunction order, order of arrest or warrant of attach- 
 ment granted in any such case or proceeding, it shall be the duty of - 
 the judge before whom such motion is made, to render and make 
 known his decision on such motion, within twenty days after the 
 day upon which such motion shall or may be submitted to him for 
 his decision. 
 
 § 403. (Bemg § 363 of 1848.) When a notice of a motion is neces- 
 sary, it must be served five days before the time appointed for the 
 iiearrng ; but the court or judge may, by an order to show cause, 
 prescribe a shorter time. 
 
 (Am'd in 1849.) 
 
 § 402, (As am'd in 1849.) When a notice of a motion is neces- 
 sary, it must be servede^Ai days before the time appointed for the 
 hearing; but the court or judge may, by an order to show cause, 
 prescribe a shorter time. 
 
 § 403. (Being § 364 of 1848.) In an action in the supreme court, 
 a county judge, in addition to the powers conferred upon him by this 
 
§§ 403-405.] CODE OP PKOCED0EE. 293 
 
 act, may exercise, within his county, the powers of a judge out of 
 court, according to the existing practice, except as otherwise pro- 
 vided m this act. And in all cases where an order is made by a 
 county judge, it may be reviewed in the same manner, as if it had 
 been made by a judge of the court 
 (Am'd in 1849.) 
 
 § 40d. (As am'd in 1849.) In an action in the supreme court, 
 a county judge, in addition to the powers conferred upon him by 
 this act, may exercise, within his county, the powers of a judge of 
 the supreme court at chambers, according to the existing practice, 
 except as otherwise provided in this act. And in all cases where 
 an order is made by a county judge, it may be reviewed in the same 
 manner as if it had been made by a judge of the supreme court. 
 
 § 404. (Being § 365 of 1848.) When notice of a motion is given, 
 or an order to show cause is returnable, before a judge out of court, 
 and, at the time fixed for the motion, he is absent, or unable to hear 
 it, the same may be transferred, by his.order (or, if no order be made, 
 by a notice from either party to the other, of not less than five days), 
 to some other judge, before whom the motion might originally have 
 been made, as provided in section 361. 
 
 (Am'd in 1849.) 
 
 § 404. (As am'd in 1849.) When notice of a motion is given, or 
 an order to show cause is returnable, before a judge out of court, 
 and, at the time fixed for the motion, he is absent, or imable to hear it, 
 the same may be transferred, by his order, to some other judge 
 before whom the motion might originally have been made. 
 
 § 405. (Being § 366 of 1848.) The time withm which any pro- 
 ceeding in an action must be had, after its commencement, and 
 before judgment, except the time within which an appeal must be 
 taken, may be enlarged, upon an affidavit showing grounds therefor, 
 by a judge of the court, or, if the action be in the supreme court, by 
 a county judge: The affidavit, or a copy thereof, must be served 
 with a copy of the order, or the order may be disregarded. 
 
 (Am'd in 1849.) 
 
 §-405. (As am'd in 1849.) The time within which any proceeding 
 in an action must be had, after its commencement, except the time 
 25* 
 
294 CODB OF PROCBDUKE. [§§ 406-408. 
 
 •within which an appeal must be taken, may be enlarged, upon an 
 affidavit showing grounds therefor, by a judge of the court, or, if the 
 action be in the supreme court, by a county judge. The affidavit, 
 or a copy thereof, must be served with a copy of the order, or the 
 order may be disregarded. 
 
 CHAPTER IX. 
 
 Sectiok 406. AffidavitB defectively entitled, valid. 
 
 § 406. (Being § 367 of 1848.) It shall not be necessary to entitle 
 an affidavit in the action; but an affidavit made without a title, or 
 with a defective title, shall be as valid and effectual, for every pm-- 
 pose, as if it were duly entitled, it it intelligibly refer to the action 
 or proceeding in whicli it is made. 
 
 CHAPTER X. 
 
 OonvputaMon of Wme. 
 Section 407. Time, how computed. 
 
 § 407, (Being § 368 of 1848.) The time within which an act is to 
 be done, as herein provided, shall be computed by excluding the 
 first day and including the last. If the last day be Sunday, it shall 
 be excluded. 
 
 CHAPTER XI. 
 
 Notices, and Mling and Sermee of Papers. 
 
 Sectiok 408, 409. Notices and other papers, how served on partry or attorney. 
 410, 411. When and how served by mail. 
 
 412. Double time when served by mail. 
 
 413. Bight days' notice of motion, etc., before court or judge, when 
 
 personally served. 
 
 414. Where papers need not be served on defendant. 
 
 415. Service of papers where party resides out of the State. 
 
 416. Summons and pleadings to be Sled within ten days after service. 
 
 417. Service, where party appears by attorney. 
 
 418. This chapter not to apply to summons or process, or to papers to 
 
 bring party into contempt. 
 
 § 40S. (Being § 369 of 1848.) Notices shall be in writmg; and 
 notices and other papers may be served on the party or attorney, 
 
§§ 409-411.J CODE OF PKOCED0EB. 295 
 
 in the maimer prescribed in the next three sections, where not 
 otherwise provided by this act 
 
 § 409. (Being § 370 of 1848.) The service may be personal, by 
 delivery to the party or attorney on whom the service is required 
 to be made, or it may be as follows : 
 
 1. If upon an attorney, It may be made during Ms absence from 
 his office, by leaving the paper with his clerk therein, or with a 
 person having charge thereof ; or when there is no person in the 
 office, by leaving it, between the hours of six in the morning and 
 nine in the evening, in a conspicuous place in the office, or if _it be 
 not open, so as to admit of such service, then by leaving it at the 
 attorney's residence with some person of suitable age and dis- 
 cretion. 
 
 2. If upon a party, it may be made by leaving the paijer at his 
 residence, between the hours of six in the morning and nine in the 
 evening, with some person of suitable age and discretion. 
 
 (Am'd in 1849.) 
 
 § 409. (As am'd in 1849.) The service may be personal, or by 
 delivery to the party or attorney on whom the service is required 
 to be made, or it may be as follows : 
 
 1. If upon an attorney it may be made during his absence from 
 his office, by leaving the paper with his clerk therein, or with a 
 person having charge thereof ; or when there is no person iu the 
 office, by leaving it, between the hours of six in the morning and 
 nine in the evening, in a conspicuous place in the office, or if it be 
 not open, so as to admit of such service, then by leaving it at the 
 attorney's residence with some person of suitable age and discretion. 
 
 3. If upon a party, it may be made by leaving the paper at his 
 residence, between the hours of six in the morning and nine in the 
 evening, with some person of suitable age and discretion. 
 
 § 410. (Being § 371 of 1848.) Service by_ mail may be made 
 where the person making the service and the person on whom it 
 is to be made reside in different places, between which there is a 
 regular communication by mail. 
 
 § 411. (Being § 373 of 1848.) In case of service by mail, the 
 paper must be deposited in the post-office, addressed to the per- 
 son on whom it is to be served, at his place of residence, and the 
 postage paid. 
 
296 COUJS OF-PKOCEDUEB. [§§ 412-415^ 
 
 § 413. (Being § 373 of 1848.) Where a paper is served; by mail it 
 shall be double the time required in cases of personal service. 
 (Am'd in 1849 and 1859.) 
 
 § 413. (As am'd in 1849.) Where the service is by mail, it shall be 
 double the time required in cases of personal service. 
 
 § 412. (As am'd in 1859.) Where the service is by mail, it shall 
 be double the time required in cases of personal service, accept ser- 
 moe of notice of Mai, which may be made siisteen days before the day 
 of trial, inclniding the day of service. 
 
 § 413. (Being § 374 of 1848.) Notice of a motion or other pro- 
 ceeding before a court or judge, when personally served, shall be 
 given at least five days before the time appointed therefor, if the 
 person to be served reside within fifty miles of the place where the 
 hearing is to be had, and for every additional fifty miles one day 
 shall be added to the time of notice. 
 
 (Am'd m 1849.) 
 
 § 413. (As am'd in 1849.) Notice of a motion, or other proeeed- 
 ding, before a court or judge, when personally served, shall be 
 given at least eight days before the time appointed therefor. 
 
 § 414. (Being § 375 of 1848.) Where a defendant shall not have 
 answered, service of notices or papers, in the ordinary proceedings > 
 in an action, need not be made upon him, unless he be imprisoned 
 for want of bail. 
 . (Am'd in 1849.) 
 
 § 414. (As am'd in 1849.) Where a defendant shall not have 
 demwrred or answered, service of notice or papers, in the ordinary 
 proceedings in an action, need not be made upon him, unless he be 
 imprisoned for want of bail, but shall be madev/pon him or his oMor- 
 ney, if notice of appea/rdnce in the action haa been given. 
 
 § 415. (Being § 376 of 1848.) Where a plaintiff or a defendant who 
 has demurred or answered, resides out of the State, and has no 
 attorney in the action, the service may be made on the clerk for the 
 party. 
 
 (Am'd in 1849.) 
 
§§ 415-419.] CODE OF PKOCKDUKE. 297 
 
 § 415. (As am'd in 1849.) Where a plaintiff or a defendant who has 
 demurred or answered, or gives notice of appearance, resides out of 
 the. State, and has no attorney in the action, the service may be 
 made by mail, if Ma residence be known, if not known, on the clerk 
 for the party. 
 
 § 416. (Being g 377 of 1848.) The summons, and the several 
 pleadings in an action, shall be filed with the clerk within ten 
 days after the service thereof, respectively, or the adverse party, 
 on proof of the omission, shall be entitled, without notice, to an 
 order from a judge that the same be filed within a time to be 
 specified in the order, or be deemed abandoned. 
 
 § 417. (Being § 378 of 1848.) Where a party shall have an attor- 
 ney in the action, the service of papers shall be made upon the 
 attorney, instead of the party. 
 
 § 418. (Being § 379 of 1848.) The provisions of this chapter 
 shall not apply to the service of a summons, or other process, or 
 of any paper to bring a party into contempt. 
 
 CHAPTER XII. 
 
 Duties of Sheriffs and Coroners. 
 
 SBOTiojf 419. Duty of sheriff and coroner in serving or ezecnting process, and 
 how enforced. 
 
 § 419. (Being § 380 of 1848.) Whenever, pursuant to this act, the 
 sheriff may be required to serve or execute any summons or oraer, 
 or to do any other act, -he shall be bound to do so in like manner 
 as upon process issued to him, and shall be equally liable in all 
 respects for neglect of duty ; and if the sheriff be a party, the 
 coroner shall be bound to perform the service, as he is now bound 
 to execute process, where the sheriff is a party. 
 
 (Am'd in 1849.) 
 
 1 419. (As am'd in 1849.) Whenever, pursuant to this act, the 
 sheriff may be required to serve or execute any summons, order or 
 ,jud,gm,eni, or to. do any othw, act,lie shall be bound to do so, in like 
 manijer,as vjponprpoess issued to bini, and ahaU.be §qualjy liable in 
 
298 CODB OF PKOCEDUEB. [§§ 420-423. 
 
 all respects for neglect of duty ; and, if the sheriff be a party, the 
 coroner shall be bound to perform the service, as he is now bound 
 to execute process, where the sheriff is a party ; wnd all the provi- 
 iions of this act relating to sheriffs shaR apply to coroners wh,en the 
 sheriff is a pa/rty. 
 
 CHAPTER XIII. 
 
 Accountability of Oua/rdians. 
 
 Section 420. Ouardian not to receive property until security given. 
 
 § 420. (Being § 381 of 1848.) No guardian appointed for an 
 Infant shall be permitted to receive property of the infant, until he 
 shall have given sufficient security, approved by a judge of the 
 court or a county judge, to account for and apply the same, under 
 the direction of the court. 
 
 CHAPTER XrV. 
 
 Powers of Referees. 
 
 Section 431. Referees authorized to administer oaths and to exercise powers now 
 vested in referees by law. ' 
 
 § 421. (Being § 382 of 1848.) Every referee, appointed pursuant 
 to this act, shall have power to administer oaths, in any proceed- 
 ings before him, and shall have generally the powers now vested 
 in a referee by law. 
 
 CHATBR XV. 
 
 Miscdlaneous Provisions. 
 
 Section 4SSI. Papers lost or withheld, how supplied. 
 
 423. Where undertaMngs to be filed. 
 
 424. Judgment on bona and warrant of attorney, executed before July 
 
 1,1848. 
 
 425. Time for publication of notices, how computed. 
 
 426. Laws of other states and governments, how proved. 
 
 § 422. (Added in 1849.) If an original pleading or paper be lost 
 or withheld by any person, the court may authorize a copy thereof 
 to be filed and used instead of the original. 
 
 § 42S. (Added in 1849.) The various undertakings required to be 
 given by this act, must be filed with the clerk of the court, unless 
 
§§ 424-426.] OODB op peocbdukb. 299 
 
 the court expressly provides for a different disposition thereof, 
 except that the undertakings provided for by the chapter on the 
 claim and delivery of personal property, shall, after the justification 
 of the sureties, be delivered by the sheriff to the parties, respectively, 
 for whose benefit they are taken. 
 
 § 4S4. (Added in 1849.) Upon any bond and warrant of attorney 
 executed and delivered before the first day of July, eighteen hun- 
 dred and forty-eight, judgment may be entered in the manner pro- 
 vided by sections 382, 383, and 384, upon the plaintiff's filing such 
 bond and warrant of attorney, and a statement signed and verified 
 by himself, in the form prescribed by section 382. 
 
 § 425. (Added in 1849.) The time for publication of legal notices 
 shall be computed so as to exclude the. first day of publication and 
 include the day on which the act or event, of which notice is given, 
 is to happen, or which completes the full period required for pub- 
 lication. 
 
 § 436. (Added in 1849.) Printed copies in volumes, of statutes, 
 code or other written law, enacted by any other State or territory, or 
 foreign government, purportmg 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 government, 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 evidence, and the books of reports of cases adjudged in 
 their courts may also be admitted as presumptive evidence of such 
 law. 
 
 (Am'd in 1869.) 
 
 g 426. (As am'd in 1869.) Printed copies of statutes, code, or 
 other written laws, and cf the proclamations, edicts, decrees and ordi- 
 nances, by the executive power of any State or territory, or foreign 
 government, when printed in books or publicalfyms 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 
 coiuis and judicial tribunals of such State, territory or government, 
 shall be admitted by the courts and officers of this State, on all 
 
300 CODE OP PEOCBDURB, [§ 427. 
 
 occaBions, as presumptive evidence of such laws^ prodamationa^ 
 edicts, decrees and m'dirumaes. The unwritten or common law of any- 
 other State or territory, or foreign government, may be proved as 
 facts by parol evidence, and the books of reports of cases adjudged 
 in these courts, may also be admitted as presumptive evidence of 
 such law. 
 
 TFCTSB TOO. 
 
 Actions in Particviar Gases. 
 
 Chapter I. Actions against foreign corporations. 
 
 n. Actions in place of scire facias, quo warranto, and of informations 
 
 in the nature, of quo warranto. 
 m. Actions for the partition of real;property. 
 
 rV. Actions to determine conflicting claims to real property, and for 
 waste and nuisance, 
 y. General provisions relating to actions concerning real property. 
 
 CHAPTER I. 
 
 Actions a{fainst Foreign Corporations. 
 Skotiok 427. Wliere and by whom brought. 
 
 § 427. (Added in 1849.) An action against a corporation, created 
 by or under the laws of any other State government, or country, 
 may be brought in the supreme court, the superior court of the 
 city of New York, or the court of common pleas for the city and 
 county of New Tork, in the following cases : 
 
 1. By a resident of this State, for any cause of action. 
 
 3. By a plaintiff not a resident Of this State, when the cause o 
 action Shall have arisenj or the sulq'ect of the action shall be situated 
 within this State. 
 
§§ 428, 429.1 CODE OF PKOCEDURE. 801 
 
 CHAPTER n; , 
 
 Actions in place of. Scire FaciaSy Quo WarrantOj and of informd- 
 tiona in the nature of Qtio Wa/rrantoJ 
 
 Sbction ^8. Scire facias and quo warranto abolished, and this chapter Bnbsti- 
 tated. 
 ^9. Action may be brought by attorney-general to vacate a charter, by 
 direction of legislature. 
 
 430. Action to annul a conioration, when and how brought by attorney- 
 
 general, by leave of supreme court. 
 
 431. Leave, how obtained. 
 
 432. Action upon information or complaint, of coarse. 
 
 433. Action, when and how brought to vacate letters patent. 
 
 434. Relator, when to be joined as plaintiff. 
 
 435. Complaint and arrest of defendant, in action for usurping an office. 
 
 436. Judgment in such action. 
 
 437. Assumption of office, etc., by relator, when judgment is in his 
 
 favor. 
 
 438. Proceedings against defendasdt, on refusal to deliver books or 
 
 papers. 
 ©9. Damages, how recovered. 
 
 440. One action against several p«rson& claiming office or franchise. 
 
 441. Penalty for usurping office or franchise ; how awarded. 
 4^. Jiidgmentiof forfeiture against a, corporation. ■ ■■■■ i ■ ■ 
 
 443. Costs against corporation or persons claiming to be such; how 
 
 collected. "' 
 
 444. Restraining corporation and appointment of receiver., < 
 
 445. Copy of jnamient roll against corporation ; where to be filed. 
 
 446. Entry of juc^ment relatmg to letters patent in records of commis- 
 
 sioners of land office. 
 
 447. Actions for forfeiture of property to the people. ^ 
 
 § 428, (Added in 1849.; The writ of scire facias, the writ of quo 
 warranto, and proceedings' by information in the nature Of : quo 
 warranto, are abolished, and tiie remedies heretofore obtainable in 
 those forms may be obtained by civil actions, und^r th« .^provisions 
 of this chapter. But any proceeding heretofore commenced, or 
 judgment rendered, or right acquired,, shall not be affected by such 
 abolition. 
 
 § 429. (Added in 1849.) 'An action may be brought by the attor- 
 ney-general, in the name of the people of this State, whenever the 
 legislature shall so direct, against a cotporation, for the purpose of 
 vacating- or annulling the act of; inctirporation, or an act'renfetraig 
 its corporate existence, on the ground that such' act or renewal was 
 procured upon some ftaiudulent suggestion or concealment of a 
 material fact by the persons incorporated,' or by some of them, or 
 with their knowledge and consent. , - 
 
 26 
 
302 
 
 CODE OP PEOCEDUEB. [§§ 430-432. 
 
 § 430. (Added in 1849.) An action may be brought by the attor- 
 ney-general, in the name of the people of this State, on leave granted 
 by the supreme court, or a judge thereof, for the purpose of vacating 
 the charter, or annulling the existence of a corporation, other than 
 municipal, whenever such corporation shall, 
 
 1. Offend against any of the provisions of the act or acts creating, 
 altering or renewing such corporation ; or, 
 
 2. Violate the provisions of any law, by which such corporation 
 shall have forfeited its charter, by abuse of its powers ; or, 
 
 3. "Whenever it shall have forfeited its privileges or franchises, by 
 failure to exercise its powers ; or, 
 
 4 "Whenever it shall have done or omitted any act which amounts 
 to a surrender of its corporate rights, privileges and franchises ; or, 
 
 5. Whenever it shall exercise a franchise or privilege not conferred 
 upon it by law. 
 
 And it shall be the duty of the attorney-general, whenever he shall 
 have reason to believe that any of these acts or omissions can be estab- 
 lished by proof, to apply for leave, and, upon leave granted, to bring 
 the action in every case of public interest, and also in every other 
 case in which satisfactory security shall be given, to indemnify the 
 people of this State, against the costs and expenses to be incurred 
 thereby. 
 
 § 4S1. (Added in 1849.) Leave to bring the action may be 
 granted upon the application of the attorney-general ; and the court 
 or judge may, at discretion, direct notice of such application to be 
 ^ven to the corporation or its officers, previous to granting such 
 leave, and may hear the corporation in opposition thereto. 
 
 § 432. (Added in 1849.) An action may be brought by the attor- 
 ney-general in the name of the people of this State, upon his own 
 information, or upon the complaint of any private party, against 
 the parties offending in the following cases : 
 
 1. "When any person shall usurp, intrude into, or unlawfully hold 
 or exercise, any public office, civil or military, or any franchise 
 within this State, or any office in a corporation created by the 
 authority of this State ; or 
 
 2. "When any public officer, civil or military, shall have done or 
 suffered an act which, by the provisions of law, shall make a for- 
 feiture of his office; or 
 
§§ 433, 434.] CODE OF PKOCBDUEE. 303 
 
 3. When any association, or number of persons, shall act within 
 this State as a corporation, without being duly incorporated. 
 
 § 433. (Added in 1849.) An action may be brought by the attor- 
 ney-generalj in the name of the people of this State, for the purpose 
 of vacating or annulling letters patent, granted by the people of 
 this Stale, in the following cases : 
 
 1. When he shall have reason to believe that such letters patent 
 were obtained by means of some fraudulent suggestion or conceal- 
 ment of II material fact, made by a person to whom the same 
 were issued or made, or with his consent or knowledge ; or 
 
 2. When he shall have reason to believe that such letters patent 
 were issued through mistake, or in ignorance of a material fact ; or 
 
 3. When he shall have reason to believe that the patentee, or 
 those claiming under him, have done or omitted an act in violation 
 of the terms and conditions on which the letters patent were 
 granted, or have, by any other means, forfeited the interest acquired 
 under the same. 
 
 § 434. (Added in 1849.) When an action shall he brought by tlie 
 attorney-general, by virtue of this chapter, on the relation or. 
 information of a person having an interest in the question, the 
 name of such person shall be joined with the people as plaintiff. 
 
 (Am'd m 1866 and 1867.) 
 
 § 434. (As am'd in 1866.) When an action shall be brought by 
 the attorney-genei'al, by virtue of this chapter, on the relation or 
 information of a person having an interest in the question, the name 
 of such person shall be joined with the people as plaintiff, and in 
 every sttch ci^e tlie attorney-general may require, as a condition for 
 bringing gudi action, that satisfactoi'y security shaU be given to indem- 
 nify the people of the State against the costs and expenses to be incurred 
 
 § 434, (As am'd in 1867.) When an action shall be brought by 
 the attorney-general, by virtue of this chapter, on the relation or 
 information of a person having an interest in the question, the name 
 of such person shall be joined with the people as plaintiff, and in 
 every such case the attorney-general may require, as a condition for 
 bringing such action, that satisfactory security shall be given to in- 
 
304 CODE OP PBOCEDUBB. [§§ 435-439, 
 
 demnify the people of this State against the costs and expenses to 
 be incurred, thereby ; and in every ease where sueh security, is given, 
 the measure of the compensation to be paid by such person or persons 
 to tJie attorney-general shall be left to the agreement of the pa/rties, eaypresi 
 or implied. 
 
 § 4S5. (Added in 1849.) Whenever such action shall be brought 
 against a person for usurping an office, the attorney-general, in ad- 
 dition to the statement of the cause of action, may also set forth, 
 in the complaint, the name of the person rightfully entitled to the 
 office, with a statement of his right thereto, and in such case, upon 
 proof by affidavit that the defendant has received fees or emolu 
 ments belonging to the office, and by means of his usurpation 
 thereof, an order may be granted by a judge of the supreme court 
 for the arrest of such defendant, and holding him to bail, and 
 thereupon he shall be arrested and held to bail, in the manner, and 
 with the same effect, and subject to the same rights and liabilities, 
 as in other civil actions, where the defendant is subject to arrest. 
 
 § 436. (Added in 1849.) In every such case, judgment shall be 
 rendered upon the right of the defendant, and also upon the right 
 . of the party, so alleged to be entitled, or only upon the right of the 
 defendant, as justice shall require. 
 
 § 4*7'. (Added in 1849.) If the judgment be rendered upon the 
 right of the person so alleged to be entitled, and the same be in 
 favor of such person, he shall be entitled, after taking the oath of 
 office and executing such official bond as may be required by law, 
 to take upon himself the execution of the office, and it shall be his 
 duty, immediately thereafter, to demand of the defendant in the 
 action all the books and papers in his custody or within his power, 
 belonging to the office, from which he shall have been excluded. 
 
 § 438. (Added in 1849.) If the defendant shall refuse or neglect 
 to deliver over such books or papers, pursuant to the demand, he 
 shall be deemed guilty of a misdemeanor, and the same proceedings 
 shall be had, and with the same effect, to compel delivery of such 
 books and papers, as are prescribed in article 5, title 6, chapter 6, 
 of the first part of the revised statutes. 
 
 § 439. (Added in 1849.) If judgment be rendered upon the right 
 of the person so alleged to be entitled, in favor of such person, he 
 may recover, by action, the damages which he shall have sustained 
 
§§ 440-444.] CODE OF PEOCEDTJEB. 305 
 
 by reason of the usvirpation by the defendant of the ofSce, from 
 which such defendant has been excluded. 
 
 § 440. (Added in 1849.) Where several persons claim to be en- 
 titled to the same office or franchise, one action may be brought 
 against all such persons, in order to try their respective rights to 
 such office or franchise. 
 
 § 441. (Added in 1849.) When a defendant, whether a natural 
 person or a corporation,' against whom such action shall have been 
 brought, shall be adjudged guilty of usurping or intruding into, or 
 unlawfully holding or exercising any office, franchise or privilege, 
 judgment shall be rendered that such defendant be excluded from 
 such office, franchise, or privilege, and also that the plaintiff recover 
 costs against such defendant. The court may also, in its discretion, 
 fine such defendant a sum not exceeding two thousand dollars, 
 which fine, when collected, shall be paid into the treasury of the 
 State. 
 
 § 442. (Added in 1849.) If it shall be adjudged that a corpora- 
 tion against which an action shall have been brought, pursuant to 
 this chapter, has, by neglect, abuse, or surrender, forfeited its cor- 
 porate rights, privileges and franchises, judgment shall be rendered 
 that the corporation be excluded from such corporate rights, privi- 
 leges and franchises, and that the corporation be dissolved. 
 
 § 443. (Added in 1849.) If judgjnent be rendered in such action 
 against a corporation, or against persons claiming to be a corpora- 
 tion, the court may cause the costs therein to be collected, by exe- 
 cution against the persons claiming to be a corporation, or by 
 attachment or process against the directors or other officers of such 
 corporation. 
 
 § 444, (Added in 1849.) When such judgment shall be rendered 
 against a corporation, the court shall have the same power to re- 
 strain the corporation, to appoint a receiver of its property, and to 
 take an account, and make distribution thereof among its creditors, 
 as are given in article 3, title 4, chapter 8, of the third part of the 
 revised statutes ; and it shall be the duty of the attorney-general, 
 imimediately after the rendition of such judgment, to institute pro- 
 ceedings for that purpose. 
 26* 
 
306 CODE OF PEOOBDUBB. [§§ 445-448. 
 
 §445, (Added in 1849.) Upon the rendition of sucli judgment 
 against a corporation, or for the vacating or annulling of letters 
 patent, it shall be the duty of the attorney-general to cause a copy 
 of the judgment roll to be forthwith filed in the office of the sec- 
 retary of state. 
 
 § 446. (Added in 1849.) Such secretary shall thereupon, l£ the 
 record relates to letters patent, make an entry in the records of 
 the commissioners of the land office, of the substance and effect of 
 such judgment, and of the time when the record thereof was dock- 
 eted, and the real property granted by such letters patent may 
 thereafter be disposed of by such commissioners in the same man- 
 ner as if such letters patent had never been issued. 
 
 § 447. (Added in 1849.) "Whenever, by the provisions of law, any 
 property, real or personal, shall be forfeited to the people of this 
 State, or to any officer, for their use, an action for the recovery of 
 such property, alleging the grounds of the forfeiture, may be 
 brought by the proper officer, in the supreme court. 
 
 CHAPTER HL 
 
 Acticmfor the PwrtilMn of Beal Pr(rperty. 
 
 Section 44S. ProTiBions of revised Btatates appUcaNe to actions for partition. 
 
 § 448. (Added in 1849.) The provisions of the revised statutes 
 relating to the partition of lands, tenements and hereditaments, 
 held or possessed by joint tenants or tenants in common, shall apply 
 to actions for such partition brought under this act, so far as the 
 same can be so applied "to the substance and subject-matter of the 
 action, without regard to its form. 
 
§§ 449-4S3.] CODE OB' PEOOEDUEB. 307 
 
 CHAPTER IV. 
 
 AcUona to determine Cmfiicting (Mim» to HM Property, andforWaMe 
 and Xuimnce. 
 
 Section 449. Actions to determine claims to real property, how prosecuted. 
 460. Action of waste abolished ; waste, how remediable. 
 
 451. Proyisions of revised statutes applicable to actions for waste under 
 
 thi8«ct. 
 
 452. When judgment of forfeiture and eviction to be given. 
 
 453. Writ of nuisance abolished. 
 
 454. Remedy for injuries heretofore remediable by writ of nuisance, 
 
 § *449. (Added in 1849.) Proceediags to compel the determina- 
 tion of claims to real property, pursuant to tlie provisions of the 
 revised statutes, may be prosecuted by action under this act, without 
 regard to the forms of the proceedings as they are prescribed by 
 those statutes. 
 
 § 450. (Added in 1849.) The action of waste ia abolished, but any 
 proceeding heretofore commenced, or judgment rendered, or right 
 acquired, shall not be affected thereby. "Wrongs heretofore reme- 
 diable by action of waste are subjects of action as other wrongs, in 
 which action there may be judgment for damages, forfeiture of 
 the estate of the party offending, and eviction from the premises. 
 
 § 431. (Added in 1849.) The provisions of the revised statutes 
 relating to the action of waste shall apply to an action for waste, 
 brought under this act, without regard to the form of the action, so 
 far as the same can be so applied. 
 
 § 432. (Added in 1849.) Judgment of forfeiture and eviction 
 shall only be given in favor of the person entitled to the reversion, 
 against the tenant in possession, when the injury to the estate in 
 reversion shall be adjudged in the action to be equal to the value of 
 the tenant's estate or unexpired term, or to have been done in 
 malice. 
 
 § 433, (Added in 1849.) The writ of nuisance is abolished; but 
 any proceeding heretofore commenced, or any judgment rendered, 
 or right acquired, shall not be affected thereby. 
 
 * This section is declared to be anplicable to married women, by § 2 of chap. 
 219, of 1864. 
 
308 CODE OF PKOCBDUEE. [§§ 454-457. 
 
 § 454. '(Added in 1849.) Injuries heretofore remediable by writ 
 of nuisance are subjects of action, as other injuries, and in such 
 action there may be judgment for damages', or for the removal of 
 the nuisance, or botlx. 
 
 CHAPTER V. 
 
 . OeneraZ provisions relating to Actions concehiing Beal Property. 
 
 Sectiok 455. Frovisionfi of revised Btatutes applicable thereto. 
 
 § 455. (Added in 1849.) The general provisions of the revised 
 statutes relating to actions concerning real property shall apply to 
 actions brought under this act, according to the subject-matter of 
 the action, and without regard to its form. 
 
 TITLE ZIV. 
 
 Promions relating to Meisting /Suits. 
 
 SxcTioH 456. Appeal from order at a special term, on emmnary applicatiou, after 
 jadgment. 
 457. Writ of error in all cases a1)olislied ; appeal Bubstitated. 
 438. Execntion, when issoahle on a judgment docketed before Jnly 1,1848. 
 
 459. Proceeding by re-hearing abrogated. 
 
 460. Appeals from final decrees by a single jadge in snpreme conrt in 
 
 suits in equity pending on July 1, 1847, when to be taken. 
 
 461. Issues of fact in county court or common pleas before July 1, 1848, 
 
 how tried. - 
 
 ' §456. (Added in 1849.) The appeal mentioned in section 9 of 
 the act to facilitate the determination of existing suits in the courts' 
 of this State, may also be taken from an order, made at a special 
 term, on a summary application in an action after judgment, when 
 BUcTi ordeir involves the merits of the application, or some part 
 thereof. 
 
 § 457, (Added in 1849.) No writiof error shall be hereafter issued 
 in any case whatever. Wherever a right now exists to have a review 
 of a judgment rendered, or order or decree made befcffe the first day 
 of July, one thousand eight hundred and iorty-eight, such re- 
 view can only be had upon an appeal taken in the manner 
 provided by this act, and all appeals heretofore taken from such 
 judgments, orders, or decrees under the provisions of the code, 
 of proceduJre,' which are still pending in an appellate court, and 
 
§§ 458-460.] CODE OF PKOCEDUEE. 309 
 
 not dismissed, shall be valid and effectual. But this section shall 
 nT)t extend the right of review to any case or question to which it 
 does not now extend, nor the time for appealing, nor shall it apply 
 to a case where a writ of error has been already issued. 
 
 § 458. (Added in 1849.) An execution may be issued without 
 leave of the court upon a judgment docketed before the first day 
 of July, one thousand eight hundred and forty-eight, or now or 
 hereafter to be rendered in an action pending on that day, at any 
 time within five years after the rendering of the judgment. 
 
 § 459. (Added in 1849.) The proceeding, by rehearing, provided 
 for in the act in relation to the judiciary, passed May 13, 1847, and 
 modified in sections 7 and 8 of the act to facilitate the determina- 
 tion of existing suits in the courts of this State, passed April 12, 
 1848, is hereby abrogated, so far as it relates to the appeals provided 
 for in this section. 
 
 (Am'd in 1851.) 
 
 § 459. (As am'd in 1851.) The provisions of this act apply to 
 future proceedings in actions or suits heretofore commenced and 
 now pending, as follows : 
 
 1. If there have been no pleading therein, to the pleadings and 
 all subsequent proceedings. 
 
 2. When there is an issue of law or of fact, or any other question 
 of fact to be tried, to the trial and all subsequent proceedings. 
 
 3. After a judgment or order, to the proceedings to enforce, vacate, 
 modify or reverse it, including the costs of an appeal Whenever 
 the judges of the supreme court in any district find that the court, 
 at any term or circuit, has not been, or will not be, able to dispose 
 of all the cases upon the calendar, they may request the governor 
 to assign other judges, and, if necessary, appoint extraordinary 
 terms and circuits for the purpose of disposing of such cases. The 
 governor may thereupon make such assignment, and the judges 
 assigned must hold the courts accordingly. 
 
 § 460. (Added in 1849.) An appeal may be taken from any final 
 decree entered upon the direction of a single judge, in any suit in 
 equity, pending in the supreme court, on the first day of July, one 
 thousand eight hundred and forty-seven, within ninety days from 
 the time this act shall takeefiiect; but this section shall not apply 
 to cases, where a rehearing has already been had or ordered, and 
 
310 CODE OF PROCBBUEB. [§ 460, 
 
 such appeal shall be taken in the manner provided in sections 327 
 and 348. 
 (Am'd in 1851, 1852 and 1858.) 
 
 § 460. (As am'd in 1851.) An appeal may be taken from any final 
 decree entered upon the direction of a single judge, in any suit in 
 equity pending in the supreme court, on the first day of July, one 
 thousand eight hundred and forty-seven, at any time before the first 
 day of Novembeir, one thouswnd eigM hundred and fifty-one ; but this 
 section shall not apply to cases where a rehearing has already been 
 had or ordered, or to the ease of a decree entered before the passage of 
 this act, and to review which no attempt in good faith has been, or shall 
 home been made within thirty days after notice of the entry of such decree. 
 Such appeal shall be taken in the manner provided in sections 327 
 and 348. 
 
 § 460. (As am'd in 1852.) An appeal may be taken from any final 
 decree entered upon the direction of a single judge, m any suit in 
 equity pending in the supreme court, on the first day of July, one 
 thousand eight hundred and forty-seven, at any time before the first 
 day of November, one thousand eight hundred and fifty-two. But this 
 section shall not apply to cases where a rehearing has already been 
 had or ordered, or to the case of a decree entered before the passage 
 of this act, and to review which no attempt in good faith has been, 
 or shall have been made within thirty days after notice of the entry 
 of such decree. Such appeal shall be taken in the manner provided 
 in sections 327 and 348. 
 
 § 460. (As am'd in 1858.) An appeal maybe taken from any final 
 decree, entered upon the du-ection of a single judge, in any suit in 
 equity pending in the supreme court, on the first day of July, one 
 thousand eight hundred,and forty-seven, at any time before the first 
 day of November, one thousand eight hundred and fifty-two. But 
 this provision shall not apply to cases where a rehearing has already 
 been had or ordered, or to the case of a decree entered before the pas- 
 sage of this act, and to review which no attempt in good faith has 
 been, or shall have been made within thirty days after notice of the 
 entry of such decree. Such appeal shall be taken in the manner 
 provided in sections 327 and 348. In all cases of appeal to the court 
 of appeals, in actions which were originally commeneed in the late court 
 of clumcery of this State, the court of appeals shall review tJie cause 
 
§§ 461-466.] CODE OP PEOCEDUEB. 311 
 
 v/pon the facta and the lava, withovi any statement or spedjkaMon of 
 fa^ found, or any exception taken, at the trial of any or either of 
 t7i£m. And it shall be, and is hereby declared to be, the duty of the 
 court of appeals, in any and aU such cases, to review the whale matter 
 upon the evidence as well as the law. 
 
 § 461. (Added in 1849.) An issue of fact joined in a county 
 court, or court of common pleas, before the first day of July, one 
 thousand eight hundred and forty-eight, or then pending in that 
 court on appeal, shall be tried by a jury, unless the parties other- 
 wise agree. 
 
 TITLE XV. 
 
 OeneroU Promions. 
 
 Sbci:ion462. Definition of "real property.' 
 
 463. Definition of "personal property." 
 
 464. Definition of "property." 
 
 465. Definition of "district." 
 
 466. Definition of " clerk." 
 
 467. Eule of strict construction of statntes inapplicable to tliis act. 
 
 468. Statutory provisions inconsistent with this act repealed. 
 
 469. Rules and practice inconsistent with this act abrogated. 
 
 470. Judges of supreme court to make general rules, 
 
 471. This act not to aft'ect certain proceedings and statutory provisiona. 
 
 472. Certain parts of revised and other statutes not repealed. 
 
 473. This act, when to take effect. 
 
 § 462. (Being | 383 of 1848.) The words " real property," as 
 used in this act, are co-extensive with lands, tenements and heredit- 
 aments. 
 
 § 463. (Being § 384 of 1848.) The words " personal property," as 
 used in this act, include money, goods, chattels, things in action, and 
 evidences of debt. 
 
 § 464. (Being § 385 of 1848.) The word " property," as used in 
 this act, includes property, real and personal. 
 
 § 465. (Being § 386 of 1848.) The word "district," as used in this 
 act, signifies judicial district, except when otherwise specified. 
 
 § 466. (Being § 887 of 1848.) The word " clerk," as used in this 
 act, signifies the clerk of the court where the action is pending, and 
 in tlie supreme court, the clerk in the county mentioned in the 
 title of the complaint, or in another county to which the court 
 may have changed the place of trial, unless otherwise specified. 
 
312 CODE OP PEOCEDUEE. [§§ 46'7-4'?0. 
 
 ' . § 467. (Added in 1849;) The rule of cominioii law, that statutes 
 in derogation of that law are to be strictly construed, has no appli- 
 cation to this act. 
 
 § 468. (Being § 388 of 1848.) All statutory provisions inconsist- 
 ent with this act are repealed ; but this repeal shall not revive a 
 statute or law which may have been repealed or abolished by the 
 provisions hereby repealed. And all rights of action given or 
 secured by existing laws may be prosecuted in the manner- provided 
 by this act. If a case shall arise in which an action for the enforce- 
 ment or protection of a right, or the redress or prevention of a 
 wrong, cannot be had under this act, the practice now in use may 
 be adopted so far as may be necessary to prevent a fiailore of 
 justice. 
 
 (Am'd in 1849.) 
 
 § '168. (As am'd in 1849.) All statutory provisions inconsistent 
 with this act are repealed ; but this repeal shall not revive a statute 
 or law which may have been repealed or abolished by the pro- ' 
 visions hereby repealed. And all rights of action given or secured 
 by existing laws may be prosecuted in the manner provided by this 
 act. If a case shall arise in which an action for the enforcement or 
 protection of a right, or the redress or prevention of a wrong, can- 
 not be had under this act, the practice heretofore in use may be 
 adopted so far as ni^y be necessary to prevent a failure of justice. , 
 
 § 469. (Being 389 of 1848.) The present rules and practice of the 
 courts, in civil actions, inconsistent with this act, are abrogated ; but 
 where consistent with this act they shall continue in force subject 
 to the powers over the same of the respective courts as they now 
 exist. 
 
 (Am'd in 1849.) 
 
 § 469. (As am'd in 1849.) The present rules and practice of the 
 courts, in civil actions, inconsistent with this act, are abrogated; 
 but where consistent with this act they shall continue in force sub- 
 ject to the power of the respective courts to rekut, modify or alter 
 the same. 
 
 § 470. (Added in 1849.) The judges of the supreme court shall 
 meet in general session at the capital in the city of Albany, on the 
 
§ 470.] CODE OF PBOCEDFEE, 813 
 
 first Wednesday of August, 1849, and at sacb session make seneral 
 rules to carry into effect tlia provisions of this, act, and such 
 other rules as they deem proper, not, inconsistent with, this act. 
 The rules so made shall govern the superior court of the city of 
 New York, the court of common pleas of the( city and county of 
 New Torkj and the county courts so far as the same may he 
 applicable. 
 
 Until such general session of the supreme court, the general terms 
 respectively of that court, and of the other courts mentioned in 
 this section, may make temporary rules in like cases, to continuq 
 in force until the first day of September next, and no longer ; and 
 from and after the first day of September next, the existing general 
 rules of the supreme court, adopted in July, 1847, so far as the same 
 remain now in force, shall be abrogated. 
 
 (Am'd in 1851 and 1853.) 
 
 § 470. (As atn'd in 1851.) The judges of the supreme court shall 
 meet in general session at the capitol in the city of Albany, on the 
 first Wednesday in August, one thousand eight hundred and fifty- 
 two, and every two years thereafter, and at such sessions shall revise 
 their general rules and make such amendments thereto as experience 
 has shown to be necessary to carry into effect the provisions of the 
 code of procedure, and make such further rules as they deem proper^ 
 not inconsistent with the provisions of this act. The rules so made 
 shall govern the superior court of the city of New York, the court 
 of common pleas for the city and county of New York, and the 
 county courts so far as the same may be applicable. 
 
 § 470 (As am'd in 1853.) The judges of the supreme court, of 
 the superior court of the city of New York, and of the court of coin- 
 mon pleas for the city and county of New York, shall meet in gen- 
 eral session at the capitol in the city of Albany, on the first 
 Wednesday in August, One thousand eight hundred and fifty-two, 
 and every two years thereafter, and at such sessions shall revise 
 their general rules and make such amendments thereto, and, such 
 further rules, not inconsistent mth this code, as may be necessary to 
 carry it into full effect. The rules so made shall govern the 
 supreme eov/rt, the superior court of the city of New York, the 
 court of common ple:» for the city and county of New York, and 
 the county courts so far as the same may be applicable. 
 27 
 
314 CODE OF PEOCED0EE. [§ 471. 
 
 § 471. (Being § 390 ol 1848.) TJntil the legislature shall otherwise 
 provide, this act shall not affect proceedmgs upon mandamus, pro- 
 hibition, quo warranto, information, scire facias to repeal letters 
 patent ; nor appeals from surrogates' courts ; nor any special statu- 
 tory remedy not heretofore obtained by action; nor any existing 
 statutory provisions relating to actions, not inconsistent with this 
 act, and in substance applicable to the actions hereby provided ; nor 
 any proceedings provided for by chapter's of the second part of 
 the revised statutes, or by the second, third, fourth, fifth, sixth and 
 eighth titles of chapter 5 of the third part of those statutes, or by 
 chapter 8 of the same part, excluding the second and twelfth 
 titles thereof, or by the first title of chapter 9 of the same part; 
 except that when, in consequence of any such proceedings, a civil 
 action shall be brought, such action shall be conducted in conform- 
 ity to this act ; and except, also, that, where any particulal- provision 
 of the titles and chapters enumerated in this section shall be plainly 
 inconsistent with this act, such provision shall be deemed repealed. 
 
 (Am'd in 1849, 1853, 1862 and 1863.) 
 
 § 471. (As am'd in 1849.) Until the legislature shall otherwise 
 provide, this act shall not affect proceedings upon mandamus or 
 prohibition ; nor appeals from surrogates' courts ; nor any special 
 statutory remedy not heretofore obtained by action ; nor any exist- 
 ing statutory provisions relating to actions not inconsistent with 
 this act, and in substance applicable to the actions hereby provided: 
 nor any proceedings provided for by chapter 5 of the second part 
 of the revised statutes, or by the sixth and eighth titles of chapter 
 5 of the third part of those statutes, etc. (as in 1848). 
 
 § 471. (As am'd in 1852.) Until the legislature shall otherwise 
 provide, the second part of this act shall not affect, etc. (as in 1849). 
 
 § 471. (As am'd in 1862.) Same as § 471, as amended in 1852, 
 except that after the words "surrogates' courts" were inserted 
 therein the words " accept that the costs on snuih appeal shaU be regu- 
 lated amd allowed m the manner provided in section 318 of this act." 
 
 § 471. (As am'd in 1863.) Until the legislature shall otherwise 
 provide, the second part of this act shall not affect proceedings 
 upon mandamus, or prohibition, nor appeals from surrogates' 
 
§§ 472, 473] CODE OP pboCeduek 315 
 
 cooTts, except tliat the costs on such appeal shiill be regnlated 
 and allowed in the manner provided in section 318 of this act; 
 nor any special statutory remedy not heretofore obtained by 
 action, nor any existing statutory provisions relating to actions, 
 not inconsistent with this act, and in substance applicable to 
 the actions hereby provided; nor any proceedings provided for 
 by chapter 5 of the second part of the revised statutes, or 
 by the sixth and eighth titles of chapter 5 of the third part of 
 those statutes, or by chapter 8 of the same part, excluding the 
 second and twelfth titles thereof, or by the first title of chapter 9 
 of the same part ; except that when, in consequence of any such 
 proceeding, a civil action shall be brought, such action shaU be 
 conducted in conformity to this act ; and except, also, that, where 
 any particular provision of the titles and chapters enumerated in 
 this section shall be plainly inconsistent with this act, such pro- 
 vision shall be deemed repealed. 
 
 In cuMons or •proceedings by ma/ndamMS, a/menS/mmits of any mistakes 
 in tlie process, pleadings or proceedings therein may he dCUnced, ami 
 sTujU he Tnade in conformity to the provisions of chapter 6, fc'fle & of the 
 second part of the code of procedure. 
 
 § 472. (Added in 1849.) Nothing in this act contained shall be 
 taken to repeal section 28, of article 3, of title 5, of chapter 6, part 
 third of the revised statutes, or to repeal an act to extend the 
 exemption of household furniture and working tools from distress 
 for rent and sale under execution, passed April eleventh, one 
 thousand eight hundred and forty-two. 
 
 § 473. (Being § 391 of 1848.) This act shall take effect on the first 
 day of July next; except that sections 33, 34, 35, 36 and 2t shall 
 take effect immediately. 
 
 (Am'd in 1849.) 
 
 § 473. (As am'd in 1849.) This act shall take effect on the first 
 day of July, one thousand eight hundred and forty-eight ; except 
 that sections 33, 33, 34 and 35 shall take effect immediately. 
 
APPENDIX. 
 
Chaptee 203. 
 
 AN ACT relating to the Court of Appeals and the Com- 
 mission of Appeals. 
 
 Passed April 14, 1870 ; three-flfthB being present. 
 
 The People of the Slate of New York, represemled in Senate and 
 Assembly, do enact as foUaws : 
 
 Section 1. The court of appeals, instituted by the sixth article 
 of the constitution, shall possess all the powers and jurisdiction 
 heretofore possessed by the existing court of appeals, and all laws 
 authorizing and regulating appeals to the last-mentioned court, 
 and other laws relating thereto, the judges thereof, their powers 
 and duties, and not inconsistent with the constitution or with this 
 act, shall be deemed in force and applicable to the court in this 
 section first mentioned, and to the judges thereof; provided, how- 
 ever, that no existing law which relates to the rehearing of caussc 
 in such court shall be in force; and provided further, that the court 
 may prescribe the times and places of holding its terms, except 
 as provided in the next section. 
 
 § 2. The said court of appeals shall hold a term for the hearing 
 of causes and matters before it in the senate chamber of the capi- 
 tol, in the city of Albany, commencing on the first Tuesday in 
 July next The clerk of the existing court of appeals shall act as 
 clerk of such newly instituted court until a clerk thereof shall be 
 appointed pursuant to the constitution, and he shall prepare and 
 make up a calendar for the term so to be held, to be composed of 
 the causes and matters which shall be upon the then existing 
 calendar of the court of appeals which were not pending in said 
 court on the first day of January, eighteen hundred and sixty- 
 nine. Such causes and matters on the existing calendar shall be 
 deemed regularly noticed and ready for hearing at such term, 
 according to the usual course and practice. Causes not upon the 
 said existing calendar, and brought into the court of appeals since 
 the first day of January, eighteen hundred and sixty-nine, may be 
 noticed for hearing at the said term, and placed upon the calendai 
 
320 APPENDIX. 
 
 BO to be prepare! The rules and practice of the existing court 
 of appeals shall continue to be the rules and practice of the court 
 of appeals until the same shall be altered by order of the court. 
 
 § 3. The comniission of appeals" pro vic(ed for in the said sixth 
 artidedf the constitiltion shall commence on the first' Moiktay'of- 
 July next, at which time the commissioners shall meet at the capi- 
 tolj'in the city of Albany, and shall take the oath of office, and 
 organize by *ppointing a chief commissioner. The clerk of the 
 present court of appeals shall be the clerk of the said commission," 
 until the: expiration of histerm of ofiSoe, when the- commissioners 
 dlall appoint a successor for the ^ residue of the period of the com- 
 mission j and his compensation shall be the same as that of the 
 clerk of the court-of appeals. 
 
 ' § 4. The said commission shall hold a term or sitting for the 
 hearing of the causes committed to it, at the capitol, in the city of 
 Albany, commencing on the first Tuesday of July next, and shall 
 proceed to hear and; determine causes which were pending in Uie 
 present court of appeals on the first day of January, eighteen hun- 
 dred and sixty-nine. For that purpose the calendar of such causes,- 
 prepat-ed- foP the year «ghteen hundred and seventy, shall bef 
 deemed the calendar of the term so to be held,' and of subsequent 
 terms or sittings, without further notice of hearing, and any such 
 cause not on the calendar may be noticed and placed thereon at 
 any term or sitting. The commissioners shall have power to hear 
 and determine motions to dismiss appeals, and other motions arising 
 in the causes committed to them. All existing laws relating ttf 
 ofBcers and attendants -of the existing court of appeals, and all 
 rules of "pirbcedure therein, shall be deelnedinforoe in respect 'to 
 8iid'commissibir,'sb far as a^plicabl^to its jurisdiction and powei"s.' 
 
 "'§5. The clerk of the' commissioners shall keej) nuinubes of their 
 proceedings, orders and' de<asioilg,'and 'whenever they shall make 
 a' final decisidn of aiiy cause, or an order'diferaissing an ajppeal, the' 
 same shall be certified by the cferk to the court of appeals, and,' 
 on being rescbi'ded- in the minutes thereof, shall be of the same 
 force and effect 'as if the decrSion or order had been duty made by 
 said court.' A motion for a rehearing of any cause decided by the 
 siaid commissioners shall be made before them. 
 
AfFSNDIX. 321 
 
 § 6. All remittiturs in causes cietermined by tha said commis- 
 Eioners, shall, after the decisions have been certified, as required in 
 the last preceding section, be sent down from the court of appeals. 
 All minutes kept by the clerk of the commissioners of their pro- 
 ceedings, decisions and orders, shall be ileposited, and remain of 
 record, in the office of the clerk of the court of appeals. 
 
 § 7. Prior to the first Monday of July next, the present court 
 of appeals shall finally dispose of all causes and matters which 
 shall have been argued before it or submitted for decision, either 
 by determining such causes and matters, or by directing a re-argu- 
 ment of the same. 
 
 § 8. From and afler the first Monday of July next, the salary 
 of the chief judge of the court of appeals shall be seven thousand 
 five hundred dollars, and the salary of the associate judges of said 
 court and of the commissioners of appeals, shall be seven thousand 
 dollars, and in addition to such salaries the said chief judge and 
 associate judges shall be paid their reasonable expenses when 
 absent from their homes in the performance of official duty. 
 
 § &. All laws relatiiig to the clerk of the court of appeals, his 
 powers and duties, shall be applicable to the clerk appointed under 
 the constitution, except so far as they may be inconsistent with 
 the sixth article of the constitution or this act 
 
 § 10. This act shall take effect immediately. 
 
 STATE OP NEW YORK, 
 ExECtjrrvE Chamber, 
 
 Albany, May 25, 1870. 
 
 In accordance with the provisions of chapter 408 ^of the laws of 
 1870, entitled "An act relating to the supreme court, and to the 
 election of a judge of the court of common pleas in and for the 
 city and county of New York," I designate the, following as "pre- 
 siding justices and associate justices for each .of the four judicial 
 departments, to compose the general,term thjerein." 
 
 For the first department, consisting of the .first judicial district: 
 
 DANIEL P. INGRAHAM, PREaiDino Justice. 
 
 ALBERT CARDOZO, j . t 
 
 GEORGE G. BARNARD, \ -^-ssociate Justices. 
 
322 APPENDIX. 
 
 For the second department, consisting of the second judicial 
 'district: 
 
 JOSEPH F. BARNARD, Presiding Justice. 
 
 TASPER W. GILBERT, ) » .sociate Justices 
 ABRAHAM A. TAPPEN, ] ^^^°'^^^ Justices. 
 
 For the third department, consisting of the third, fourth and 
 
 sixth judicial district: 
 
 THEODORE MILLER, Presiding Justice. 
 
 PL ATT POTTER, ( AssoniATf .TnsTirFS 
 JOHN M. PARKER, f ■^^^""'^'^^ •"'*™^®- 
 
 For the fourth department, consisting of the fifth, seventh and 
 
 eighth judicial district : 
 
 JOSEPH MULLEN, Presiding Justice. 
 
 THOMAS A. JOHNSON, )^ J 
 
 JOHN L. TALCOTT, ^ associate justices. 
 
 In ■witness whereof, I have hereunto set my hand and aflSxed 
 the pjivy seal at the «apitol, in the city of Albany, this 
 [L. S.} twenty-fifth day of May, in the year one thousand eight 
 hundred and seventy. 
 
 JOHN T. HOFFMAN. 
 By the Governor : 
 
 Jno. D. Van Buren, 
 
 Private Secretary. 
 
 J' 
 
 STATE "OF NEW YORK. 
 OrincE OF the Secretary of State. 
 
 I hereby certify that the foregoing is a true copy of a designa- 
 tion, by John T. Hoffman, governor of the State of New York, 
 filed in this office this day. 
 
 Witness my hand and official seal, at the city of Albany, this 
 twenty-fifth day of May, A. D. 1870. 
 
 HOMER A. NELSON, 
 
 Secretary of State. 
 
APPEHDIX. 323 
 
 Chapteb 408. 
 
 AN ACT relating to the Supreme Court and to the elec- 
 tion of a Judge of the Court of Common Pleas in and 
 for the City and County of M ew York. 
 
 Passbd April 27, 1870 ; three-fifths being present. 
 
 Tlie People of the Slate of New York, represented in Senate and 
 Assembly, do enaci as follows : 
 
 Section 1. The general terms of the supreme court^ as organ- 
 ized under existing laws, are abrogated from and after the first 
 day of May next; and thereafter all causes and matters then^end- 
 ing in such general terms, or which, according to law, might be 
 brought before them, shall be cognizable before the general terms 
 organized under this act ; provided, nevertheless, that the said 
 geneial terms of the supreme court as now organized shall meet 
 on some day to be designated by the justices composing the same, 
 for the purpose of deciding all matters pending before them on 
 the said first day of May, and that appeals may be taken from the 
 judgments and orders entered on such decisions, in the same 
 manner as in like cases from tlie judgments and orders of the 
 general terms organized under this act. 
 
 § 2. The State is hereby divided into four departments. The 
 first department shall consist of the first judicial district; the 
 second department of the second judicial district; the third 
 department of the third, fourth and sixth judic al districts ; and 
 the fourth department of the fifth, seventh and eighth judicial dis- 
 tricts. Tlie general terms shall be held in each year in the first 
 department at the court-house in the city of New York on the 
 first Tuesdays in January, February, April, June, September and 
 November; in the second department at the court-house in the 
 city of Brooklyn on the second Tuesdays in January, April, Sep- 
 tember and December ; and at the court-Louse in the city of 
 Poughkeepsie on the second Tuesday in June ; in the third depart- 
 ment at the capitol in the city of Albany on the first Tuesdays in 
 February and October; at the court-house in tlie village of 
 
324 APPBiroii. 
 
 Plattsburgh, in the county of Clinton, on the first Tuesday in 
 July ; at the court-house in the city of iElmira on the first Tues- 
 days in April and September ; at the court-house in the city of 
 Binghamton on the first Tnesdwys in 3'une and December, and at 
 the court-house. in the city of -Ogdensburgton the ifirst'-3?nesday of 
 Norembep ; in thefourth diepairtment.atthe court-house in the city 
 of Syracuse on the first Monday in May and the second Monday 
 in November ; at the cour,t-house in the city of Oswego on the first 
 Monday in October; at the court-house in the (rity.of Rochester 
 on the first Mondays in January, March and September; and at 
 the court-house in, the city ' of Bufialp on the first Mondays in 
 February and June. , 
 
 ' § ^"The goTernorj by a writing to be filed, in the office of the 
 secretary of state, shall, immediately after the passage, of this act, 
 designate from the whole bench of justices of the supreme court 
 a presiding justice and two associate justices for €ach of said 
 departments to compose the general term therein. After such first 
 designation of presiding and associate justices, the judicial force 
 'herein provided for the holding of such, general terms shall be 
 maintained and' supplied from time' to time; as may be necessary, 
 and for that purpose, other presiding and associate justices shall 
 from' time to- time be designated, and such other and further desig- 
 nations shall be made by the governor in manner aforesaid. In 
 all cases any person <designated> as >pre8iding justice shall act as 
 such during his official' term; and any persondesignated-as asso- 
 ciate justice ishall act as such for fi-ve yearsjfrom the thirty-fiustof 
 'Decembernext after ~the time of his designation,' or until the leat- 
 her blose 6 his official term. The gov^nor- shall, in like manner 
 as 'aforesaid, designate presiding and associate justices to &it in such 
 general terois, as often as vacancies therein shall ocauv, for the unex- 
 piredterms. - . i >■ i . . , 
 
 § 4. Incase no presiding jiiitictf shall be prfesfent at the time and 
 place appointed'Tof holding it geubral term, the associate justice 
 present having the'Shorteit 'time to'sierve shall act ias presiding 
 justice until the presiding justice Shall attend, and in case one or 
 both of the associate justices 'shall not be present at the time' aud 
 place appointed- for' holding a general term, the presiding justice 
 
AFFSITDIX. 325 
 
 preseatmay select- any justice or ju^iqea -of., the supreme court 
 to hold with him such general term until such A^s^Qiciatei jjistice or 
 justices ^haiU attend. ■ ,,t 
 
 § 5ii9)iie general terms shall havcall the pow,ers and jurisdiction 
 which, under existing laws,inow belpng to the, general, terms of 
 the supreme courty.and all laws relating.to general. terms, as now 
 organized :within the judicial districts, and; taUieiearitig of appealfi 
 from judgments' pronounced and orders made within such district^, 
 if not inconsistent with the constitution or this act, shall apply, so 
 far as the same are applicable, to judgments pronounced and OTders 
 made within thie jqdicial departments,' and -to the general terms 
 instituted by this act. 
 
 § 6. Causes and matters pending in any general term instituted 
 fey this act may be entitled in the supreme court. The concur- 
 rence of two justices shall be' necessary to pronounce a decision. 
 If , two shall not concur, a reargument may be, ordered. In case 
 of sueh. disagreement, when any one of the three justices shall not 
 be qualified to sity the cause may be directed, to be heard in anothe;* 
 department;, The associate justices designated to. any department 
 shall be competent to sit in the general term of any other depart- 
 ment, .in place of any justice in such other depat:tment. 
 
 f 7. To prevent the failure of circuit courts, special tei'ms,.and 
 »x)urts of'oyerand terminer/ as the, same have .been heretofore 
 appointed for the years eighteen hundred and seventy andeighteen 
 JiTitldred and seventy-one; in consequence of the designation to be 
 made' of justices for service, in the generaltterms,! as provided] by 
 -thisigct, it shall, be. the duty of the governor,:on (the request of a 
 rjugtice in any judicial district, tb assign justices to hold. such; cifcpit 
 courts, special! terms and courts of oyer and terminer within guch 
 district ;; provided) however, .that the. justices in any district may 
 -themselves 'make provision fonthe h olding lof ij such courts. , At 
 least one month before the expiration of the year eighteen hnpi red 
 and seventy-one, the-justiees of the supreme court resident in each 
 'judicial department mentioned; in this act shall appoint the times 
 and places of holdingsspecial'.terms, circuit courts, and, courts of 
 oyer iand- terminer within their. idepartTOent,,for.i<two years, com- 
 mencing on the first day of January, eigbteea Ifundied^and seventy- 
 
326 APPENDIX. 
 
 two, and the like appointment shall be made for every two succeed- 
 ing years Ihereailer. 
 
 § 8. Pursuant to the twelfth section of the said sixth article of 
 the constitution, it shall be the duty of the governor, whenever 
 the public interest shall require, to designate one or more judges 
 of the superior court, or court of common pleas of the city and 
 county of New York, to hold circuits and special terms of the 
 supreme court in that city; such designation shall be in writing, 
 and fhall specify the time and place of holding any such circuit or 
 special term. When a case or bill of exceptions shall be made in 
 any cause tried at such circuit or special term, the same shall be 
 settled before the judge holding the same, and the review shall be 
 had at a special or general term of the supreme court, in the same 
 manner, and with the same effect, as if such circuit or special term 
 had been held by a justice of the supreme court. 
 
 § 9. The justices of the supreme court shall receive an annual 
 compensation of six thousand dollars each, payable quarterly, in 
 lieu of all other compensation, except that they shall receive, in 
 addition to such stated salaries, a per diem allowance of five dollars 
 per day for their reasonable expenses when absent from their homes, 
 and engaged in holding any general or special term, circuit court or 
 court of oyer and terminer, or in attending any convention, as 
 hereinafter provided, to revise the rules of said court, and no 
 greater sum shall be paid to the chief judge or any associate judge 
 of the court of appeals, or to any commissioner of appeals, than 
 five dollars per day for their reasonable expenses when absent from 
 their homes and actually engaged in holding any court of appeals 
 or commission of appeals, and all provisions of law inconsistent 
 with the provisions of this act are hereby repealed. But this 
 section shall not be construed to diminish the compensation now 
 received by the justices of the supreme court of the first and sec- 
 ond judicial districts. 
 
 § 10. All appeals and other matters proper to be brought before 
 any general term shall be heard and determined in the department in 
 which the judgment or order appealed from shall be entered, or in 
 which the matter brought up arose, unless two of the general term 
 justiaas in such department shall be incapable of sitting on the 
 
APPENDIX. 327 
 
 appeal or acting in the matter, in which case the appeal or other 
 matter shall be ordered to be heard in some other department; and, 
 in that case, such appeal or other matter shall be heard and deter- 
 mined in the department to which the same shall have been ordered 
 as aforesaid. 
 
 § 11. Bach general term shall be attended by the sheriflF of the 
 county in which any session shall be held, or one of his deputies, 
 and by two constables or police officers, to be summoned by the 
 sheriff; and by a crier for courts within the county, and by the 
 county clerk or his deputy, all of whom shall act under the direc- 
 tion of the court, or of the presiding justice ; and the sheriff of the 
 county shall see that the room in which the general term shall be 
 held is properly heated, ventilated, lighted, and kept comfortable, 
 clean and in order ; and he shall provide the court with necessary 
 stationery during its sittings. 
 
 § 12. The fees of criers, sheriffs, constables and police officers 
 for attending general terms, and all expenses incurred by sheriffs 
 under and pursuant to the preceding section of this act, shall be 
 audited by the comptroller and be paid out of the treasury of the 
 State. All fees and proper charges of clerks for services rendered 
 at or preparatory to any general term, not legally chargeable to 
 attorneys or parties in cases or matters brought before the gen- 
 eral term, shall be a county charge. 
 
 § 13. All rules of the supreme court now in force, n< t incon- 
 sistent with the constitution or any statute of the State, shall 
 remain in force until abolished or altered by the general term jus- 
 tices, the chief judge of the superior courts of cities, the chief 
 judge of the court of common pleas of the city of New York 
 and of the city court of Brooklyn in convention assembled at the 
 eapitol in the city of Albany. A convention of such justices and 
 chief judges shall be held at the place aforesaid, on the first Wed- 
 nesday in August, eighteen hundred and seventy, and every two 
 years thereafter; and such convention shall revise, alter, abolish 
 and make rules, which shall be binding upon all courts of record 
 so far as they may be applicable to the practice thereof A major- 
 ity of said justices shall constitute a quorum, to do business in the 
 premises, whether said chief judges shall be present or absent; 
 
S2S APPENDIX. 
 
 but each' justice and chief judge shall be entitled to vote on all 
 matters whicjh shall come before the conventions. 
 
 § 14. The governor may, whenever in his judgment the publip 
 good shall require it, appoint extraoFdinarj general terms, circuit 
 courts, and special terms of the supreme court and courts of oyCT 
 and terminer, and he shall designate the ti^e and place the same 
 shall be heldj aad name: thi? justice who, shall hold the extraorfii- 
 nary circuit or special term, or preside in such court of oyer and 
 terminer, and he shall give notice of such appointment in .-.u^b 
 manner as he may believe the public good requires. 
 
 § 15. In any action which was referred to a justice of the 
 supreme court, and was pending and undetermined on the first 
 day of January, eighteen hundred and seventy, and in which tes- 
 timony had been taken, the supreme court, at a special term 
 thereof, may in its discretion order the evidence so taken, and the 
 proceedings had in such action, to stand, and have the same force 
 and effect in the further prosecution of said action or the defensp 
 thereof before the court as if such evidence had been taken or 
 proceedings had before the court. 
 
 § 16. At the election directed to he held on the third Tuesday 
 of May, eighteen hundred and seventy, under the provisions of 
 chapter eighty-six of the laws of eighteen hundred and seventy, 
 there shall be chosen by the electors of the city and county of New 
 York, a judge of the court of common pleas of said city and county 
 in the place of John R. Brady, who has resigned his office, and the 
 said judge so to be elected pursuant to this act shall enter upon his 
 official duties on the first day of January next,. at which time the 
 term of office of the preseiit incumbent holding by appointment 
 from the governor will by law expire. 
 
 § 17. This act shall take effect immediately. 
 
APPKNDIZ. 329 ' 
 
 Chaptee 86. 
 
 AN ACT to provide for an election of Chief Judge and 
 Associate Judges of the Court of Appeals, and Judges 
 of the Court of Common Pleas of the city and county 
 of N«w York. 
 
 EA88BD Maich sa, 1870 ; three-fifths being present 
 
 Thi Peoph of the State of New Torh, represented in Senate and 
 Assembh/, do enact as follows : 
 
 Section 1. A chief judge and six associate judges of the court 
 of appeals shall be chosen by the electors of the State, on the third 
 Tuesday of May next, pursuant to the judiciary or sixth article of . 
 the constitution. The names of all persons voted for at such elec- 
 tion, by any elector, shall be upon one ballot, which shall designate 
 the person voted for as chief judge, and the persons voted for as 
 associate judges, and no elector shall vote for more than the chief 
 judge and four of the associate judges. Such ballot shall be 
 indorsed' "judiciary," and the inspectors of election shall provide 
 a box, labeled "judiciary," in which the ballots shall be deposited- 
 The person receiving the highest number of votes as chief judge, 
 and the six persons receiving the highest number of votes for 
 associate judges shall be deemed cjiosen at such election. 
 
 § 2. At the same election there shall be chosen by the electors 
 of the city and county of New York, three additional judges of 
 the court of common pleas of said city and county, as required 
 by the said sixth article of the constitution. The names of tlie 
 persons voted for shall be upon one ballot, which shall be separate ~ 
 from the ballot mentioned in the preceding section, and shall be 
 indorsed "judiciary, common pleas!" The inspectors shall keep a 
 box, labeled "judiciary, common pleas," in which the ballots shall 
 be deposited. The three persons receiving the highest number of 
 votes shall be deemed chosen at such election. 
 
 § 3. Notice of such election shall be given and publinhed for not' 
 less than four weeks preceding the same. A.s to the ihief judge 
 and associate judges of the court of appeals, the notir« shall be^ 
 given as now required by law in reference to general el^Ttioos, and. 
 
330 APPENDIX. 
 
 as to judges of the said court of common pleas in New York, it 
 shall be given 8S now required in reference to local elections in 
 that city. No omission of notice shall invalidate any election pro- 
 yided for in this act. 
 
 § 4. At such election the registry of votes, if any such registry 
 of votes be required by the then existing law, prepared and used 
 at the last preceding general or charter election, as the case may 
 be, shall be used, but the inspectors of election shall meet in their 
 several election districts, on the Friday and Saturday preceding the 
 election, to revise, correct and complete, and shall revise, correct 
 and complete the said registry, in the manner now required by law 
 in reference to general and charter elections, if such registry shall 
 then be required by law. 
 
 § 5. The board of State canvassers shall meet on the second 
 Tuesday of June next, to canvass the votes for chief judge and 
 associate judges of the court of appeals, and shall thereupon pro-, 
 ceed according to existing laws ; and, except as in this act other- 
 wise provided, ill laws in force at the time, in respect to the holding 
 of elections, tie qualifications of voters, the punishmept for illegal 
 voting, the canvassing and return of the votes, and all laws pre- 
 scribing the duties of inspectors, officers and boards in reference 
 to elections, shall apply tp the elections authorized by this act, so 
 far as the same shall be applicable thereto. Any vacancy in the 
 office of inspector of election, in any election district in the State, 
 shall be filled in the manner provided by law, on or before the day 
 of such election. 
 
 § 6. The additional judges of the court of common pleas of the 
 city and county of New York, to be elected pursuant to this act, 
 shall enter upon their official duties on the first Monday of July 
 next, and shall take the oath of office on or before that day. 
 
 § 7. The chief judge and associate judges of the court of appeals 
 shall meet at the capitol, in the city of Albany, on the first Monday 
 of July next. They shall then, or before that time, take the oath 
 of office, and shall thereupon enter upon their official duties. 
 
 § 8. Every person elected chief judge or associate judge of the 
 court of appeals, whether at the first or any subsequent election,, 
 and every person hereafter elected justice of the supreme courtj 
 
APPBSDIX. 331 
 
 jiidge of the superior court of the city and county of New York, 
 or of the court of common pleas of said city and county, or of the 
 superior court of the city of Buffalo, or the city court of Brooklyn, 
 or of any county court, shall, within ten days after he enters on 
 the duties of his office, make and sign a certificate in which he 
 shall state his age and the time when his official term will expire, 
 whether by effluxion of a full term or by reason of the disability 
 of age prescribed in the constitution. The certificate shall be filed 
 in the office of the Secretary of State ; and the Secretary of State 
 shall keep in his office a record in which shall be stated the name 
 of every person elected or appointed to any office in this section 
 specified, and the time of the commencement and termination of 
 his official term. 
 
 § 9. When the official term of any justice or judge of the coui-ts 
 mentioned in the last preceding section, except county judges, will 
 expire at the close of any year, by the effluxion of time or the 
 disability of age, the successor of such justice or judge shall be 
 chosen at the preceding general election. Vacancies otherwise 
 occurring in the said offices shall be filled in the manner prescribed 
 in the ninth section of said sixth article of the constitution. 
 
 § 10. This act shall take efiect immediately. 
 
 Chapteb 467. 
 AN" ACT in relation to the County Courts. 
 
 Passed April 28, ISTO ; three-fif tlia being present. 
 
 The Pecfple of the State of New York, represented in Senate and 
 Assembly, do enact as follows : 
 
 Section 1. The county courts, in addition to the powers they 
 now possess, shall have jurisdiction in civil actions where the 
 reUef demanded is the recovery of a sum of money not exceeding 
 one thousand dollars, or the recovery of personal property not 
 exceeding in value one thousand dollars, and in which all the 
 defendants are residents of the county in which the action is 
 brought at the time of its commencement, subject to the right of 
 the supreme court, upon special motion, for good cause shown, to 
 28* 
 
332 APPEHDIX. 
 
 remove any such action into the supreme court before trials and 
 also, on such removal being made, to change the venue or place 
 of trial Xhey' shall have such appellate jurisdiction as is now, 
 provided by law. 
 
 § 2. Costs in the county courts, in actions authorized to be 
 brought therein by the preceding , section, shall be the same, and 
 shall be recovered in the same cases only, as in the like; actions in, 
 the supreme court 
 
 § 3. Power ofilooal legislationiis hereby conferred on theseveral] 
 boards ' of supervisors to establish, by local ' law applicable to their 
 several counties,' the salary of the county judge^^ and of tiie surro-, 
 gate when elected as separate officer, such salaries to be payable 
 out of the county treasury; provided that the salary pfino county; 
 judge or surrogate' shallj when once soestablisbed, be diminished 
 during his term of office.: ' , ,; 
 
 § 4i It shall be lawiiil for the boards of supervisors of ,th^ several 
 counties to authorize -the surrogate therein to employ the neces* 
 satj' clerks, and the said boards shall fix the compeasatioa to be 
 paid such clerks. 
 
 § 5. This act shall take effect immediately. 
 
 STATROF NEW TOKK, 1" 
 
 OlTIOX OF THE SECBEIABT OV STATO. f 
 
 I have compared the preceding with the original laws on file in this office, and 
 do hereby certify that the same are correct tRmsciipts therefrom and of the whole 
 of said original laws. ' HOMEB A. SGELSON^ 
 
 Secretary (^ State. 
 
IK-DEX. 
 
 THE FlOmUSS AT THE BIOHT HANS DENOTE THE FAGB, THE OTHERS 
 DENOTE TEE SECTION. 
 
 A. 
 
 Abatement, pass. 
 
 Of action, 131, 84 
 
 Abecondbig Debtor!, 
 
 Attachment of, 238-243, 14&-1E3 
 
 Service of enmmons on, 186, 9iB 
 
 Absence, 
 
 Of defendant, effect of^ as to limitation, lOO, .* 73 
 
 Action against absent defendant, 135, 93 
 
 Accaant, 
 
 Action for balance, 54,...^...,.. 43 
 
 In what time to be brongbt where mntnal accounts, 9S, 69 
 
 AetiCode) 
 
 Division of 8, 4 
 
 When to take effect, 473, 315 
 
 Action, 
 
 Definition o( 3, 4 
 
 Action and salt, distinction abolished, 69, 59 
 
 To-be but one form of, 69, ■.-...-. 59 
 
 Kinds of, 4, 4 
 
 Oiimlnal defined, 6, 4 
 
 Civil, defined, 6 4 
 
 Civil, how commenced, 127 88 
 
 When deemed commenced, 99, 71 
 
 When to be commenced, 74, ^ 
 
 Parties to (see Plaintiff and Defendant). 
 
 Pleadings in (see Pleading, Complaint, Answer and Demorrer). 
 
 Bv executor or administrator (see Executor). 
 
 When no personal claim on defendant, 130; 90 
 
 For partition of real estate, 448, ;...... .. . 906 
 
 Kelating lb real property, "455, ■ 308 
 
 Existing, provisions relating to', 453, 307 
 
 Oncharterorby-lawofcorporation, 66, 67...... 66,67 
 
 Against ball, 190, 130 
 
 Tune of, limitation in, 89,etseQ.,. OT 
 
 Title of, not altered by appeal, Wk,... 383 
 
 III name of the people, 98, 69 
 
 By attorney-general, 429446, 301-306 
 
 OnaJndgihent,wlien allowed, 71,... 60 
 
 Unst be prosecuted by party In interest, HI, 77 
 
 May be maintaiiied by grantee of land in name of grantor, when. 111, . . 77 
 
 Kot abated by death, 121, t4 
 
S34 
 
 IKDEZ. 
 
 PASE. 
 
 Court may order abatement, 121, 84 
 
 Where to be tried, 123-126, 86-B8 
 
 Inferior court, etc., review of proceedings, costs on, 818, 230 
 
 Against foreign corporations, 427, 300 
 
 In place of scire facias, qno warranto, etc., 428,, - 801 
 
 To determine conflicting claims to real property, etc., 449, 307 
 
 I'or discovery, abolisbed, 889, ■. 277 
 
 AdmlnUtrator, 
 
 Not to be sued in justices' courts, 64, 43 
 
 Hay sne without joining party interested, 113, 78 
 
 Costs in actions by afld against, 317, 230 
 
 Admission of Debt, 
 
 Must be in writing, 110, 76 
 
 Of written dacnments, 388, 276 
 
 Adverse claims to Property, 
 
 To be tried by action, 449, 307 
 
 Adverse Possession, 
 
 WTiat constitutes, 83-85, 64,65 
 
 Affidavits, • 
 
 Jintitling of; 406, 294 
 
 Service of copy with order, 220, 405, 141,294 
 
 When taken as true, 168, 118 
 
 When deemed controverted, 168, 118 
 
 Unproved, not a variance, 171, - 119 
 
 Variance between, and proof; 169, 119 
 
 Alien Enemy, 
 
 Action by or against, 103, '. 74 
 
 Allowance, 
 
 Additional costs, 308, 224 
 
 In proceedings after execution, 301, 211 
 
 Amendment, . 
 
 Ofcour8e,172, 120 
 
 On terms, 173, 122 
 
 Of defendant's name, 175, 123 
 
 Ofvariance, 169, 170, 119 
 
 Of afldavit for arrest after demurrer, 174, 122 
 
 After notice of appeal, 387, 233 
 
 Of complaint, service of copy, after, 146, 105 
 
 Error (see Error). 
 
 Answer, 
 
 When to be put in, 143, 104 
 
 What it must contain, 149, 107 
 
 Number of defenses in, 150, 107 
 
 When allowed with demurrer, 151, 108 
 
 Sham, may be stricken out, 152, 108 
 
 Not replied to, or demurred to, 154, Ill 
 
 Material allegations in, 168 118 
 
 With offer that damages be assessed at specified sum, 386, 887, 275, 276 
 
 Of title in justices' court, 55, 44 
 
 Inactionoflibel, or slander, 164, 165 115 
 
 In action to recover real property, 166, 115 
 
 After amendment, 174, '.'.'.'.".. 122 
 
INDEX. 335 
 
 PAGE. 
 
 Fnithcr time to answer, 174 122 
 
 - Supplemental, when allowed, 177, 123 
 
 Amendment of, 172, 120 
 
 Frivolous, judgment on, 247, 162 
 
 Who may appeal, 325 233 
 
 Parties, how designated on, 326, 233 
 
 Title of cause on, 326, 233 
 
 Costs on, 30t 221 
 
 Costs, when in discretion of court, 306, 215 
 
 From an order out of court, 324, 232 
 
 How made, 327, 233 
 
 Notice ot may be amended, ^327, 233 
 
 Copy, notice and judgment roll to he sent to appellate court, 328, 233 
 
 If appellant does not cause return, respondent may, 32S, 23S 
 
 Prom a judgment, power of court, 329, 234 
 
 Fromjudymeut or order, 330, 234 
 
 When to he taken, 331, a32, 234, 235 
 
 To Court of Appeals, when to he taken, 50, 333, 36,235 
 
 Prerequisites, 334, 236 
 
 With stay of execution. 335, 333 237, 238 
 
 Effect of, on court below, 339, 239 
 
 Undertakings and sureties on, 340-343, 239-241 
 
 Undertakings, service of copy o^ 340, . 
 Effect of, in certain cases, 342, 
 
 240 
 
 To supreme court, in what cases, 344, 242 
 
 Security on, 345, 242 
 
 How heard, 346, 242 
 
 Judgment on, 347, 242 
 
 To general term, from supreme court, snoerior court and common 
 pleas. New York, from judgment on direction of single judge or 
 
 referee's report, 3^j 244, 
 
 From t irder of single judge, 349, 246 
 
 Froni recorder's court, 349, 246 
 
 From county court or judge, 349, 246 
 
 From order made out of court, ^, 246 
 
 To review justices' judgments, 351, 247 
 
 to common pleas, when, ^2, 249 
 
 to county court, 352, 249 
 
 proceedings by appellant, 353-356, 251-254 
 
 a stay of execution, when, 357 254 
 
 proceedings by respondent, 359, 255 
 
 when to be beard, 364, 259 
 
 when dismissed for want of prosecution, 
 
 364, 259 
 
 hearing to be on original papers or certi- 
 
 fiea copies. 365 259 
 
 judgmeut, how given, 366, 262 
 
 new trial on, 36C 258 
 
 costs on, 368, 371, 264,267 
 
 From surrogates^ courts, 471, 314 
 
 Superior court, New York, transferred cases, 50, 36 
 
 Conrtof Appeals, jurisdiction of, 11.333, 13,235 
 
 extent of jurisdiction, 12, 14 
 
 judgments of, bow pronounced, 14, 18 
 
 terms pf. 13, 17 
 
 causes on calendar, 13, 17 
 
 preferred causes, 13, 17 
 
 when may be held, 16, 19 
 
 adjournment of. 16, 19 
 
 rehearing in, when, 14, .- 13 
 
 opinions in, when to be filed but not published, 14^. .. ' 18 
 
 rooms to be provided for, 15, 19 
 
336 INDEX* 
 
 Appelant, vi.es. 
 
 Defined (see Appeal), 326, > 2% 
 
 Appearance, 
 
 Notice of, effect of, 246, • 161 
 
 Ofin&nt, tobeby gaardian, 115, 79 
 
 Volnntary, equivalent to service of snnunons, 139, 108 
 
 Arrest, 
 
 In -wliat cases, 178, 179, 124,126 
 
 Offemale,.179, 126 
 
 Order for, of whom obtained, 180, 126 
 
 When to be made, 181, 127 
 
 Prerequisite of making order (nndertaking), 182, 127 
 
 Order for, when to be made and what to contain, 183, 128 
 
 to he delivered to sheriff,. 184, „ 128 
 
 cop7 to be delivered to defendant, 184, 128 
 
 effect of not delivering copy; 183, 128 
 
 how executed, 185, 128 
 
 Defendant, how discharged from, 186, _ 129 
 
 Order lor, motion to vacate, 204, 135 
 
 If plaintiff neglect to enter judgment or issue execution defendant 
 
 . may be diBcharged from, how, 288, 199 
 
 (See Bail; Deposit j Sheriff.) 
 
 Amatilt and Battery, 
 
 Action for, 54, _ 44 
 
 Onboard merchant vessels, 65, SS 
 
 Time of limitation, 93, _ 68 
 
 Assigtwe, 
 
 Of thing m action, action by, 112, 77 
 
 liable for costs, S21, .' 231 
 
 Assignor, 
 
 Of thing in action, when may not be a witness, 399, 287 
 
 Assi^ment, 
 
 Of <:hing in action, effect o^ 112, 77 
 
 Assistant Justices' Courts. (See Justices' Courts;) 
 
 Style of, 66, 56 
 
 Attachment, 
 
 May issue, in certain cases, 227, 145 
 
 From whom to be obtained, 228, 145 
 
 How obtained, 229, .-. 146 
 
 Before issuing, plamtiff must give nndertaking, 230, 146 
 
 To whom directed, 231, 147 
 
 Several may issue, 231, 147 
 
 Sheriff's duty thereon, 232, 147 
 
 Proceedings on, in case of perishable property or claim of third party or 
 
 interest in vessel, 233, 147 
 
 On shares in stock of any association, 284, 147 
 
 On propierty incapable of manual delivery, 235, .' 148 
 
 Defendant to furnish sheriff with schedule of property, 986, : 148 
 
 Sheriff's duty where judgment for plaintiff, 297, 149 
 
 Action authorized to be broug-t by sheriff may be prosecuted by plaint- 
 iff, 238, .....: 150 
 
 Sheriff 's duty where judgment for defendant, 239, 160 
 
 Proceedings to discharge, 240, 241, 150,151 
 
 Sheriff to return, 242, 168 
 
 Fees to sheriff on, 243, 153 
 
 Plaintiff to cause affidavits on which procured to he filed, 1^, 146 
 
 Court may order sale of property attached, when, 287, '.'.". 149 
 
 Notice of application for sale to be given, 287, 149 
 
rUBEX. 331 
 
 Attorney^ page. 
 
 (See District Attorney), 96, 69 
 
 Attorney- General^ 
 Actions by, in place of scire facias and quo warranto, in wIisl cases, 
 
 439^446, 301-306 
 
 Pleadings in action by, verification of, 157, 112 
 
 BaU, 
 
 Discharge from arrest npon, 186, 129 
 
 How given, ISr, 129 
 
 Defendant may give at any honr and shall have reasonable opportnnity 
 
 to fnmish, iS6, 129 
 
 Surrender in discharge of, 188, 130 
 
 Power of, to arrest defendant, 189, 130 
 
 How proceeded against, 190, 130 
 
 How exonerated, 191, 131 
 
 Sheriff to deliver copies of undertakings o^ to plaintiff, 192, 131 
 
 Notice of not accepting, 192, * 131 
 
 When deemed to be accepted, 192, 131 
 
 Noticeof jostifying, 193, 132 
 
 Qualifications of; 194, 132 
 
 Howtojnstily, ISB, 1 :. 133 
 
 Allowance of, 196, ; 133 
 
 Giving bail after deposit, 199, 134 
 
 Deposit instead ot now disposed of alter judgment, 200, 134 
 
 Taken on arrest, l-able to sheriff, 203, 135 
 
 Motion to reduce amount oJ; 204, .. . .' 1:© 
 
 How exonerated, 191, ; 13l 
 
 Balance of Account. 
 
 (See Account), 43 
 
 BatUAng Associations^ 
 
 Actions against directors of; 109, 75 
 
 BiUs of Exchange and FromisscrrT/ Notes, 
 ABSignee of, action by, 112, 
 
 Of surety, action on in justices' court, 53, 
 Certain judgment, how entered on, 424, — 
 
 By-Law^ 
 
 Ofcorporationof New York, action on, 66, 66 
 
 Of cities, action on, 67, 57 
 
 C<Uendar, 
 
 Clerk to enter issue on, 256, •. ., 168 
 
 Issues on, how disposed of, 257, 171 
 
 Of courts ofappealB, court to provide forpreference of causes on, 13, 17 
 
 (See Issue.) 
 
 To review evidence, and how settled, 268, 180 
 
 29 
 
338 INDEX. 
 
 Cauie of, Action, pasb. 
 
 When it accmes where mutual accomitt), 95, B9 
 
 Incases of fraud, 91 67 
 
 RevlTa) of, 110,7.... 76 
 
 Chamber/, 
 
 BnsineBS at, 27, 25 
 
 Order at, how Tacated, 324, 232 
 
 appeal from to general term, 348-350 244-246 
 
 Clmrter, 
 
 Action upon, of corporation of Hew York, 66, 56 
 
 ofcitieB,67, 57 
 
 drcuU Courts, 
 
 Repeal of statntes relating to, 17, 20 
 
 Namber of terms of, 20, 22 
 
 How appointed, 22, 23 
 
 Extraordinary, now appointed, 23, 23 
 
 Places and times of holding, 24, 24 
 
 Where to be held, 21, 22 
 
 Proceedings when jndge nnable to hold, 26, 25 
 
 Supervisors or sheriff to provide room for holding, 28, 25 
 
 Circuit Judges, 
 
 How designated, 22, 23 
 
 Appointment of, to bepablished, 25, 24 
 
 Unable to hold circuit, 26, 25 
 
 Shall transact business out of court, 27, 25 
 
 Civil Action, 
 
 Defined (see Action), 6, 4 
 
 Claim and Delivery of Vereonal Property, 
 (See Personal Property.) 
 
 Clerk, 
 
 Defined, 466, 311 
 
 Duties of, on entering judgment, 281, 191 
 
 on appeal to transmit copy, notice and roll to appellate court, 
 
 on confession of judgment, 384, 273 
 
 to keep a judgment book, 879,.. 190 
 
 to attach papers to form a judgment roll, 281, 191 
 
 to compute interest, 310, 227 
 
 to insert costs in judgment, 311, 227 
 
 Tees to, 132, 312, 93,228 
 
 ComnMtte, 
 
 Ofpersonofnnsound mind, service of summons on, 134, 94 
 
 Common Law, 
 
 Snle of, as to construction ox this statute altered, 467, 312 
 
 Of other states, evidence of, 426, 299 
 
 Common Pleat, late Courts of. 
 
 Powers of; conferred on county court, as to ferries, fisheries, etc., 30, . . . 30 
 
 Common Pleas, New York Court of. 
 
 Jurisdiction, 33, 34, 33, 34 
 
 Terms of, 35, 36, 35 
 
 Judgment of, 37, 35 
 
 May review ja^ment of marine Emd justices^ courts, 34, '.'.'.'.'.'.'.'.'. 34 
 
 Removal of actions in, to supreme court, 33, 34 
 
INDEX. S39 
 
 Complaint, faob. 
 
 The first pleading by plaintiff, 141,. 103 
 
 What to contain, 142, 101 
 
 May contain several causes of action, 167, 117 
 
 Inactions of libel or slander, 164, 115 
 
 Items of account in, 158, 113 
 
 Material allegations in, 168 118 
 
 No copy need be served with summons, 130, 90 
 
 Supplemental when allowed, 177, 123 
 
 If amended, copy must be served, 146, ., 105 
 
 Service of, where publication ordered, 135, 98 
 
 Filing of, 416, 297 
 
 In action where no personal claim, 131, 90 
 
 In actions against several defendants, may be dismissed lor neglect to 
 
 serve summons on some defendants, 274, 188 
 
 (See Pleading; Amendment.) 
 
 ■ Compromise, 
 Offer of, 385, 387, 275,276 
 
 vomputalion, 
 
 Oftime,407, 254 
 
 Conditional Examination, 
 
 Ofparty to action, 390, 277 
 
 Condition Precedent, 
 
 Performance o^ how pleaded, 162, 114- 
 
 Of judgment without action, 382-384,. 
 In justices' courts, 63, 
 
 Conflicting Claims, 
 
 To real property, 449, 3D7 
 
 To personal property, 216, 139 
 
 Constables, 
 Time of limitation in action against, 92, 
 
 ConstmetUm, 
 
 Of pleading, 159, 114 
 
 Of this statute, common law rule not to apply, 467, 312 
 
 Contempt, 
 
 Service of process, to bring into, 418,.. - 297 
 
 Proceedings for. not affected, 178, 124 
 
 Disobeying order of judge or referee, 302, 211 
 
 In not attending examination. 394 279 
 
 Controeerey, 
 
 May be submitted without action, 372, 200 
 
 Copy Pleadings, etc., 
 
 Flaintifftofnmish, on jnry trial, 259, 178 
 
 Hay be substituted, where original is lost or withheld, 422, S98 
 
 Coroner, 
 
 Duty of, where sheriff a party, 419, 
 Action against, for escape, 9^ 
 
340 INDEX. 
 
 Corporations, paqb. 
 
 Actions against, 134, 135, 94-98 
 
 Moneyed, to enforce payment of biUs of, 108, "75 
 
 Suspension of business of, 234, 143 
 
 By-law or charter, action on, 66, 67, 56, 57 
 
 Reli£[ions, sale or mortgage of real property, 30, 28 
 
 Foreign, actions against, 427, 300 
 
 service of summons on, 135, 98 
 
 actionBagain8t,-inplaceof quo warranto, etc., 429, 430, 301,302 
 
 Costs, 
 
 Former laws respecting, repealed, 303, 212 
 
 geflned,303, 212 
 
 f course, to plaintiff, when, 304, 213 
 
 defendant, when, 305, . . . ; 214 
 
 In other cases, 306, ' 215 
 
 Amount of, when allowed, 307, 221 
 
 Additional, when allowed, 308, '... 224 
 
 how estimated, 309,.. 226 
 
 And interest, when allowed, 310, 227 
 
 or postponement, 314, 228 
 
 How a^Qusted, 311 227 
 
 Notice of a^nstment, 311, 227 
 
 Motion, 315, 229 
 
 Of judgment by confession, 384, 273 
 
 When answer of title injustices* court, 57, 59, 45, 46 
 
 In actions removed from courts of justices of the peace, 61 , 47 
 
 On review of special proceedings in inferior court, 318, 230 
 
 surrogates* decrees, 318 230 
 
 In actions by infants, 316 229 
 
 executors, etc., 317, 230 
 
 in name of the people of state, 819, 320, 230,231 
 
 where cause of action assigned. 321 231 
 
 settled before judgment, 308, 322 : 224,231 
 
 against several defendants, 806-, 215 
 
 On appeal, when in discretion of court, 306, 215 
 
 from justices* coart, where judgment affirmed, 368. 264 
 
 reversed, 368, 264 
 
 affirmed in part, 368 264 
 
 where judgment paid or collected and 
 
 afterward reversed, 369, 264 
 
 where recovery by one party, and award 
 
 ofcoets toother, 370 ... 264 
 
 amount of costs on, 371, 267 
 
 After notice of no personal claim, 131 90 
 
 In proceedings supplementary to execution, 301, 211 
 
 Security for, when may be required, 317, 230 
 
 Coumter Affidavits, 
 
 When may be used, 226, 144 
 
 » 
 
 Counter Claim, 
 
 Defendant may set up in answer, 149, 107 
 
 What may be set up as, 150, 100 
 
 Reply or demurrer to, 153, 117 
 
 County Court 
 
 Certain suits in, transferred to supreme court, 62, 48 
 
 Statutes relating to, repealed, 29, 26 
 
 Jurisdiction of, 30, ■ ■ ■ 30 
 
 May grant new trials, 30 30 
 
 Termsof,81, 30 
 
 Jury in, 32, 31 
 
 Transfer of suits to, from mayors* and recorders* courts, 33, 34 
 
INDEX. 341 
 
 PAGE. 
 
 Jadgment in, on flling jastice''8 transcript, 63^ 49 
 
 In snpplemeBtai7_ proceedings when jadjge iac&pacltated, 293, 206 
 
 Transfer of snits in, wliere judge incapable of acting, 30, 30 
 
 County Judge. 
 
 Powers of, in actions in supreme conrt, 403, 293 
 
 Court of Appeals. 
 (See Appeals.) 
 
 CourtSy 
 
 In general, enumerated, 9, ..." "^ 
 
 JnnBdiction of, 10 (see title of each, conrt), : 7 
 
 Crier^ 
 
 Of superior conrt, appointment of, 39, ... 35 
 
 salary of, 39, 85 
 
 Crtminai Action, 
 
 Defined, 5, 4 
 
 Criminal Conversation, 
 
 Action for, 54, -. < 43 
 
 limitation of, 91, -. 67 
 
 D. 
 
 Death, 
 
 Of party to action, effectof, 121, 84 
 
 Of jnBtice,. 363, - 258 
 
 Effect 0^ on time of limitation, 102, 74 
 
 Debtors^ 
 Absconding (see Attachment). 
 
 Of jadgment debtor, proceedings to examine, 294, 207 
 
 Decree, 
 
 Action on, within what time, 90,- 67* 
 
 Defatdt, 
 
 (See Jadgment on failure to answer), 246, ' 161 ' 
 
 i>tfendant. 
 
 Definition of, 70 60 
 
 May demur or answer, 143, 104 
 
 Who to be m»de, 118 89 
 
 joinedas, 119, 82 
 
 Where name of, unknown, 175^ ...-.- 123 
 
 Entitled to copy order, etc., when arrested, IS-i, 128 
 
 How discharged from arrest, 186, 1^ 
 
 Surrender of, in discharge of bail, 189, '- 130 
 
 May be arrested by bail, 189 130 
 
 How he may exonerate bail,191, 131 
 
 May give notice of justifying bail, 193, 132 
 
 May make deposit instead of bail, 197, 133 
 
 If judgment in fevor of. deposit returned, 200, 134 
 
 Arrested, escape of. 201, 135 
 
 May apply to vacate order for arrest, 204, 135 
 
 reduce amount of bail, 204 135 
 
 In action where claim of delivery of personal property made, proceed- 
 ings by, 210-213, 133,139 
 
 *29 
 
342 IHDEX. 
 
 Demurrer, page. 
 
 When may be pat in, 144, 104, 
 
 Within what time to be put in, 143, 10* 
 
 What to specify, 145, 105 
 
 When right waived, 148, 106 
 
 And answer, when allowed, 151, 108 
 
 To a reply, when allowed, 155, Ill 
 
 Amendment of, 174 IS* 
 
 Party may be allowed to plead over after decision on, 173, 131 
 
 Proceedings on judgment, 269, 181 
 
 Frivolous, Indgment on, 247, 162 
 
 (See Issae ; Pleading.) 
 
 Dq^oait, 
 In en of bail. (See Bail ; Sheriff.) 
 
 DeterminalUm of Controverey, 
 Powei of conrt to effect, 122, 85 
 
 Devisees of Judgment Debtor, 
 Proceedings against, 376-381, 871,272 
 
 Disabilities, 
 
 What are, 88.101, 66,73 
 
 When not available, 106, 75 
 
 When two or more exist, 107 75 
 
 Of party not to abate action, 121, 84 
 
 (See Limitation.) 
 
 Disbursements, 
 
 To he detailed and verified (see Costs), 311, 227 
 
 Ketarn on appeal may be charged as, when, 338, 233 
 
 Discovery, 
 
 Bill of, abolished, 389, 277 
 
 snbstitate therefor, 390, 377 
 
 Distrained Property, 
 Doing damage, pleadings in actions for, 166, 113 
 
 District, 
 Definition of, 465 311 
 
 District Attorney^ 
 Action by, for penalty, 96, 69 
 
 District Courts in city of New Tork. 
 
 Jnrisdiction o<; 66 56 
 
 Stenographer in, 66, 66 
 
 fees of, 66, 56 
 
 Division, 
 
 Of remedies, 1, -. 3 • 
 
 Of act,8, 4 
 
 Divorce, 
 
 Publication of summons In action for, 135, 9S 
 
 Action for, to be tried by jury, 253, 164 
 
 Docketing Judgment. 
 (See Transcript.) 
 
INDHX. 343 
 
 Document. page. 
 
 (See Paper.) 
 
 Dower, 
 AdmeaBnrement of , in county conrt, 30, 
 
 Drunkard, 
 Habitnat, cnBtody of, 30, 
 
 E. 
 
 ■When act to take, 473, 315 
 
 Enlarging Time. 
 (See Time.) 
 
 Entry, 
 On real estate, 80, 64 
 
 Error, 
 
 Writ of, aboliBliea, 323, 232 
 
 In pleading (see Amendment ; Variance). 
 
 Not affecting enbstantial riglits, 176, 123 
 
 merits, 366, 262 
 
 Action for, limitation in, 94,. 
 
 Written, admission, etc., of papers, 388, 276 
 
 Verbal, of party to action, 390, 277 
 
 interested, 398, 281 
 
 of assignor of chose in action. 399, 287 
 
 (See Witness.) 
 
 of foreign laws, reports, etc., 426, 299 
 
 review of, 268, 180 
 
 To decision on matter of law at trial, how and when to be taken, 268, ... 180 
 
 Writ of, modiaed, 283, 194 
 
 When it may issue, 283, ^ 194 
 
 After expiration of time limited, can only be issued by leave of conrt, 
 
 284, 195 
 
 Leave to issue, how obtained, after five years, 284, 195 
 
 When leave not necessary, 284, 196 
 
 Kinds of, 286, 197 
 
 Process of court, 286, 197 
 
 Need not be sealed, 286, 197 
 
 Form of, and what to contain, 289, 199 
 
 Against property, to what sheriffs may be issued, 287, 197 
 
 ^y be Issued at the same time to different counties, 2 ^7, 197 
 
 Against the person, when and where may isBue, 2S8 198 
 
 When and where returnable, 290, 200 
 
 Against married women, 287, 198 
 
 On judgment by confession. 384, 273 
 
 On judgment for recovery of personal property in justice^ conrts, S3, ... . 4St 
 
344 
 
 IJTDBX. 
 
 On indgment in jnsticea' court, 64, . . . 
 
 Existine law, not conflicting, retained, 291, 200 
 
 Proceedings enp_plementary to, 392, aod 
 
 I^etarned nnsatiBfied— judgment creditor entitled to order to examine 
 
 judgment debtor, 292, ,., ..v 204 
 
 Order to examine judgment debtor, how ind from whom obtained, 292, . 204' 
 
 Warrant instead of oHler may issue in certain caees, 292, 204 
 
 Examination of judgment debtor, how had, 292, 204 
 
 Jiidgment debtor to.give-bail for his appearance, etc., or be committed,' , . - 
 
 298, 204 
 
 Alter retnm of, unsatisfied, debtor to judgment debtor, may pay sheriff, 
 
 293 ; 206 
 
 After return of; unsatisfied, debtors to' judgment debtor, may be ex- 
 amined, 294 207 
 
 Witness and party may be required to attend and be examined, 29BJ 296, 207 
 
 Reference may be ordered, 296, ,-. , 307 
 
 Jndgemay orderproperty to be applied to liquidate judgment, 297, 208' 
 
 Receiver may be appointed, 298 (See Eeceiver), 209 
 
 Receiver may sue, 299, V. 310 
 
 Costs and allowance to witness, 301, : 211 
 
 When county judge incapacitated from acting, 292, 205 
 
 And administrator not to be sued in justices' courts, 54, 43 
 
 May sue without joining party interested, 113, 78 
 
 Costs in actions by and against, 317, 230 
 
 Issue of (see Issue), 
 
 Action for, limiting, 93, 
 
 False Imprisonment, 
 
 Law, retained, 472, 315 
 
 Hxitting, 
 
 Suits, provisions as to, 456, . 
 
 limitation not to extend to, 74, 6^ 
 
 Rules of supreme court, abrogated, 470, 313 
 
 McaminatUm, 
 
 O party as a witness, 390, 277 
 
 Of co-plaintiff or. co^efendant,. 397, 280 
 
 F. 
 
 Fact, 
 
 Failure to Anewer, 
 Judgment on, 246, 161 
 
 Feigned IsgUe, 
 Abolished, and substitute therefor, 72, 60 
 
 Female, 
 Arrest of, 179, 126 
 
 Ferries, 
 Jurisdiction of county court as to, 30, 30 
 
 Fictitious Ifame, 
 When may be used, 175, i j23 
 
INDEX. 345 
 
 FUing^ page. 
 
 Pleadingrs, 416, 297 
 
 Notice of lie pendens, 132, 92 
 
 TraiiBCript of judgment, 282, 193 
 
 FisJieries^ 
 
 Jurisdiction of county court as to, 30, 30 
 
 Foreclosure of Mortgage^ • 
 
 In county court, ^, 30 
 
 Notice to defendant in actione for, 1®), 90 
 
 For^n Corporation^ 
 
 Service of summons on, 135, . . ; 98 
 
 Action against, 427, ^ 3j0 
 
 Forf^ted Reoognizahces^ 
 
 Froceedings for remission of, 30, 30 
 
 Frmid^ 
 
 Action for relief ongronndo^91 6T 
 
 Frivdlou-8^ 
 
 Answer, reply, demurrer, judgment on, 247, 162 
 
 Furtfier Time. 
 (See Time.) 
 
 General Sessions of the Peace^ 
 When jury to 'be enmrnoned for, 32, 31 
 
 General Terms^ 
 Of supreme court, 18, 21 
 
 Genuineness^ 
 Of paper, admission of, 38S,.... 276 
 
 Governor^ 
 
 To appoint term? of npreme court, 22, 23, 23 
 
 To designate judges, 23, .,..., 23 
 
 To transmit appointment to secretary of state, 25, 24 
 
 Guardian, 
 (See Infant.) 
 
 H. 
 
 Habitual Drunkard^ 
 
 Care and custody of, 30, 36 
 
 Service of summons oil, 134, 94 
 
 Hamilton County^ 
 With Fulton, when one county, 20, '. 23 
 
346 INDEX. 
 
 Heirs, etc., of Judgment Debtor, paoe. 
 
 ProcecaingB against, 376-381 871,272 
 
 BighSeas, 
 ABBanlt or imprisonmeDt on, action for, 65 55 
 
 Husband and Wife, 
 Action by and against, 114, 78 
 
 L 
 
 Conrt for trial of, 9, 7 
 
 Infanta, 
 
 Mnst appear by gnardian, lis, 79 
 
 Guardian of, liow appointed, 116, 81 
 
 must give secnrity, ^, 298 
 
 service of snmmons on, 134, 94 
 
 responsible for costs, 316 229 
 
 Saleofrealproperty of, 30 30 
 
 Specific performance by infant heir, 30, 30 
 
 InferwT Courts, 
 
 (See Marine conrts ; Justices^ courts ; District conrts.) 
 
 Eeview of special proceedings in, 318, 230 
 
 Inunction, 
 
 Writ of, abolished, and order substituted therefor, 818, 140 
 
 Order, in what cases granted, 819, 141 
 
 when granted, 2SS, 141 
 
 after answer, 221, 142 
 
 security upon granting, ^i, .*. 142 
 
 to show cause against, with restraint in meantime, 223 * 143 
 
 to suspend business of corporation, 224, 143 
 
 how vacated or modified, 225, 143 
 
 vacating of, how opposed, 226, 144 
 
 effect o^ on time of limitation, 105, 75 
 
 by whom granted, 218, 140 
 
 Injury, 
 
 To person or rights, limitation in action for, 91, 67 
 
 Insane, 
 
 Plaintiff, limitation of action by, 101, 73 
 
 ^leolvent. 
 
 Voluntary assignment by, 80, 30 
 
 Of writing, how obtained, 388, 276 
 
 Infbrmatien, 
 
 In nature of quo warranto abolished, 428, .'. 301 
 
 actions in place of, 429-446, .'. 301-306 
 
 Installment, 
 
 Action for, on bond, 63, 42 
 
INDEX. 347 
 
 Instrument^ under seal, page. 
 
 Liniltation of action on, 90, 67 
 
 Interest^ 
 
 All parties in, to be joined, 117, 82 
 
 exceptions, 117, 82 
 
 Not a diBqnalification of witness, 398, 281 
 
 In addition to costs, when allowed, 310, : 227 
 
 Real party in to be plaintiff. 111, 77 
 
 Irrdevant mattery 
 
 To be struck oat, 160, 114 
 
 Isstte, 
 
 When it arises, and kinds of, 248 163 
 
 Offact, when it arises, 260, 163 
 
 law, 249, 163 
 
 law and fact may arise, then issae of law to be tried first, 251, 164 
 
 fact to be tried by jury, 253, 164 
 
 exceptions, 253, 164 
 
 to be tried by conrt, what, 254 165 
 
 in supreme court, how tried, 2£S 165 
 
 All to he Tried before a single judge,* 255 -. 165 
 
 Notice of tnal of, when and by whom, 256, 168 
 
 Note of, to be fhrnisbed to clerk. 256 168 
 
 what to contain, 256 168 
 
 clerk's duty, on receipt of, 256, 168 
 
 On calendar, how disposed of, 257, 171 
 
 May be referred by consent of parties, 270, 182 
 
 without consent of parties, 271, 182 
 
 Either parly ffivinjj notice may bring to trial, 253, 172 
 
 Feigned, abolished, 72, 60 
 
 Items of account^ 
 
 Not to be inserted in pleadings, 158, 113 
 
 How to be delivered, 158, 113 
 
 Further bill of, 158, 113 
 
 J.. 
 
 Joinder^ 
 
 Of caupes of action, 167, 117 
 
 Of parties, 119, 82 
 
 Joint Debtors^ 
 Heirs, devisees, legatees, and tenants holding under a judgment debtor, 
 
 proceedings auaiust, 375-381, 270-272 
 
 Not originaily aumnioned, may h^ summoned after judgment, 375-381, . . 270-272 
 
 Proceedings against, 136, 101 
 
 Judge, 
 
 Business out of coart, 27, 25 
 
 Proceediugs before, in first judicial district, 27, 25 
 
 Inability to hold special terms, etc., 26, 25 
 
 County, powers of, in actions m supreme court, 403, 293 
 
 Disobeying order of, 302, 211 
 
 Judgment, 
 
 Defined,245, * 158 
 
 On failare to answer, 246, 161 
 
 On frivolous demurrer, answer or reply, 247, 162 
 
348 INDEX. 
 
 OiiTerdict, sabject to the opinion of theconrt, 265.388 176,236 
 
 May be for or against one or more of plaintiffs or defendants, 274, 188 
 
 May determine nitimate ri'iht of parties as between themselves, 274, 188 
 
 May render jndgment against some defendants and leave action {o con- 
 
 ■- tinne against others, ^i'4, ., 188 
 
 May grant affirmative relief to defendant, 274, 188 
 
 ' Court may dismiss complaint against some defendants, 274, 1S8 
 
 Amonnt of relief if no answer, 275, ', ^^ ., 189 
 
 Where damages recoverable, rate's of; 276, ..'...'. ,' 189 
 
 in action to recover personal property, 277, . '189 
 
 To be entered on direction of single judge, subject to review, 278, 190 
 
 To be entered on report of referees, subject to review, 278,. ; .-. 190 
 
 Book to be kept, 279, 190 
 
 Judgments, bow entered in, 280, ~ 190 
 
 Judgments entered in, what to. specify, 280, '. ] 190 
 
 Koll, party may furnish, 281, 191 
 
 clerk. to form, wben, -280^ ^-.^ 191 
 
 where controversy submitted without action, 373, '..'..'..'. 270 
 
 on appeal, 367, .. . _ j..:.. 263 
 
 On filing roll on j.udgment directing, payment of money, may be docketed 
 
 and become a lien on real property, ^, , 193 
 
 How enforced, 285 (see Executions) 196 
 
 By confession, .83, 382, 384, >. 42,273 
 
 Action on, S3, 71 ; 12,60 
 
 How pleaded, 161, 114 
 
 Not to be reversed for certain errors, 176, 123 
 
 Of court of appeals, with what concurrence, 14, 18 
 
 Of supreme-court, general term, how pronounced. 19 21 
 
 Of justice of peace, docketing of. 63, .' 48 
 
 No lien on real estate, unless for $25 damages, 63, 49 
 
 Beversed, effect of time on limitation, 104, 74 
 
 ' Relief from, incase of mistake, 174, 122 
 
 Against married women, 274, 188 
 
 Lien of, may be released pending appeal from, 282, 193 
 
 JaSgment Boole, 
 
 Clerk to keep, 279, 190 
 
 Judgment Creditor, 
 Allowance to, when examined as a witness, 301, 211 
 
 Judgment Debtor, 
 DeatQ of, after judgmetit, proceedings against heirs, etc., 0^ 376,* 2tl 
 
 Jurisdietum of Court. 
 
 (See title of each court.) 
 
 Continued, except as altered, 10, 1 '7 
 
 Wben deemed acquired, 139, 102 
 
 Jurors, 
 For county courts and courts of sessions, 32, M 
 
 Jury. 
 (See Trial; Verdict.) 
 
 Juetioes, 
 
 Duties, where return ordered, 360, 2J7 
 
 Service of order on, 359 ggS 
 
 Pee to, for return, 371,..'... .......... 267 
 
 Removal, death or insanity ofL after appeal from and before return. 36i 2S8 
 
 Gone out ol office, 361, !.„ . 257 
 
JNDEX. 349 
 
 Justicei' Courts, page. 
 
 In city of New York, . style of; 66, S5 
 
 Jarisdiction of, 66 , • 56 
 
 Of cities,- jnriediction.of, 67, iiL: .... 57 
 
 General provisions as to, 68, 58 
 
 'Actions in, when appeal from, to coart of appeals, 11, 13 
 
 Review of judgments of, 352, 249 
 
 Certain provisions of revised statutes as to jurisdiction of, repealed, 52, 37 
 
 Kepealuot ta affect actions commenced, £2, >. . .^ -.t ...... 37 
 
 Justices of tlie.Feaie, 
 
 Courts of a.mendment of statutes relating" to, 52; >....'-.. 37 
 
 jurisdiction of, S3, 54, 42,43 
 
 proceedings in, in actions to recover possession ol personal proper- 
 ty, 53 , 42 
 
 Proceedings where title to real property in question, £5, et seq., 44 
 
 where several causes of action, 62r... 48 
 
 mlesin,64, 52 
 
 To give transcript of judgment, 63, 49 
 
 Appeals from,-3^, 251 
 
 costsonj371, 1. ... 267 
 
 , Actions on judgments of, 71, 60 
 
 JufHflcation, 
 
 How pleaded, 165, :..... 115 
 
 Ofbail,195 133 
 
 Of sureties, 344, 242 
 
 1m 
 
 Lands, 
 How affected l)y judgment, 282, ^. 139 
 
 Lawsi etc.. 
 Of other states, etc., evidence of, 436, ;..-. 299 
 
 Legal Notices, 
 Publication oi; 425, -..;...-. ;. 299 
 
 Letters Pateni, ^r,' 
 
 Action to vacate, etc., 445j 306 
 
 On grants of real property, 77, 63 
 
 LUn, 
 On real property, how obtained, 63, 282,. 49, 193 
 
 ^■' Liability, ■,'.^-..-.-^ 
 
 Created by statute, action for, w;ithin what, time, 91, 67 
 
 Libel, 
 
 Pleadings in action for, 164, 166, , 115 
 
 Within what time action to be brought, 93, 68 
 
 ■ Actionlbr,54,. ....„,.... V 43 
 
 IAmUaiion,time of, 
 
 .Repeal of statutes as to, 73, ■...,,,..^..-,...^...... '',61 
 
 Inaction to recover real property, 75, et seq., ,'.!/".'.'.'.'.' "62 
 
 . In other actions, 80, ;..,.'..' .-.!......; ,... 64 
 
 In cases of disability, 88,101,: 66,73 
 
 30 
 
350 INDEX. 
 
 PAGE. 
 
 Inactiononbills, etc., of a moneyed corporation, 108, 75 
 
 against moneyed corporations, 109, 75 
 
 or assault and battery, 93, 08 
 
 for balance of accounts, 95, 09 
 
 on contract, 91, t '. 07 
 
 on sealed instrnment, 90, 67 
 
 against sheri^ or coroner, or constable, 92, 94, 68 
 
 for crim. con., 91, 67 
 
 on a judgment or decree. 90, 67 
 
 for false imprisonment, 93, 68 
 
 in cases of fraud, 91, .• 67 
 
 for taking, detaining or Ininring goods or chattels, 91, 67 
 
 for injury to person or rignt, not being contract, 91, 67 
 
 on statntes for penalty or forfeitnre, ^ 96, 68,69 
 
 for trespass on real property, 91, 67 
 
 for libel or slander, 93, ; 68 
 
 not specially provided for, 97, 69 
 
 in name of people, 98, 69 
 
 Where defendant out of state, 100, 72 
 
 . Where either party dies, 102, 74 
 
 Against alien enemy, life, 74 
 
 Where judgment reversed, 104, 74 
 
 Where action stayed by iiy unction or statutory prohibition, 105, 75 
 
 Where two or more disabilities, 107, * 75 
 
 Effect of part payment on, 110, 76 
 
 How case taken out of Btatate, 110, 76 
 
 IM Pendens, 
 
 Notice of, 132, 92 
 
 Cancellation of record of, 132, 92 
 
 Which are, 123, 125, 86,87 
 
 Lost, 
 for, 423 
 «, 
 
 LumUie, 
 
 Pleading or paper, copy substituted for, 422, 298 
 
 Docket or record injustices' court. 71,.. 60 
 
 Care and custody o^ 30, 30 
 
 Service of Bummons on committee o^ 134, 94 
 
 M. 
 
 Matt, 
 Service ty, 410-413, 295,296 
 
 Maliciout Prosecution, 
 Action for, 54, 43 
 
 Mandamus, 
 Proceedings on, not altered, 471, 314 
 
 Marine Court, 
 
 Jurisdiction oi; 65, 65 
 
 General provision as to, ^ 68 
 
 No appeal from action in, to court of appeals, unless by order of general 
 
 term, 11, 14 
 
 Review of judgment of, ^ ^ 35,249 
 
INDEX. 851 
 
 Uarnage of Partiet, paoe. 
 
 To action, effect of, 131, 84 
 
 Married Women, 
 
 Action by and against, 114, 78 
 
 Judgment against, 274 188 
 
 Execation against, 287, .' 198 
 
 JUaterial Allegation, 
 
 Whentakenaa tine, 168, , 118 
 
 Material Variance. 
 (See Variance.) 
 
 Mayors' Courte, 
 
 Jurisdiction of, 33, 83 
 
 Transfer of causes in, taconntycoort, 33,... 34 
 
 Merchant's Service, 
 
 Action by or against persons in, 65, 54 
 
 Merger, 
 
 Of rigbt to prosecute, 7, 4 
 
 Mistake. 
 
 (See Amendment: Yariance.) 
 
 Relief fkom judgment taken against by, 174, 122 
 
 Mortgage, 
 
 Foreclosure of, 30, 80 
 
 Of real property of religions corporation, 30, 30 
 
 Of real estate of infant, 30, 30 
 
 Action lonnded on, service of summons in, 135, 96 
 
 Motion, 
 
 Whatisa, 401, 291 
 
 Howmade,401 291 
 
 Where made, 401, 291 
 
 Notice of, 402 292 
 
 Transfer of hearing of, 403, 293 
 
 Ctostsof; 315, .' 229 
 
 Affidavit of a person refusing, how obtained, 401 291 
 
 Decision o^ in certain cases, within what time, 401, 291 
 
 For new trial where made, in first instance, 265, 176 
 
 N. 
 
 Name, 
 When defendant's, unknown, 175,- 123 
 
 Neu) Promise, 
 Must be in writing, 110, 78 
 
 Non-resident Debtors. 
 
 (See Attachment.) 
 
 Sernce of summons on,135, 98 
 
 Ntffo/ Issue, 
 When and how served, and what to contain, 256 168 
 
352 KCDEX. 
 
 To be in writing, 408, - •■• ••• - ^f* 
 
 Service ofU09,..". ..'. 295 
 
 by mail, when, 410-412, ., ►. 29^. 296 
 
 how,411, ,••■• . S^ 
 
 on attorney, wlren, 417,..;..;;;. ■■■ ^ 
 
 on defendant who appears, 416, ._.; 297 
 
 on party outof 8tate,4]5,..;;.;.. ..;...; •.; 297 
 
 to bring into contempt, 418, 897 
 
 Length of, on pergonal service, 413,...'^....' — ; 296 
 
 on mail service, 412, ,....,;;...'..-■. *v.iv; ;. ; ' 296 
 
 Legal, pnblication of, 425, 299 
 
 On motion, length, 402, 292 
 
 Trial,a5«...... . , 368 
 
 At adjourned circuit or county court, 24, 24 
 
 Of no personal claim, 130 90 
 
 Nuisance, , , 
 
 Writof, abolielieai453, ..;.......... 307 
 
 Action for, 454, : 308 
 
 0-, 
 
 Oath, 
 
 Referees have powerto administer, 421, 1 298 
 
 Of compromise, 64, 385, 387, ,...■ 62, 275, 276 
 
 Order, 
 
 Defined, 400, 289 
 
 Of county judge, review of, 403, ....'*-,.,..,,. .,293 
 
 Transfer of hearing of, 404, .;, :.. 293 
 
 Of supreme court, as to terms abrogated, 17, ..,.. 20 
 
 Madeoutbf court withon t notice, how vacated, 324, ... — ;. 233 
 
 Intermediate, review of, 339,.... .--■' 234 
 
 Oyer and Termmer, 
 
 Courtsof,17. ., • 30 
 
 Bepeal of statutes relating to, 17, : 20 
 
 Number of terms of, in each county, 80, ; . . . ; — 23 
 
 ' Extraordinary, how appointed, 23, 23 
 
 I iPlacesahd times of holding, 84; : ..y 24 
 
 Where to be held, 31 ,. ,23 
 
 r Judges, how designated, 92,. ..,........"'..... 23 
 
 Appointment of, to be published, 25, < ,..,,...,.,;... , 24 
 
 Judges unable to prciidfe; 26, ...... 25 
 
 buciness out of court, 27, 25 
 
 Supervisors to provide room for holding, 28, 25 
 
 P. 
 
 Paper, ' 
 
 Service of (see Service). 
 
 Admission of, 388, 276 
 
 ' Production of, 388...... v.. ■ 276 
 
 Printing, cost ot, allowed, 811, — , 227 
 
 Lost, copy of it may be substituted for, 423, 298 
 
 Partiei to Action, ' 
 
 Who to be (See Plaintiff; DefenOuit). 
 
 Cannot serve summons, 133,.....' > 9S 
 
rtTDBX. 353 
 
 Partition, pass. 
 
 Of real property, action for, 44S, 306 
 
 county court has jurisdiction o<^ 30, 30 
 
 noticeof no personal claim, 130, • 30 
 
 Partners, ' 
 
 Vbere some only made parties. 136, 
 
 Party out qf State, 
 
 Service of summons on, 135,. 
 
 Party to Action, 
 
 Examination of, 389-392,... 277. 278 
 
 may be rebutted, 393, 278 
 
 for co-plaintiff or defendant, 397, . 
 1 Del " 
 
 Examined on own behalf, 3.94-S97, 279, 280 
 
 SeAisingtobe«xamined,.394,»..^ •-- 279 
 
 Penal Action, ' 
 Time of limitationB in, 92, 68 
 
 Penalty, given by Statute, 
 Action for, 92, 
 
 People of State, Actiont by. 
 
 Time of limitation (see Limitation), 98, 60 
 
 Costs In actions by, 319,820 230,231 
 
 Performance, 
 How pleaded, 162, 114 
 
 Execution against, 286-289, 197-199 
 
 Personal Property, 
 
 Defined, 468, 311 
 
 In action to recover; plaintiff may claim delivery of, 206, 136 
 
 proceedings by plaintiff, where delivery claimed, 207, 136 
 
 EegniBition to sheriff to take, 208, 137 
 
 sheriff's duty thereon, 209-217, 137,140 
 
 Procee^ngs by defendant, 210-213, 138,139 
 
 where property claimed by third party, 212, 139 
 
 ^ndgment in action, to recover, 277 189 
 
 Execution for delivery of possession of. 286, 289, 197, 199 
 
 ■ Personal daim, 
 
 Noticeof no, 130, 90 
 
 Plaintiff, , . : ; 
 
 Defined, 70, 60 
 
 Whotobe,lll, 77 
 
 Grantee of land may make grantor, bis heirs, etc, plaintiffs, when, 111, 77 
 
 When panyrefBses tor be made; 119,. 82 
 
 In case of change of interest, 121, 84 
 
 All parties in interest to be, exceptions, 117-119, 82 
 
 Harried women, 114, 78 
 
 Infant, 116, 79 
 
 May fine for self and others, 119, . . 82 
 
 ln.attactament, may sue instead of sheriff, 288, 150 
 
 When deemed to have accepted baU, 192, ...;......... 131 
 
 30* ■ ' 
 
354 INDEX. 
 
 in action to recover personal property, rights of (see Personal Proper- 
 ty), 206, 13o 
 
 To famlsli court witli copy summons, pleadings, etc., on jury trial, 259, 172 
 
 Pleading, 
 
 Rulesof,140, 103 
 
 Oral, in what courts, 64, 62 
 
 Lost, copy may he substituted for, 422, 298 
 
 To he suhscribed, 167, 117 
 
 When and how to be verifled, 157, 112 
 
 In actions by attorney-general for real property, 157, 112 
 
 Keed not contain items of account, 168, 113 
 
 Several causes of action may he united in, 167, 117 
 
 A judgment, 161, 114 
 
 Performance, 162, 114 
 
 A private statute, 163, 115 
 
 In actions of libel and slander, 164, 165, IIP 
 
 to recover real property, 166, 115 
 
 Construction of, 159, ; 114 
 
 Amendment of. 172, 120 
 
 Variance of, with proof; effect of, 169, 119 
 
 Haterial allegation, when taken as true, 168, 118 
 
 when to be deemed controverted, 168, 118 
 
 Brror in, may be disregarded, when, 176, 123 
 
 Tobeflled,416 297 
 
 Indefinite or uncertain allegations in, 160, 114 
 
 Irrelevant or redundant matter in, 160, 114 
 
 Supplemental, when, 177 (See Complaint ; Answer ^ Beply ; Demurrer), . . 123 
 
 In supreme court in actions discontinued before a justice, 61, 47 
 
 Affidavit of deposit In, 138, ;... 102 
 
 Postponement of IHal, 
 Conditions of, 314 228 
 
 ' i^actice and Bides, 
 
 Inconsistent with code, abolished, 469, 312 
 
 Betained, 469, 312 
 
 Of justices' courts, 64, .' 68 
 
 To be settled by Judges. 470, 313 
 
 PKcedent Condltiong, 
 How pleaded,. 162, lU 
 
 Printing, 
 Papers, costs of, allowed, when, 311, 227 
 
 Private Statute, 
 How pleaded, 163, 115 
 
 Prohibition, 
 Proceedings on, not affected, 471, 314 
 
 Promissory Note, 
 (See Bill ofExchange.) 
 
 Property, 
 
 Defined,464, 811 
 
 Execution against, 286, 197 
 
rNDBX. 355 
 
 Puilicatton. pase. 
 (See Sn1>atitnted Service.) 
 
 Of legal notices, 425, 299 
 
 Of appointment of terme, ^, 24 
 
 OftermsefcoantTConit, 31, 30 
 
 Q. 
 
 Quo Warranto, 
 
 Writ of; abolished, 428 801 
 
 Actions in place oA 428-446, 301-306 
 
 R. 
 
 Real Name, 
 
 When not known, 175, 123 
 
 Seal Property, 
 
 Ueanrng o^ 462, 311 
 
 Action for, time of limitation, 75-82 62-64 
 
 costs,304, 218 
 
 partition of, 4ffi, 806 
 
 to determine conflicting claims to, 449, 307 
 
 Title of, in question, 55, ■ 44 
 
 Entry on, 80, 64 
 
 SecA'oer, 
 
 Appointment and fees of, 244, 156 
 
 Hay he appointed in supplementary proceedings, 298, 209 
 
 Of estate of judgment debtor, action by, 299, 210 
 
 When Tested with property, 298, 210 
 
 Order appointing, to be filed and recorded, 298, 210 
 
 Becorderi' Courts, 
 
 Jurisdiction of; 33, 33 
 
 Bemoval of causes in, to county courts, 83, 34 
 
 Sedundant matter. 
 
 To be struck ont, 160, 114 
 
 How chosen, 273, 187 
 
 Report o( wliat to contain, 272, 184 
 
 to stand as decision of court, 2^, 164 
 
 judgment to be entered on, 272, 278, 184,190 
 
 within what time to be made^ 273, 187 
 
 effect of not making within time, 273, 187 
 
 Powersof,421 298 
 
 Feesto,8i8, 228 
 
 Disobeying orders of, 302, 211 
 
 In proceedings supplementary to execution, 300, 211 
 
 Costs of postponing trial before, 314, 228 
 
 Brferenee, 
 
 When may be ordered, 246, 269, 270, 2n, 300, 161,181,182,211 
 
 Choice of referees on, 273, ISj 
 
 In proceedings supplementaryto execution, 800,.. « - 211 
 
 (See Issue; Eeferee ; Trial by Beferee.) 
 
 Betiglous corporation. 
 (See Corporation.) 
 
SSff INDBX 
 
 DiTiBionof, 1 ...:j.. ■ 3 
 
 Civil and criminal, not merged, 7, *^ j * ' 4' 
 
 Of action. (See JneticeB of tlie Peace ; Superior Conrt; Supreme Court; Mayors' 
 Courts ; Recorders' Courts ; Court of Common Fleas in New Tork city.) 
 
 When may be put in, and wliat to contain, 153,. ...i. ..;.:.:. 110 
 
 When conrt may allow, 153, 110 
 
 And demurrer, when allowed, 153, 110 
 
 Time to, may be enlarged, 113, 1S2 
 
 after amendment, 174, ', via 
 
 Supplemental, when allowed, 176, 123 
 
 TriTolons, judgment on, 247, 162 
 
 ,•:; ,.. (See Pleading.) , , ^..,, 
 
 Meports, 
 Of other states, evidence of, 426, '.. 399 
 
 Sqxyrt. 
 (See Referee.) 
 
 Beepondent, 
 Defined (see Appeal), 326, 
 
 Betum. 
 From justice's court. (See Justices.) 
 
 Meoerial of Judgment, 
 Pot certain errors, 176 ; .• ..'......: ; 123 
 
 Beview, 
 pfevidence taken upon trial, how, 268,., , 180 
 
 Bvles, general, of Court of Appealt, 
 
 At! to causes on calendar, 13, , — .... , 17 
 
 In courts of justices of the peace; 64, " " "--" •'■•' 52 
 
 And practice inconsistent, abrogated, 469, 312 
 
 Of supreme court, abrogated, 470, . : 313 
 
 Hew, to be fcamed, 470, 313 
 
 Of Pleading. (See Pleading,) 
 
 S. 
 
 Scire Facias, 
 
 Writ of, abolished, 428, 301 
 
 j&xstionsin place of, 428^446, ; ... SOl-^aoe 
 
 Secretary of State, 
 To publish appointment of^terms, 25, . ... . . ., 24 
 
 Action for, 54, , 43 
 
 Service, 
 
 How to be made, 408, 409, . 
 By mail, 410-412, 
 
ETOHX. 36'? 
 
 On defendant who has not answered, 414, 396 
 
 residing cat of state, 415, 297 
 
 On attorney, 417 297 
 
 To bring into contempt, 418, 297 
 
 Of snmmons, by whom, 133, 93 
 
 how, 134, 94 
 
 how proved, 138 102 
 
 g:ives jurisdiction of action, 139, 102 
 
 Of amended complaint, 146, 105 
 
 Sessions, Com'tof, 
 
 Jnryin,32, 31 
 
 Effect of assignment on, 113 
 
 Settlement, 
 Ofaction, costs on, 308,322, ; .' 224,231 
 
 Several S^endaiits, 
 
 Costs in actions against, 306 215 
 
 ProceecUngs where some only served, 136, 101 
 
 Sham, 
 
 Answers and defenses may be stricken out, 152 108 
 
 3/i£nffs, 
 
 Tb provide rooms, etc., for court of appeals, 15, 19 
 
 in certain cases, 24, 28, - . .-. 24, 25 
 
 Order of arrest to be delivered to, 184, 128 
 
 To deliver copy order of arrest, etc., to defendant, 184, 128 
 
 Duty on making an arrest, 185, 128 
 
 on surrender of defendant, in discharge of bail, 188, 130 
 
 To serve copy undertaking of bail, etc., etc., 192 131 
 
 When exonerated from liability, 192, 131 
 
 May give notice of bail justifying, 193 132 
 
 To give certificate w'here deposit made, 197, 133 
 
 To pay deposit into court, 198, 134 
 
 When liable as bail, and how discharged, 201 135 
 
 Proceedings on judgment against, as bail, 202, 135 
 
 Bail taken on arrest, liable to, 203, 135 
 
 Duty in case of claim of delivery of personal property to, 209, 217 1&7, 140 
 
 When and where to return execution, 290, 200 
 
 Certain existing laws as to execution retained, 291, 201 
 
 To serve summons, etc., as process, 419 297 
 
 To serve and return summons, 13.3,' 93 
 
 Duty of, on executiug writ of attachment, 237, 242, 149, 152 
 
 Peesof,243 153 
 
 Slander, 
 
 Action for, 54, 43 
 
 pleadings in, 164, 165, 115 
 
 Special Proceeamt/, 
 
 Appeal ftom inferior court in, when deemed an action, 318, 230 
 
 Definition of; 3, 4 
 
 Appealsin, , 232 
 
 Special Terms, 
 
 ITumber of; in each county, 20, 22 
 
 Tl> be held with circuits, 21, 22 
 
 How designated, 22, 23, 23 
 
358 
 
 Where to be held, 24, 
 
 Booms, how provided, ^, 
 Adjoomment of, 34, 
 
 SpaAal Verdict, 
 Defined, 260, 
 
 Statutes, 
 
 As to terms of Bnpreme court, etc., repealed, 17, 20 
 
 As to jurisdiction of county courts, 29^ 26 
 
 justices' courts, 52, 37 
 
 times of limitation repealed, 73, 61 
 
 Imprisonment for debt not affected, 178, 124 
 
 review of justices' judgments repealed, 351, 2i7 
 
 Private, how pleaded, 163, 115 
 
 Stemgrirpner, 
 
 In supreme court, 256 168 
 
 In surrogate court, 256, 168 
 
 In district courts of N. T., 66, 56 
 
 Controversy without suit, 372-374, 269,270 
 
 Substituted Service, 
 
 Order for, in what cases, 135, 98 
 
 The complaint to be filed, when, 135, 98 
 
 The summons to state what, 135, 96 
 
 When complete. 187, 101 
 
 Proof of, 138 102 
 
 Summons, 
 
 Action to be commenced by, 127, 88 
 
 Bequisites of, 128, 129, 88,89 
 
 TSo complaint need be served with, 130, 90 
 
 By whom served, 138, '. 93 
 
 How served, 134, r. 94 
 
 Publication of, in what cases, 135, 98 
 
 Proceedings where served on one of several defendants, 136, 101 
 
 Service of by publication, when complete, 137, 101 
 
 how proved,138, 102 
 
 gives jurisdiction to court, 139, 102 
 
 Where publication ordered, what to state, 135, ^ 98 
 
 To be Med, 416, 297 
 
 Proof of service of, 138, : 102 
 
 If last day, not reckoned, 407, 294 
 
 Superior Court, 
 
 Jurisdiction of, 33, 83 
 
 Termsof, 35, 35 
 
 How held, 36, 46 35,36 
 
 Judgments, when and how given, 37, 38, 85 
 
 What concurrence necessary to judgment, 38, 35 
 
 Crier of, to oe appointed, 39, V 35 
 
 His salary, 39,. 35 
 
 To consist of six justices, 40, 35 
 
 Extra justices to be elected, 41 35 
 
 to be classified, 43, 35 
 
 vacancyin offlceof,44, 35 
 
 duties and salaries of, 45 35 
 
 Transfer of suits to, 47, 36 
 
DTDBX. 359^ 
 
 Jnrisdictioii OTer transferred enits, 48, 36 
 
 Appeals from judgment of, on transferred snits, 60, 86 
 
 Section twenty-eight to apply to, 51 S6 
 
 Removal of BnltB in, into supreme court, 33, 33 
 
 Svpervisori, 
 
 Dutieaotas, 
 
 To fix salary of crier of superior court, 39. 
 
 Pleading, when allowed, 177i 133 
 
 Supplementary, 
 
 Proceedings, to execution, 292-302, 204-2U 
 
 (See Execution.) 
 
 Supreme Court, 
 
 Statutes relating to, repealed, 17, 20 
 
 General terms of, 18, 21 
 
 Judgment at general term, 19, 21 
 
 Terms of circuit court and special terms, 20, 22 
 
 Transfer of actions from, to superior court, 47, „ 38 
 
 Eules abrogated, 469, -. 312 
 
 Judges to frame other rules, 470, 313 
 
 Bemoval into, of suits In superior court, S3,. 33 
 
 in common pleas', 33, 33 
 
 Pleadings In, in actions discontinued before justice, 60, 47 
 
 Costs, in like actions, 61, 47 
 
 Surrender, 
 
 Of defendant, in discharge of bail, 188, 130 
 
 Surrogate, 
 
 Courts, appeals from, not affected, 471, 314 
 
 Terms, 
 
 Of court of appeals, 13, 17 
 
 Supreme court, 18, et seq., 21 
 
 County courts, 31 30 
 
 Common pleas, 35, 35 
 
 Superior court, 35, 46, 35, 36 
 
 Thing irt action. 
 
 Assignment of, 112, 77 
 
 Time, 
 
 How computed, 407, 294 
 
 May be enlarged, 405 - 293 
 
 Of publication of legal notices, 425, 299 
 
 To answer or demur, 143, 
 Of limitation, (see Limr 
 
 (see Limitation.) 
 
 Traneitory actions. 
 What are, 126, .' 87 
 
360 IKDBX, 
 
 Transffript, fasx. 
 
 Of judgment roll of judgment directing payment of money, may be 
 
 docketed and become a lien- on real property, 282, '. : 193 
 
 When conrt may release lien pending appeal, 282, 193 
 
 Otjndgment, justice to give, 63, 49 
 
 Judgment entered on justice's, may be docketed in other counties, 
 
 how,63 49 
 
 Trawtfer, 
 
 Ofinterest in action, effect of, 121 84 
 
 Of actions from supreme to superior court, 47, 36 
 
 Ofpropertyof judgment debtor, 298, 299, ,..., 209, 21» 
 
 I)efined,252, 164 
 
 Of issue (see Issue), place of, 126, ... :.j 87 
 
 Change of place of, 125j , 97 
 
 By jury, either party giving notice may bring issue to trial, 258," 172 
 
 Plaintiff to furnish court with copy of summons and pleadings, etc., 259, 172 
 
 Verdlct,260, 17?: 
 
 in an action to recover specific personal property, 261, ... . , 173: 
 
 in certain other actions, 261, ; 17S 
 
 In all other cases, 261, 173 
 
 particular questions to be stated in writing, and a written find- 
 ing directed thereon, ^1, .. 17di 
 
 action of court after 264, 17S 
 
 judgment on, when final, 263, 176 
 
 By jury (see Verdict), 258-265 172-176 
 
 may be waived, how and when, 266, ,- ■ 177 
 
 Postponement of, on what terms, 314 :,. . . 228 
 
 Issues of fact triable by court or jury must be tried before single 
 
 judge,255, 165 
 
 Issues of fact in supreme court, by what courts triable, 255, 165 
 
 of law, by what courts triable, 255, 165 
 
 By the court, of question of fact,^ 
 
 decision to be written and to be filed with clerk, 267, 178 
 
 exceptions to matters of law arising on such trial, when to 
 
 betaken. 268, 180 
 
 review of evidence on mich trial, how had, 268 180 
 
 time within which decision to be made by court, 267, 178 
 
 decision, what to contain, 267, 178 
 
 judgment to be entered upon, when, 267, 178 
 
 By the conrt, of issue of law^ 
 
 proceedings on judgment, 269 181 
 
 'when may be had, 270, 271. ... 182, 183 
 
 on report, to stand as decision of court, 272, ; 1 184 
 
 judgment; to be entered on report, 278, ..i.i.' ..■ 190 
 
 (See Issue ; Eeferees ; Reference.) 
 
 order for, in place of feigned issue, 72, ■ 60 
 
 report to be made within- what-time, -273, .■,.-...:..:'.'.>. 187 
 
 effect ofnot making within time, 273, 187 
 
 , (Seelgsue,> ■■., 
 
 Trustee, 
 
 Of express trust, action by, 113, 78 
 
 Costs In, 317, : 230 
 
 Uhtrrtpike Boads, 
 
 Jurisdiction of county court as to, 30, ; 30 
 
 U. 
 
 Uneowtd Mind^ 
 
 Persons of, 30, ■ 80 
 
 Service of summons on, 134, -ji 
 
361 
 
 V. 
 
 VariaTtce, 
 
 Between pleading and proo^ 169, . 
 
 Immaterial, 170, 
 
 What is not, 171, 
 
 General, defined, 260, 
 
 Special, 260, 
 
 In certain cases, 261, 
 
 To be ffiven in writing, when, 261, 
 
 Special, to be filed, 261, 
 
 Inconsistent with general verdict, 262, 
 
 For plaintifif in action to recover money only, 263, 
 
 Action of court and clerk after, 264, 
 
 Sabject to the opinion of the conrt, 265, f 
 
 119 
 119 
 119 
 
 172 
 178 
 173 
 173 
 173 
 173 
 173 
 175 
 176,235 
 
 Appeal ftom jndgment entered npon, 265, 333, 176, ! 
 
 Of pleading, when, 157, . 
 
 Verification, 
 
 112 
 
 Certain judgment on, 42^, . 
 
 Action of, abolished, 450, 
 Action for, 451 
 
 W. 
 
 Warrant of Attorney, 
 
 Waste, 
 
 307 
 307 
 
 Riamination of, 898, 399, '. 281,237 
 
 Bzamination of parties as, 389-397, 277,280 
 
 In proceedings supplementary to execntion, 295, 301, 207, 211 
 
 Assignor of thing in action, when not to be, 399, 287 
 
 Wrechs, 
 Jurisdiction of county court as to, 36, 35 
 
 Abolished, 323,. 
 
 Writ of Brror, 
 
 Writ of Bxeeutvim, 
 Abolished (see Bxecntion), 283, 
 
 WrU of Irtjunciion, 
 Abolished (see Injunction), 218, , 
 
 194 
 140 
 
 Writ of Inquiry, 
 When may issne, 246, 269, 161, 181 
 
 31